State v. Banks

2021 Ohio 3312

Opinion

[Cite as State v. Banks, 2021-Ohio-3312.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. 2020AP080018 : SIMEON BANKS : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2019CR010036

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: September 20, 2021

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

RYAN STYER MICHAEL R. PUTERBAUGH TUSCARAWAS CO. PROSC. 4096 Holiday St. NW 125 East High Ave. Canton, OH 44718 New Philadelphia, OH 44663 Tuscarawas County, Case No. 2020AP080018 2

Delaney, J.

{¶1} Appellant Simeon Banks appeals from the August 19, 2020 Judgment Entry

on Sentencing of the Tuscarawas County Court of Common Pleas. Appellee is the state

of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following evidence is adduced from the record of appellant’s jury trial.

{¶3} On October 5, 2018, Ptl. James Miller of the New Philadelphia Police

Department observed a red SUV pass his vehicle. Appellant was seated in the front

passenger seat and Miller believed appellant had an outstanding felony arrest warrant.

Miller followed the SUV to a Speedway gas station where the vehicle stopped and three

occupants got out. Miller confirmed the existence of appellant’s arrest warrant. In the

meantime, appellant returned to the vehicle and got into the driver’s seat. A female

occupant, later identified as Chasity Arthurs, got into the front passenger seat. The third

occupant of the SUV did not return to the vehicle.

{¶4} Appellant drove away from the Speedway parking lot and Miller traffic-

stopped the SUV. Miller’s cruiser camera captured the traffic stop and the video was

played at trial as appellee’s Exhibit A. Miller approached the vehicle and had a brief

conversation with appellant while he waited for backup to arrive. Upon arrival of backup,

Miller removed appellant from the SUV and patted him down. Miller found a small Pyrex

container in the front pocket of appellant’s hoodie which contained a white substance.

Miller testified that appellant said something to the effect of, “Those are my vitamins,” or

described the substance as “fiber.” Tuscarawas County, Case No. 2020AP080018 3

{¶5} Miller handed the container to another officer on the scene, Captain

Dusenberry, who placed the container on top of the vehicle. Appellee’s Exhibit C is a

photo of the container found in the pocket of appellant’s hoodie during the pat down

search; the container is round and has what was described at trial as a “teal” colored lid.

{¶6} Miller proceeded to arrest appellant on the outstanding warrant.

{¶7} Miller brought the container back to his cruiser to secure it and placed it on

the floorboard of his vehicle.

{¶8} The third original passenger in the SUV was identified as Christina Radtke.

She also had a felony arrest warrant and was eventually located at the Speedway gas

station. Miller waited outside a restroom at the gas station and heard two people talking;

Arthurs stepped out of the restroom and Radtke remained inside. Radtke was eventually

arrested on the warrant. Police searched the restroom trash can and found a green

Crown Royale bag containing a small plastic container which appeared to contain drug

residue and a pipe. Appellee’s Exhibit F is a photo of the green Crown Royale bag and

the glass pipe found inside. Appellee’s Exhibit B is a photo of the plastic container,

residue, and what appears to be a plastic straw. This plastic container is square and has

a green lid.

{¶9} The container seized from appellant is listed as Item Number 1 on appellee’s

Exhibit H, the New Philadelphia Police Department Property Submission Form. The

container found in the Crown Royale bag is listed as Item Number 2. The items were

placed into evidence and submitted to BCI. A forensic scientist tested the white powder

in Item 1 and found it to be methamphetamine in the amount of 9.92 g +/- 0.04 g.

Appellee’s Exhibit G is the laboratory report from BCI. Tuscarawas County, Case No. 2020AP080018 4

{¶10} Appellant was charged by indictment with one count of aggravated drug

possession (methamphetamine in an amount equal to or greater than 3 grams) pursuant

to R.C. 2925.11(A) and (C)(1)(b), a felony of the third degree. Appellant entered a plea

of not guilty and the matter proceeded to trial by jury. Appellant was found guilty as

charged. Appellant was sentenced to a prison term of 24 months at a subsequent

sentencing hearing.

