[Cite as State v. Stinson, 2025-Ohio-2731.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
STATE OF OHIO, CASE NO. 9-24-37 PLAINTIFF-APPELLANT,
v.
BOBBY MICHAEL STINSON, OPINION AND JUDGMENT ENTRY DEFENDANT-APPELLEE.
Appeal from Marion County Common Pleas Court General Division Trial Court No. 23 CR 43
Judgment Reversed
Date of Decision: August 4, 2025
APPEARANCES:
Allison M. Kesler for Appellant
Paul L. Scarsella for Appellee Case No. 9-24-37
MILLER, J.
{¶1} The Appellant, State of Ohio, appeals from the July 26, 2024 judgment
issued by the Marion County Court of Common Pleas granting a Motion to Dismiss
with Prejudice, filed by Defendant-Appellee, Bobby Michael Stinson (“Stinson”).
Based on alleged Brady violations and the Double Jeopardy Clause, the trial court
sanctioned the State by dismissing the indictment against Stinson with prejudice and
assessing court costs against the prosecutor’s office. For the reasons that follow,
we find that the trial court committed reversible error in determining the State had
committed a Brady violation, deciding double-jeopardy protection applied, and
imposing the sanctions. We reverse the trial court’s July 26, 2024 judgment and
remand for further proceedings in accordance with this opinion.
I. FACTS AND PROCEDURAL HISTORY
A. Indictment and Trial
{¶2} On February 1, 2023, the Marion County Grand Jury indicted Stinson
on five charges:
1. Aggravated Robbery, pursuant to R.C. 2911.01(A)(1), a first-degree felony;
2. Aggravated Robbery, pursuant to R.C. 2911.01(A)(3), a first-degree felony;
3. Felonious Assault, pursuant to R.C. 2903.11(A)(1), a second-degree felony;
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4. Felonious Assault, pursuant to R.C. 2903.11(A)(2), a second-degree felony; and
5. Theft, pursuant to R.C. 2913.02(A)(1), a fifth-degree felony.
Notably, in support of the theft charge (Count 5), the indictment alleged the property
at issue was a cell phone “valued at one thousand dollars or more and less than seven
thousand five hundred dollars”—corresponding to the theft being a fifth-degree
felony.
{¶3} On February 10, 2023, defense counsel served the State with a demand
for discovery, requesting disclosure of all possible material or relevant evidence that
the prosecutor had acquired or will be acquiring to which Stinson was entitled under
Crim.R. 16(B). In response, the State made disclosures and delivered a variety of
evidence, including police statements and police officer body camera videos.
{¶4} On May 14, 2024, the case proceeded to trial. The first witness was
Brian Griffith (“Griffith”), the alleged victim. Griffith testified that Stinson had
communicated with him a couple of weeks prior to the alleged crimes about a
woman who was the mother of Stinson’s children. At the time, Griffith had been
sleeping with the woman. The nature of the communication was a threat from
Stinson to Griffith that, if Stinson saw Griffith, then Stinson would injure him.
{¶5} According to Griffith, on the night of the alleged crimes, Stinson
confronted him and said, “Stay away from my bitch” and “I told you stay away from
my bitch.” (May 14, 2024 Trial Tr. at 261-262). Stinson then swung a bat at him,
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striking and injuring him. Some of Griffith’s belongings fell onto the ground.
Stinson picked up Griffith’s cell phone and ran away. Griffith testified that the cell
phone was an iPhone 13, he never got it back, and he thought he paid $1,300 for it.
He specifically testified that he paid more than $1,000 but less than $7,500.
{¶6} On cross-examination, Griffith testified he had purchased the cell phone
shortly before the incident and it worked at the time Stinson took it from him. The
following exchange then took place:
Q: . . . And your testimony is that you paid 1,300 dollars for that phone that’s a year old at that point?
A: Yep. I think it was 1,200. I turned in the receipt.
Q: Okay. Where’d you buy it from?
A: T-Mobile.
(Id. at 310). Defense counsel then asked for a sidebar, during which he indicated
there was a possible discovery issue because he had not received the receipt
mentioned by Griffith. The prosecutor said he was unaware of any receipt. Griffith
then further testified that he had turned the receipt into the victim’s advocate of the
Marion County Prosecutor’s Office.
