State v. McCoy, Unpublished Decision (4-9-2003) ( 2003 )

CARR, J. CONCURS IN JUDGMENT ONLY AND WRITES SEPARATELY:

{¶ 17} I concur with the majority that the trial court did not abuse its discretion in denying appellant's motion for a new trial. However, I would decide the issue on a different basis.

{¶ 18} In order to prove prosecutorial misconduct for failure to provide information under Crim.R. 16, a defendant must demonstrate 1.) a willful violation by the State; 2.) foreknowledge of the information would have benefited his defense; and 3.) prejudice as a result. Statev. Parson (1983), 6 Ohio St.3d 442, 442. Defendant has not demonstrated the first prong here. There is no evidence that the State's failure to provide the criminal record of T.M.'s mother was intentional let alone willful. The evidence demonstrated and the trial court found that the State made a mistake. I would affirm on this basis.