State v. Holt , 2019 Ohio 4685 ( 2019 )

[Cite as State v. Holt, 2019-Ohio-4685.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 2019 CA 0025
SAGI S. HOLT
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of
Common Pleas, Case No. 2018-CR-688
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 12, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP JAMES L. BLUNT, II
Prosecuting Attorney 3954 Industrial Parkway Drive
Richland County, Ohio Shelby, Ohio 44875
JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2019 CA 0025 2
Hoffman, J.
{¶1} Appellant Sagi S. Holt appeals the judgment entered by the Richland
County Common Pleas Court convicting him of having weapons under a disability (R.C.
2923.13(A)(3)), tampering with evidence (R.C. 2921.12(A)(1)), four counts of aggravated
possession of drugs (R.C. 2925.11(A),(C)(1)(a)), and one count of possession of drugs
(R.C. 2925.11(A),(C)(2)(a)), and sentencing him to a term of incarceration of 90 months.
Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 1, 2018, Officer Joseph Gladden of the Mansfield Police
Department received a message from dispatch a person named Charity Griffith, who had
an active warrant for her arrest, had been dropped off at a residence next to 404 Newman
Street in Mansfield, Ohio. Officer Gladden first went to 406 Newman Street, where he
spoke to Jonathan Risser. Risser told the officer several hours earlier, Griffith had
stopped at his house to call Appellant. He directed Gladden to 398 Newman Street.
{¶3} As Officer Gladden went to the front door of 398 Newman Street, the blinds
were open, and he saw Griffith inside. Upon seeing the officer, Griffith ran through the
house. Through the living room window, the officer could see a mirrored dish on a coffee
table, with a syringe and baggies sitting on it. He knocked on the door and announced
his presence.
{¶4} No one answered the door. Officer Gladden moved to another window and
looked inside the house. He saw Appellant with his back up against the wall next to the
front door, as if he was trying to hide from the officer. The officer spoke to Appellant
through the window, telling Appellant he was there for Griffith and knew she was in the
house. Appellant agreed to send Griffith out.
Richland County, Case No. 2019 CA 0025 3
{¶5} Officer Gladden went back to the front door, but noticed the blinds were now
closed. Officer Gladden called inside to ask Appellant for his name. Appellant asked why
the officer wanted his name. The officer responded he noticed drug paraphernalia on the
table when he looked in the window. Appellant said there was nothing there, and opened
the blinds slightly to show the officer the items were gone.
{¶6} After about five minutes, Appellant said he would send Griffith out once
Officer Gladden left the front porch. Officer Gladden refused to leave the porch. Appellant
opened the door and quickly shoved Griffith out, trying to quickly shut the door. The
officer blocked the door with his foot, and a brief struggle ensued before Appellant took
off running through the house. Ultimately, Officer Gladden deployed his Taser to stop
Appellant from running away. Appellant fell in the entryway of a bathroom. When
Appellant was able to move, he immediately reached to flush the toilet. Officer Gladden
saw a baggie of white powder swirling in the toilet. The officer tried unsuccessfully to
retrieve the baggie.
{¶7} When police had both Griffith and Appellant in custody, they searched the
house. Police found two loaded firearms, and a bag containing pills. In the kitchen
officers found a syringe, bags of marijuana, and a digital scale. Among the drugs seized
from the house were 2.42 grams of fentanyl, 6.33 grams of morphine, 2.04 grams of
buprenorphine, .79 grams of oxycodone, and one tablet of methamphetamine.
{¶8} On August 23, 2018, Appellant was indicted by the Richland County Grand
Jury with having weapons under disability, tampering with evidence, four counts of
aggravated possession of drugs, and one count of possession of drugs.
Richland County, Case No. 2019 CA 0025 4
{¶9} Trial was set for March 4, 2019. On February 27, 2019, the State provided
Appellant with the names of two witnesses it intended to call at trial, including Jonathan
Risser. Appellant moved to exclude the testimony of these two witnesses.
{¶10} On the first morning of trial, the State represented only one of the two
witnesses provided in supplemental discovery, Jonathan Risser, would be testifying at
trial. The State suggested since the witness was subpoenaed to appear in the afternoon,
counsel could talk with the witness after jury selection. The court stated at the final pretrial
in the case, counsel for Appellant had questions concerning whether 398 Newman was
Appellant’s residence. Prosecutor Pigg then stated he would look into this, and get back
to defense counsel. Thus, Appellant was placed on notice additional evidence may be
forthcoming on the issue of his residence. The court found because the names were
given almost a week before trial, and counsel would have an opportunity to interview the
witness prior to the witness testifying, the witnesses would be permitted to testify.