{¶7} At that point, defense counsel asked for another sidebar. During this
sidebar, defense counsel asserted there was a Crim.R. 16 issue because the receipt
would be evidence going directly to an essential element of the alleged theft and
asked that Count 5 be dismissed. The prosecutor indicated he was going to try to
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contact the victim’s advocate. Questioning of Griffith proceeded. Then, during a
recess, the prosecutor was able to obtain the receipt. The prosecutor explained that
Griffith had given it to the victim’s advocate and the victim’s advocate had
apparently mislabeled the document and it was put into the wrong category of
materials—resulting in the receipt not being put into the discovery materials to be
provided to the defense. The prosecutor admitted it was his responsibility to turn it
over to the defense, but said there was nothing willful about not doing so as he was
unaware of the receipt until Griffith mentioned it during cross-examination.
{¶8} The judge expressed frustration saying, “I am so tired of addressing
these issues where things are coming out during trial that never have been turned
over.” (May 14, 2024 Trial Tr. at 327). The court added that it did not believe the
prosecutor had intentionally failed to turn over the receipt to the defense, but that it
still had been the prosecutor’s obligation to turn it over. Defense counsel conceded
that he too did not believe the prosecutor purposely withheld the receipt. Defense
counsel also conceded the receipt was “not exculpatory,” although he believed it
was “very damning evidence that would indicate an essential element of one of the
indicted charges.” (Id. at 337-338). The judge said he “could very much see [the
victim’s advocate] get this piece of paper from the victim and think it’s restitution
related,” but agreed with defense counsel that it related to an element of the offense.
(Id. at 341). The prosecutor pointed out that the discovery materials previously
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provided to the defense contained a report indicating Griffith’s cell phone was
valued at $1,000. Thus, in addition to the indictment alleging the value, the judge
acknowledged defense counsel had some notice in discovery that the phone was
valued at $1,000 or more. The trial proceeded for the rest of the day, with testimony
from three other witnesses for the State, and was set to resume the next day with
additional testimony.
B. May 15, 2024 Proceedings
{¶9} The next morning before the trial resumed, Stinson’s counsel moved to
dismiss the indictment with prejudice or, if that was not granted, a mistrial. He
argued that the State (not the individual prosecutor handling the trial) had willfully
withheld the receipt from defense counsel prior to trial. He also argued that the
receipt was relevant to impeachment and that it affected Counts 1, 2, and 5 because
it related directly to “essential elements” of those charges. (May 15, 2024 Trial Tr.
at 10). The judge again noted he thought “it was evident from [the prosecutor’s]
reaction yesterday that he was unaware of the receipt being in the” State’s custody.
(Id. at 2).
{¶10} The trial court then allowed proffered testimony from Griffith
concerning the receipt, a copy of which the State had by then provided to defense
counsel. Griffith testified he sent the receipt to the victim’s advocate of the Marion
County Prosecutor’s Office about a month or two before the trial started. The
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receipt indicated a price for the phone of $1,099.00 (and a total amount, with tax, of
$1,179.74). Thus, it confirmed the State’s position—and Griffith’s testimony—that
the value of the stolen property was $1,000 or more. Griffith testified he actually
paid more than the $1,099.00 amount indicated on the receipt because he had
previously paid some money towards the phone. He also testified that he bought
the phone from AT&T (as indicated on the receipt) and had mistakenly testified the
previous day that he bought it at T-Mobile.
{¶11} After the proffered testimony, the prosecutor again explained he had
been unaware of the receipt and he “would have turned it over immediately” if he
had known of its existence. (Id. at 81). The trial court decided “this is a violation
of Criminal Rule 16” because the receipt had been in the State’s possession for a
month or two prior to the trial and it was “clearly a document that should have been
provided to the defense.” (Id. at 84). The trial court again said it did not find the
prosecutor (or the prosecutor’s office) acted willfully, but the receipt was clearly
relevant to Count 5 and affected the victim’s credibility. The trial court therefore
declared a mistrial. It reset the matter for briefing and argument regarding whether
the mistrial should be with or without prejudice, and it set a new trial date of August
6, 2024.