{¶11} Appellant now appeals from the trial court’s judgment entry of sentence

dated August 19, 2020.

{¶12} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶13} “THE TRIAL COURT COMMITTED AN ERROR WHEN IT FAILED TO

DECLARE A MISTRIAL BASED UPON THE STATE’S FAILURE TO COMPLY WITH

THE RULES OF DISCOVERY.”

ANALYSIS

{¶14} In his sole assignment of error, appellant argues the trial court should have

granted his motion for mistrial because appellee allegedly failed to comply with discovery

rules. We disagree.

{¶15} During the direct testimony of Ptl. Miller, as Miller testified to the chain of

custody of the evidence seized from appellant, the prosecutor began to introduce a

property submission form of the New Philadelphia Police Department labeled as

appellee’s Exhibit I. Defense trial counsel objected, arguing the form was never provided

in discovery despite numerous requests. Defense trial counsel stated “this,” i.e. the chain

of custody delineated on the form, was the basis of appellant’s defense, and moved for a Tuscarawas County, Case No. 2020AP080018 5

mistrial because the property submission form was not disclosed. Appellee responded

that an incomplete property submission form had been in the prosecutor’s possession

throughout the case and was disclosed to appellant in discovery. The trial court denied

the motion for mistrial but excluded appellee’s Exhibit I as inadmissible.

{¶16} Upon our review of the record and the exhibits, we understand the issue as

follows. Appellee’s Exhibit H, which was admitted into evidence, is a copy of the New

Philadelphia Police Department Property Submission Form. Exhibit H lists the items

seized in the investigation, including the container with the teal lid found on appellant and

labeled as “Item 1.” The “Chain of Custody” portion at the bottom of Exhibit H is blank.

This is the Property Submission Form which was disclosed to appellant in discovery.

{¶17} Appellee’s Exhibit I, which was not admitted at trial, is a copy of the same

form as Exhibit H, but the “Chain of Custody” portion at the bottom is filled in. The Chain

of Custody portion indicates the date, item number, and officers who received submitted

pieces of evidence, received them, transported them to BCI, and returned them to the

New Philadelphia Police Department.

{¶18} We perceive appellant’s defense at trial to have been that Miller mixed up

the container he seized from appellant (teal lid) with the container he found in the green

Crown Royale bag in the women’s restroom trash can (green lid). Alternatively, appellant

argued that he believed the substance in the container was Benefiber, and/or the results

of the laboratory testing at BCI was compromised in some inexplicable way.

{¶19} Appellant argues, though, that he “built an entire defense around the

absence of the form,” implying his argument about the chain of custody was precluded by

appellee’s failure to produce the completed form. We have reviewed appellee’s Exhibit Tuscarawas County, Case No. 2020AP080018 6

I, however, and agree with appellee that the chain of custody notations fail to reveal any

new information. Instead, the form indicates the dates upon which Miller submitted the

evidence; the date the evidence was removed for transport to BCI for testing; the date the

evidence was returned to the New Philadelphia Police Department; and the date the

evidence was ultimately transported to court for trial. Movement and handling of the

evidence was documented elsewhere, i.e. in the police reports and BCI laboratory

reports, and each officer and forensic scientist in the chain of custody testified about his

or her handling of the evidence, with the exception of the evidence technician who

packaged the evidence for submission to BCI.

{¶20} Before the trial court, appellant argued appellee failed to disclose the

completed version of the form in accord with Crim.R. 16. Defense trial counsel moved

for a mistrial upon appellee’s attempted admission of Exhibit I, including the completed

Chain of Custody portion. In response to the motion for mistrial, the prosecutor stated

appellee’s Exhibit H was the version of the property form in his possession prior to trial;

appellee’s Exhibit I was an updated version brought to the courtroom accompanying the

evidence transported by the New Philadelphia Police Department.