Appellant did not request a continuance.
{¶11} The case proceeded to jury trial. Risser testified to the best of his
knowledge, Appellant lived in the home at 398 Newman.
{¶12} Appellant was convicted as charged in the indictment and sentenced to 90
months incarceration. It is from the March 8, 2019 judgment of conviction and sentence
Appellant prosecutes this appeal, assigning as error:
WHETHER THE TRIAL COURT ERRED IN PERMITTING ONE (1)
WITNESS TO TESTIFY WHERE THE WITNESS WAS NOT DISCLOSED
UNTIL FOUR TO FIVE DAYS PRIOR TO TRIAL.
Richland County, Case No. 2019 CA 0025 5
{¶13} Disclosure of witnesses a party intends to call at trial is governed by Crim.
R. 16, which provides in pertinent part:
(A) Purpose, Scope and Reciprocity. This rule is to provide all
parties in a criminal case with the information necessary for a full and fair
adjudication of the facts, to protect the integrity of the justice system and
the rights of defendants, and to protect the well-being of witnesses, victims,
and society at large. All duties and remedies are subject to a standard of
due diligence, apply to the defense and the prosecution equally, and are
intended to be reciprocal. Once discovery is initiated by demand of the
defendant, all parties have a continuing duty to supplement their
disclosures.
***
(I) Witness List. Each party shall provide to opposing counsel a
written witness list, including names and addresses of any witness it intends
to call in its case-in-chief, or reasonably anticipates calling in rebuttal or
surrebuttal. The content of the witness list may not be commented upon or
disclosed to the jury by opposing counsel, but during argument, the
presence or absence of the witness may be commented upon.
***
(L) Regulation of Discovery.
(1) The trial court may make orders regulating discovery not
inconsistent with this rule. If at any time during the course of the
Richland County, Case No. 2019 CA 0025 6
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.
{¶14} The trial court has discretion in determining a sanction for a discovery
violation. State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶33,
citing State v. Parson, 6 Ohio St. 3d 442, 445, 453 N.E.2d 689 (1983). A trial court abuses
its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.
State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶15} Three factors should govern a trial court's exercise of discretion in imposing
a sanction for a discovery violation committed by the prosecution: (1) whether the failure
to disclose was a willful violation of Crim. R. 16, (2) whether foreknowledge of the
undisclosed material would have benefited the accused in the preparation of a defense,
and (3) whether the accused was prejudiced. Parson, supra, at syllabus.
{¶16} In the instant case, the record does not suggest the failure to disclose
Jonathan Risser as a witness was willful. Based on the information placed on the record
by the trial court, the issue of whether 398 Newman was Appellant’s residence came up
at the final pretrial hearing in the case, when counsel represented Appellant claimed he
did not live there. The prosecutor stated he would look into this and get back with
Appellant. It appears from the record until this point in the proceedings, the State was
Richland County, Case No. 2019 CA 0025 7
unaware Appellant intended to claim he did not live in the residence where the drugs were
found, and failure to disclose earlier Risser as a witness concerning where Appellant
resided was not willful.
{¶17} As to whether foreknowledge of the undisclosed witness would have
benefited Appellant in the preparation of a defense, the witness was not a direct fact
witness as to the crimes, but merely was called to testify as to where Appellant lived.
Further, the trial court ensured counsel would have an opportunity to interview the witness
prior to his testimony at trial. When counsel cross-examined the witness at trial, counsel
noted he had spoken to Risser the day prior to his testimony. Risser did not testify as to
any of the details surrounding the charges, and his testimony was limited to an
observation Appellant appeared to be living in the home on August 1, 2018, and he first
began to see Appellant at the home in 2013, or 2014. We find Appellant had adequate
notice of the State’s intention to call Risser to prepare a defense, particularly given the
limited nature of Risser’s testimony.
{¶18} We also find Appellant was not prejudiced by the late disclosure of the
witness. As discussed earlier, Appellant had an opportunity to interview the witness the
day before he testified. Appellant did not request a continuance to further prepare for
trial. The witness’s testimony was on the limited issue of whether Appellant resided at
398 Newman. Further, Risser’s testimony was cumulative of the testimony of Charity
Griffith. Griffith identified Appellant’s house from a board diagramming the neighborhood.
She testified she saw Appellant five or more times from February, 2018, through August
1, 2018, mostly at the house. She testified she cleaned the house for Appellant in
exchange for drugs, or for money.
Richland County, Case No. 2019 CA 0025 8
{¶19} We find the trial court did not abuse its discretion in allowing Jonathan
Risser to testify. The assignment of error is overruled.
{¶20} The judgment of the Richland County Common Pleas Court is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, John, J. concur