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C. Post-mistrial Proceedings
{¶12} On June 12, 2024, Stinson filed a motion to dismiss the indictment
with prejudice. In support, Stinson explained that—in addition to the State’s failure
to turn over the receipt—the State had produced additional discovery responses
since the mistrial was granted that included two additional hours of body camera
footage from the night of the alleged crimes. Stinson argued the State had violated
his Constitutional rights by withholding material and exculpatory evidence from
him. He also argued the prosecution’s actions caused the mistrial and the Double
Jeopardy Clauses of the Federal and Ohio Constitutions precluded a retrial.
{¶13} On July 25, 2024, the trial court held a hearing. The judge probed
Stinson’s reference in his motion to the additional production of two hours of body
camera footage. Defense counsel explained the footage was from two sheriff
deputies who had gone to Stinson’s residence on the night of the incident and that
Stinson’s vehicle could be seen at the residence in the footage. The prosecutor
explained that the two deputies had been called to the residence simply to secure the
perimeter, they were not involved in the search of the residence, the two videos
showed nothing other than the deputies standing on a perimeter, and he had no intent
to call the deputies as witnesses (thus implying he would not have played the videos
at trial). He further explained that he had discovered the videos himself after the
mistrial when he re-reviewed everything, saw that he did not have body camera
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footage from the two deputies, obtained it from the sheriff’s office, and immediately
produced it to defense counsel upon receipt.
{¶14} The judge, after noting that he recalled there had been testimony
during the trial about Stinson’s car being at his residence, specifically asked defense
counsel about the potential impeachment or evidentiary value of the two videos.
Defense counsel said one of the defense’s arguments was that Stinson’s car was at
his residence; he thought there was “potential evidentiary value”; and it affected
what his trial strategy would have been. (July 25, 2024 Tr. at 26). Defense counsel
also acknowledged that, during the trial, an officer had testified he went to Stinson’s
residence the night of the incident, he saw the car, and the car was cold when he
touched it. Defense counsel also surmised the video “obviously had some
[evidentiary] value or it wouldn’t have been turned over” by the State. (Id. at 27).
{¶15} On July 26, 2024, the trial court issued a judgment entry. It determined
that the State had violated its Brady obligations with respect to both the receipt and
the two body camera videos. Concerning the receipt, the trial court found that it
was “materially exculpatory.” (July 26, 2024 Judgment Entry at 15). Specifically,
it explained that the receipt was inconsistent with Griffith’s testimony and material
to impeachment of Griffith. According to the trial court, the receipt raised issues
concerning the value of the phone, the date of the purchase, the carrier, and the
credibility of the witness—especially as to his memory. The trial court also stated
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the receipt “would be useful to cross examine” Griffith and concluded it “has
significant exculpatory value.” (Id.).
{¶16} Regarding the body camera videos, the trial court found the two
additional videos constituted “Brady material as well.” (Id. at 8). It referenced
that—unlike the receipt—they were not located or disclosed until after the mistrial
but that the names of the two deputies had been turned over in discovery prior to
trial. The trial court found the videos were “footage from two deputies who
attempted to locate the Defendant” and “showed the Defendant’s vehicle, which
related to testimony that the State presented at trial.” (Id. at 16). It explained there
was testimony at the trial regarding the vehicle being cold to the touch and,
therefore, “[t]he videos of officers at the vehicle were material for the alibi defense.”
(Id. at 10). The trial court also decided they “were relevant to the preparation of the
Defendant’s alibi defense.” (Id. at 17). The trial court found them “to have
exculpatory value and therefore [are] also Brady material.” (Id.).
{¶17} The trial court noted that the prosecution had stated multiple times
leading up to the trial that discovery was complete, but it turned out discovery
actually was not complete. The trial court proceeded to explain that it had addressed
issues concerning delayed and undisclosed discovery by the State repeatedly in
numerous other, unrelated cases. It then found that double jeopardy applied because
“these are systemic prosecutorial failures” that “goad mistrials, and therefore
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warrant finding that double jeopardy applies.” (Id. at 26). The trial court dismissed
the case against Stinson with prejudice and assessed court costs against the Marion
County Prosecutor’s Office. This appeal followed.
II. ASSIGNMENT OF ERROR
{¶18} The State raises a single assignment of error for our review:
Assignment of Error
The trial court unreasonably, arbitrarily, and unconscionably found the State of Ohio violated Crim.R. 16, dismissed the case with prejudice, and imposed court costs upon the Marion County Prosecutor’s Office.