{¶21} The trial court sustained appellant’s objection to the introduction of

appellee’s Exhibit I because it was not provided to appellant in a timely manner, but

overruled the motion for mistrial. Appellant now argues this decision was an abuse of

discretion. A trial court's decision on discovery violations is reviewed under an abuse-of-

discretion standard. State v. Hassinger, 5th Dist. Ashland No. 13-COA-038, 2014-Ohio-

3214, ¶ 15, citing State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966. In order to find

an abuse of discretion, we must determine the trial court's decision was unreasonable, Tuscarawas County, Case No. 2020AP080018 7

arbitrary or unconscionable and not merely an error of law or judgment. Id., citing State

v. Adams, 62 Ohio St.2d 151 (1980).

{¶22} Crim.R. 16 governs discovery and inspection. Subsection (L)(1) states:

The trial court may make orders regulating discovery not

inconsistent with this rule. If at any time during the course of the

proceedings it is brought to the attention of the court that a party has

failed to comply with this rule or with an order issued pursuant to this

rule, the court may order such party to permit the discovery or

inspection, grant a continuance, or prohibit the party from introducing

in evidence the material not disclosed, or it may make such other

order as it deems just under the circumstances.

{¶23} Ordinarily, a trial court must impose the least severe sanction for a

discovery violation that is consistent with the purposes of the rules of discovery. State v.

Davis, 5th Dist. Stark No. 2003CA00198, 2004-Ohio-3527, ¶ 43, citing City of Lakewood

v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), syllabus. In State v. Joseph, 73

Ohio St.3d 450, 458, 1995-Ohio-288, 653 N.E.2d 285, the Ohio Supreme Court

articulated the standard for reversals in the context of discovery violations, stating that:

“Prosecutorial violations of Crim.R. 16 are reversible only when there is a showing that

(1) the prosecution's failure to disclose was a willful violation of the rule, (2) foreknowledge

of the information would have benefited the accused in the preparation of his defense,

and (3) the accused suffered some prejudicial effect.”

{¶24} Appellant argues the appropriate resolution of the discovery violation should

have been a mistrial. Mistrials need to be declared only when the ends of justice so Tuscarawas County, Case No. 2020AP080018 8

require and a fair trial is no longer possible. State v. Davis, 5th Dist. Stark No.

2003CA00198, 2004-Ohio-3527, ¶ 35, supra, citing State v. Franklin, 62 Ohio St.3d 118,

127, 580 N.E.2d 1 (1991). The standard of review for evaluating a trial court's decision to

grant or deny a mistrial is abuse of discretion. State v. Sage, 31 Ohio St.3d 173, 182, 510

N.E.2d 343 (1987).

{¶25} Upon our review of the entire record, we conclude the trial court did not

abuse its discretion in denying appellant’s motion for a mistrial. It is apparent that the trial

court believed the prosecution's explanation for the delay in the disclosure of the evidence

and found no willful discovery violation by appellee. Appellant has not established how

possession of Exhibit I would have provided any additional foreknowledge that would

have benefited preparation of his defense; the Chain of Custody form notates information

available throughout the remainder of discovery. The evidence was seized, processed,

submitted to BCI for testing, and returned. Finally, appellant has failed to establish any

prejudicial effect arising from the discovery violation. Appellant’s argument at trial was,

e.g., that Miller confused the two containers before they were submitted into evidence, or

that BCI somehow contaminated the sample during testing. We therefore fail to discern

how this discovery violation prejudiced appellant in the preparation of his defense. The

trial court did exclude Exhibit I from admission at trial.

{¶26} We conclude that the trial court's sanction was not an abuse of discretion.

We agree with appellee that the information contained in the completed Chain of Custody

form was readily available throughout other documentation provided in discovery. Under

the circumstances, we cannot say that denying the motion for a mistrial and instead

excluding the evidence was an unreasonable sanction. Tuscarawas County, Case No. 2020AP080018 9

{¶27} Appellant’s sole assignment of error is thus overruled.

CONCLUSION

{¶28} Appellant’s sole assignment of error is overruled and the judgment of the

Tuscarawas County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Wise, Earle, J., concur.