III. DISCUSSION
{¶19} In the assignment of error, the State argues that the trial court’s
reliance on Brady v. Maryland, 373 U.S. 83 (1963) and its progeny was error
because it was not applicable. The State also asserts that neither the receipt nor the
body camera videos were exculpatory and, therefore, were not Brady material.
Finally, it argues “the trial court unreasonably, unconscionably, and arbitrarily
imposed a dismissal with prejudice and costs upon the Marion County Prosecutor’s
Office.” (Appellant’s Brief at 10).1
1 The State is not appealing the trial court’s decision to continue the trial and declare a mistrial, which the State references as sanctions the trial court had already imposed. This is unsurprising given that we could not undo a continuation or restart the first trial.
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A. Standards of Review
{¶20} “Generally, we review a trial court’s decision on a motion to dismiss
an indictment for an abuse of discretion.” State v. Hudson, 2022-Ohio-1435, ¶ 19.
A trial court abuses its discretion when its conduct is unreasonable, arbitrary, or
unconscionable. State v. Hill, 2022-Ohio-4544, ¶ 9. However, when the issue
presented raises a question of law, we review the trial court’s decision de novo.
Hudson at ¶ 19 (reviewing, de novo, the trial court’s denial of a motion to dismiss
an indictment based on lack of subject-matter jurisdiction); see also Johnson v.
Abdullah, 2021-Ohio-3304, ¶ 38 (courts lack discretion to make an error of law or
to misapply the law).
B. There Was No Brady Violation
1. Principles from Brady and its progeny
{¶21} In Brady, the U.S. Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. For there to be
a Brady violation, the defendant must demonstrate that (1) the evidence at issue is
favorable to the defendant, (2) the State suppressed the evidence, and (3) the
defendant was prejudiced as a result. State v. Brown, 2024-Ohio-749, ¶ 30; see also
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Strickler v. Greene, 527 U.S. 263, 281-282 (1999) (a Brady violation consists of
three components).
{¶22} “Favorable evidence under Brady encompasses both exculpatory and
impeachment evidence.” State v. Davis, 2008-Ohio-2, ¶ 338, citing United States
v. Bagley, 473 U.S. 667, 674-676 (1985). Next, relevant to the question of whether
the State suppressed the evidence, “the prosecution has ‘a duty to learn of any
favorable evidence known to the others acting on the government’s behalf in the
case.’” State v. McNeal, 2022-Ohio-2703, ¶ 22, quoting Kyles v. Whitley, 514 U.S.
419, 437 (1995). Finally, relevant to the question of prejudice, “[e]vidence is
material within the meaning of Brady only if there exists a ‘reasonable probability’
that the result of the trial would have been different had the evidence been disclosed
to the defense.” Davis at ¶ 338, quoting Kyles at 433-434, quoting Bagley at 682;
see also Brown, 2024-Ohio-749, at ¶ 30. “‘A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.’” Davis at ¶ 338,
quoting State v. Johnston, 39 Ohio St.3d 48 (1988), paragraph five of the syllabus.
“As a rule, undisclosed evidence is not material simply because it may have helped
the defendant to prepare for trial.” State v. Brown, 2007-Ohio-4837, ¶ 49; see also
State v. Owens, 2017-Ohio-2590, ¶ 29 (3d Dist.) (“this court has consistently
determined that materiality does not refer to the defendant’s ability to prepare for
trial”).
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2. Crimes charged and impact of the stolen property’s value
{¶23} Stinson was charged in Count 5 with theft. In relevant part, the statute
provides that no person, with purpose to deprive the owner of property, shall
knowingly obtain or exert control over the property without the consent of the owner
or person authorized to give consent. R.C. 2913.02(A)(1). The State alleged that
the stolen property was valued at $1,000 or more and less than $7,500. Accordingly,
the charge was for a fifth-degree felony. R.C. 2913.02(B)(2). If the value of the
stolen property was less than $1,000, then violating the statute would be a first-
degree misdemeanor. Id. Therefore, in this case, the value of the cell phone
allegedly stolen from Griffith would affect the available punishment if Stinson were
to be convicted of the offense, not whether he had committed theft. See State v.
Smith, 2009-Ohio-787, ¶ 7 (“[w]hile the special findings identified in R.C.
2913.02(B)(2) affect the punishment available upon conviction for the offense, they
are not part of the definition of the crime of theft set forth in R.C. 2913.02(A)”).
{¶24} Stinson was charged in Counts 1 and 2 with committing aggravated
robbery. That statute provides, in relevant part,
(A) No person, in attempting or committing a theft offense, as defined in [R.C. 2913.01], or in fleeing immediately after the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender’s person or under the offender’s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it;
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(3) Inflict, or attempt to inflict, serious physical harm on another.
...
(C) Whoever violates this section is guilty of aggravated robbery, a felony of the first degree.
R.C. 2911.01(A)(1), (A)(3), (C). Therefore, the value of the cell phone would not
impact Counts 1 or 2 because a theft offense as defined in R.C. 2913.01 includes
any violation of R.C. 2913.02—regardless of the stolen property’s value. See R.C.
2913.01(K) (defining “theft offense” to include a violation of R.C. 2913.02). The
value of the cell phone likewise would not impact Counts 3 and 4, which charged
Stinson with committing felonious assault and do not pertain to a theft offense.
3. Application of legal principles
{¶25} We first address the trial court’s decision that the State committed a
Brady violation by not disclosing the receipt until during the trial. Significantly, the
Supreme Court of Ohio recently said it has not decided “whether a Brady violation
is ever properly grounded in evidence that is disclosed during trial.” Brown, 2024-
Ohio-749, at ¶ 31-32. This statement in Brown appears to overlook some earlier
decisions by the Court. See State v. Hanna, 2002-Ohio-2221, ¶ 82 (“the state did
not violate Brady v. Maryland by withholding exculpatory evidence” because the
evidence “was presented during the trial (and not after the trial as in Brady), and no
violation exists” [emphasis in original]); State v. Wickline, 50 Ohio St.3d 114, 116
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(1990) (“[a]s the alleged exculpatory records were presented during the trial, there
exists no Brady violation requiring a new trial” [emphasis in original]).
{¶26} In Brown, the Court pointed out an earlier decision where three
justices in the lead opinion explained that, ‘“[s]trictly speaking, Brady is not
violated when disclosure occurs during trial, even when disclosure surprises the
defendant with previously undisclosed evidence.”’ Brown, 2024-Ohio-749, at ¶ 31,
quoting State v. Iacona, 93 Ohio St.3d 83, 100 (2001). However, the lead opinion
in Iacona had “suggested that ‘the philosophical underpinnings of Brady support
the conclusion that even disclosure of potential exculpatory evidence during trial
may constitute a due process violation if the late timing of the disclosure
significantly impairs the fairness of the trial.’” Id., quoting Iacona at 100. “The
lead opinion then went on to analyze the defendant’s contention that the trial court
erred by failing to grant her motion for a mistrial ‘in this context.’” Id., quoting
Iacona at 100. We note that the Court in Brown clarified it did not need to decide
whether to adopt this test from the lead opinion in Iacona because the defendant had
forfeited any Brady claim. Id. at ¶ 31-32.
{¶27} The trial court here never addressed the applicability of Brady v.
Maryland. Instead, the judgment entry shows it merely assumed a Brady violation
may be properly grounded in evidence disclosed during trial and applied the three-
part test derived from Brady as set forth above. We could simply rely on the
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rationale in Hanna and Wickline to find the trial court erred as a matter of law
because there could be no Brady violation given the disclosure of the receipt
occurred during trial. However, we also review the three Brady requirements set
forth in Brown and conclude that the late timing of the receipt’s disclosure did not
“significantly impair[] the fairness of the trial” and, therefore, the trial court erred
in finding a Brady violation. Iacona at 100 (lead opinion).
{¶28} The receipt was not exculpatory evidence. On the contrary, it actually
proved the State’s claim that the value of the phone was $1,000 or more. Further,
if the prosecutor trying the case knew of the receipt’s existence, he would have used
it during trial because—as he acknowledged—“it was the best evidence that the
State could have had to prove” the value of the phone. (July 25, 2024 Tr. at 17).
Having Griffith identify the receipt would have solidified the cost of the cell phone,
as well as when and where it was purchased, thus eliminating these matters from
potential impeachment. Even if the receipt could have been used as impeachment
evidence during Griffith’s testimony, any impeachment would have concerned very
minor matters. For example, although Griffith testified he bought the cell phone
from T-Mobile, the receipt indicated he bought it from AT&T and, although Griffith
testified he purchased the phone “probably” in the beginning of October 2022, the
receipt indicated a date of August 22, 2022. (May 14, 2024 Trial Tr. at 307-310).
In contrast, both Griffith’s testimony and the receipt aligned on the significant issue
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raised by the receipt: the value of the cell phone was $1,000 or more and less than
$7,500.2 See Davis, 2008-Ohio-2, at ¶ 339 (although the undisclosed information
might have impeached the witness’s credibility, there was no Brady violation
because “impeachment evidence would not have been significant in the outcome of
the case” given DNA evidence established guilt).
{¶29} Moreover, although obviously not ideal, the prosecutor located and
produced the receipt to the defense while the trial was still pending and the defense
could have sought to bar its use by the prosecution or could have used it during the
trial to cross-examine Griffith about the details of the cell phone purchase, much
like it did during his proffered testimony. Ultimately, the tardy disclosure of the
receipt did not “significantly impair[] the fairness of the trial.” Iacona, 93 Ohio
St.3d at 100; see also State v. Payne, 2010-Ohio-1018, ¶ 32 (10th Dist.) (fairness of
trial not significantly impaired despite “the unarguably late timing of the disclosure”
of evidence after a witness—with whom the evidence could have been used—had
already testified).
{¶30} Next, we address the trial court’s decision that the State also
committed a Brady violation by not disclosing the two body camera videos until
after the mistrial. Importantly, “[e]vidence which is merely cumulative is
2 Defense counsel even acknowledged that “[w]here and when [Griffith] bought [the phone] is not an essential element” and that the essential information from the receipt was the value of the phone. (May 15, 2024 Trial Tr. at 16).
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insufficient to show a Brady violation.” State v. Pepper, 2003-Ohio-3053, ¶ 33 (2d
Dist.); see also State v. Eubank, 38 Ohio App.3d 141, 146 (6th Dist. 1987)
(prosecution’s failure to disclose a tape did not result in a Brady violation because
“the evidence included in the tape is merely cumulative to that presented at trial”;
the parts of the tape that might have aided defendant were already presented at trial
through other sources); State v. Smith, 2018-Ohio-4691, ¶ 40 (2d Dist.) (where the
information on a recording was cumulative to information already known to the
defense, the State’s failure to disclose the recording was not a Brady violation).
{¶31} During the trial, an officer with the Marion Police Department testified
that he went to Stinson’s residence on the night of the alleged crimes, he saw
Stinson’s car there, he inspected the vehicle from the outside and did not see
anything of note, and he touched the hood of the vehicle—which was cold,
indicating it had not been driven recently. (May 14, 2024 Trial Tr. at 363-365, 370).
In its judgment entry, the trial court explained that the body camera footage at issue
was from officers also at Stinson’s residence that night and “showed the
Defendant’s vehicle”—and therefore found it to be evidence “material for the alibi
defense” and relevant to preparation of that defense. (July 26, 2024 Judgment Entry
at 10, 17). However, the body camera footage was merely cumulative of other
evidence, and the failure to timely disclose it was not a Brady violation. Even if the
body camera footage would have supported Stinson’s alibi defense because it
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showed his car was present at his residence on the night of the alleged crimes, the
other officer’s testimony already established that point.
{¶32} This cumulative-evidence analysis corresponds with a failure to
satisfy the materiality requirement for a Brady violation. Appellate courts apply a
de novo standard of review to Brady-violation materiality questions. See Iacona,
93 Ohio St.3d at 92-93; United States v. Phillip¸ 948 F.2d 241, 250 (6th Cir. 1991)
(“[b]ecause materiality under Brady presents a mixed question of law and fact, . . .
our standard of review is de novo”). Even if such cumulative evidence had been
disclosed to the defense, it is not probable that confidence in the trial’s outcome
would be undermined. See State v. Sowell, 73 Ohio App.3d 672, 678 (1st Dist.
1991) (undisclosed cumulative testimony was not material because there was no
reasonable probability that the duplicative testimony would have produced a
different outcome at trial); see also Brown, 2007-Ohio-4837, at ¶ 49 (undisclosed
evidence is not material simply because it may have helped the defendant prepare
for trial).
{¶33} We conclude that the trial court erred in deciding that the State
committed a Brady violation. See State v. Brown, 2017-Ohio-7701, ¶ 38-42 (7th
Dist.) (where the State did not disclose a video to defense counsel until during the
trial and the trial court granted the defendant’s request for a mistrial, the appellate
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court found no Brady violation and the trial court did not err in denying defendant’s
motion to dismiss).
C. The Imposed Sanctions Must Be Vacated
1. The sanctions stem from an erroneous decision
{¶34} Given that the trial court’s July 26, 2024 judgment was based on
erroneous findings of Brady violations, the sanctions imposed in that judgment
cannot stand. See State v. Pate, 1996 WL 255870, *2 (3d Dist. May 14, 1996); State
v. Umpenhour, 2000 WL 281746, *1, 4-6 (6th Dist. Mar. 17, 2000) (because there
was no discovery violation by the State, the trial court erred in imposing a sanction
for the alleged violation).
2. Double jeopardy does not apply
{¶35} We next address whether the trial court’s decision to dismiss the case
on the basis of double jeopardy must be reversed even if one views the underlying
discovery violation as a Rule 16 violation (e.g., as the trial court found on May 15,
2024), instead of the trial court’s erroneous finding of Brady violations. A de novo
standard of review is used in reviewing a decision to grant or deny a motion to
dismiss a criminal indictment on double-jeopardy grounds. See State v. McFarland,
2012-Ohio-1991, ¶ 9 (6th Dist.); State v. Wright, 2018-Ohio-1281, ¶ 1, 9 (4th Dist.).
a. Legal principles
{¶36} The general rule for mistrials is that “the Double Jeopardy Clause is
no bar to retrial.” Oregon v. Kennedy, 456 U.S. 667, 673 (1982). In Kennedy, the -21- Case No. 9-24-37
U.S. Supreme Court held “there is a narrow exception” to that rule. Id. When a
defendant is granted a mistrial, the circumstances in which he “may invoke the bar
of double jeopardy in a second effort to try him are limited to those cases in which
the conduct giving rise to the successful motion for a mistrial was intended to
provoke the defendant into moving for a mistrial.” Id. at 679. The Court further
explained:
Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. . . . Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.
Id. at 675-676.
{¶37} The Supreme Court of Ohio has adopted the same principles.3 State
v. Loza, 71 Ohio St.3d 61, 70 (1994). “When a trial court grants a criminal
defendant’s request for a mistrial, the Double Jeopardy Clause does not bar a
retrial,” although “[a] narrow exception lies where the request for a mistrial is
precipitated by prosecutorial misconduct that was intentionally calculated to cause
or invite a mistrial.” Id. Ohio courts have applied the general rule and exception
3 The protections afforded by the Double Jeopardy Clauses of the Ohio Constitution and the U.S. Constitution are coextensive. State v. Brewer, 2009-Ohio-593, ¶ 14. Additionally, the Fourteenth Amendment to the U.S. Constitution made the Double Jeopardy Clause of the Fifth Amendment applicable to the states. State v. Loza, 71 Ohio St.3d 61, 70 (1994).
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from Kennedy to cases involving discovery or Brady violations, followed by a
mistrial. E.g., id. at 64, 70-71 (where the trial court granted a mistrial following the
State’s failure to disclose exculpatory evidence during discovery, affirming denial
of motion to bar retrial on double jeopardy grounds); Brown, 2017-Ohio-7701, at ¶
2-9, 25, 35 (7th Dist.).
b. Application of legal principles
{¶38} Although the trial court noted it greatly preferred that the case be
adjudicated on the merits, it decided that double jeopardy applied and, therefore, it
was “unfortunately necessary” to dismiss the case with prejudice. (July 26, 2024
Judgment Entry at 27). This indicates the trial court would not have dismissed the
case with prejudice absent its determination that double jeopardy applied. The trial
court based that decision on what it found to be a “pattern of non-disclosure in this
case and others.” (Id.). After listing other cases in which it identified discovery
issues by the Marion County Prosecutor’s Office, the trial court found that jeopardy
attached here and that “systemic prosecutorial failures . . . goad mistrials, and
therefore warrant finding that double jeopardy applies.” (Id. at 26).
{¶39} Although we understand the trial court’s frustration and do not
disregard or excuse repeated prosecutorial discovery errors, we disagree with the
trial court that the applicable legal test was met. As an initial matter, the
prosecutor’s tardy disclosure of the body camera videos could not have been an
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action intentionally calculated to cause or invite a mistrial—it happened after the
mistrial had already been declared. More importantly, “[a]fter reviewing the record,
we must conclude that the conduct of the state was not intended to provoke [Stinson]
into moving for a mistrial.” Loza, 71 Ohio St.3d at 71. It does not follow from the
record that “the prosecutorial conduct in question [was] intended to ‘goad’ the
defendant into moving for a mistrial.” Id. at 70. We highlight that the record shows
the court and defense counsel both believed the prosecutor had no idea the receipt
even existed until Griffith mentioned it during cross-examination. Compare State
v. Owens, 127 Ohio App.3d 65, 67, 69 (6th Dist. 1998) (the State goaded defendant
into seeking a mistrial where the prosecutor vigorously fought for months and won
the right to keep secret from the defendant an informant’s identity—thus depriving
defendant from investigating the informant—but, at trial, affirmatively and
deliberately told the jury the name of the informant and that they would see a picture
of the informant). As one court has explained, the exception from Kennedy
“prevents prosecutors from sinking a case they knew was doomed to end in an
acquittal in the hope of having better luck before a second jury.” United States v.
Lewis, 368 F.3d 1102, 1108 (9th Cir. 2004). Here, there is no indication that the
prosecutor believed his case was doomed to end in acquittal and hoped to have better
luck in another trial.
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{¶40} Consequently, Stinson’s retrial was not barred on double-jeopardy
grounds, and the trial court erred in finding otherwise and dismissing the case with
prejudice. Brown, 2017-Ohio-7701, at ¶ 2, 23-35 (7th Dist.) (despite multiple
failures to disclose by the State, resulting in multiple mistrials over the course of the
case, the Double Jeopardy Clause did not bar retrial); State v. Roughton, 132 Ohio
App.3d 268, 278 (6th Dist. 1999) (“[w]hile we find the repeated failure to make full,
timely disclosure of evidence deplorable, we cannot conclude that the purpose
behind the behavior was a desire to force a mistrial”).
{¶41} We therefore do not need to address the State’s argument that it did
not violate Crim.R. 16. Although we find merit in the State’s argument that the trial
court could have imposed a less severe sanction consistent with the purpose of the
rules of discovery, we likewise need not address that issue. State v. Darmond, 2013-
Ohio-966, syllabus (when deciding whether to impose a sanction for a discovery
violation, a trial court must impose the least severe sanction that is consistent with
the purpose of the rules of discovery), ¶ 30 (dismissal with prejudice in a criminal
case “is extremely severe because it forecloses the possibility of further prosecution;
such a sanction should not be imposed without a trial court’s specifically weighing
and rejecting the feasibility of less severe sanctions”). The trial court finding a
double jeopardy violation to dismiss the indictment with prejudice allowed it to
avoid the necessity of conducting an analysis of the least severe sanction.
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IV. CONCLUSION
{¶42} For the foregoing reasons, Appellant’s assignment of error is
sustained. Having found error prejudicial to the appellant in the particulars assigned
and argued, we reverse the judgment of the Marion County Court of Common Pleas
and remand for further proceedings consistent with this opinion.
WILLAMOWSKI, J., concurs.
WALDICK, P.J., concurring separately.
I fully concur in the legal analysis and holding by the majority in this matter.
However, I would find that the actions of the trial court are not only unreasonable,
arbitrary and unconscionable, but grievously so. Instead of deciding the issues
presented in this case, the trial court chose to justify its ruling by chastising what it
considered a “pattern of non-disclosure” by the Marion County Prosecutor’s Office,
citing prior perceived misconduct in cases that were completely unrelated to the
instant case. A criminal trial is not the appropriate vehicle for the trial court to “send
a message.” Both the Defendant and the State of Ohio are entitled to a fair trial, and
the victim is entitled to justice. In this matter the court abused its discretion.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignment of error is
sustained and it is the judgment and order of this Court that the judgment of the trial
court is reversed with costs assessed to Appellee for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for further proceedings
and for execution of the judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
Mark C. Miller, Judge
Juergen A. Waldick, Judge Concurs Separately
John R. Willamowski, Judge
DATED: /jlm
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