State v. Scheidel , 165 Ohio App. 3d 131 ( 2006 )

{¶ 39} While I agree with the majority's conclusion that Deputy Lazanis's police report should have been disclosed, I differ with its position that disclosure of Lazanis's report would have changed the result of the trial. I believe there was no Brady violation and accordingly dissent.

{¶ 40} The report in question was taken on February 3, 2002, at 2:50 p.m. In the report, Deputy Lazanis notes that M.M. had disclosed that appellant had assaulted her twice. However, he further indicates M.M. was very quiet during the interview. Lazanis reported that M.M. was afraid of appellant and wished he was "still in jail." Lazanis further observed:

{¶ 41} "From talking with [M.M.], it doesn't sound like penatration [sic] was made, but again she was very afraid and seemed to be bothered by me being male."

{¶ 42} Less than two hours after Lazanis wrote the report, M.M. was taken to the emergency room at Geneva Memorial Hospital. During her visit, the attending emergency room nurse indicated in her report that appellant had instructed M.M. to undress. "[Appellant] then undressed and laid on top of her. [M.M.] felt him put something inside of her." This evidence was elicited during cross-examination by defense counsel in an attempt to impeach Gorsuch, the pediatric nurse practitioner who had performed the sexual-abuse examination on M.M.

{¶ 43} On March 5, 2002, M.M. was examined by Gorsuch. Subsequent to her examination, Gorsuch noted certain vaginal scarring, which she concluded, to a reasonable degree of medical certainty, was consistent with sexual abuse.

{¶ 44} Moreover, James Knight testified that he was visiting appellant in October or November 2001. The men were watching movies when appellant ordered all the children, three boys and M.M., to go to their rooms. Knight testified that appellant eventually left the room to "check on the kids." According to Knight, when the movie ended, appellant had not returned. Knight went to find appellant to make sure everything was okay. Knight knocked on M.M.'s room door, walked in, and observed "[M.M.] laying on the bed sideways, you know, cross ways across the bed with her clothes off and her hands over her face crying. I found [appellant] standing in front of her with his pants down to his ankles." According to Knight, appellant "slammed the door and told [him] to get the `F' out of there."

{¶ 45} While not dispositive proof of appellant's guilt on the charges on which he was ultimately convicted, Knight's testimony provides strong corroborative evidence that he committed the crimes for which he was charged.

{¶ 46} In my view, the state should have disclosed Lazanis's report, as it was evidence favorable to the accused and indicative of a prior inconsistent statement of the victim. SeeState ex rel. Rasul-Bey v. Onunwor, 94 Ohio St.3d 119, 121,2002-Ohio-67, 760 N.E.2d 421 (noting that records such as routine offense and incident reports are always subject to disclosure upon request by a criminal defendant); see, also, State ex rel.Carpenter v. Tubbs Jones (1995), 72 Ohio St.3d 579, 580,651 N.E.2d 993.

{¶ 47} However, Lazanis's report indicates that M.M. was quiet and had exhibited visible discomfort while speaking with him about the incidents due to (1) her fear of appellant and (2) Lazanis's gender. A mere one hour and 25 minutes after Lazanis had written his report, M.M. told an emergency room nurse that appellant, while lying naked on top of her, "put something inside of her." This evidence, in conjunction with Gorsuch's and Knight's testimony, indicates that the evidence as a whole militated heavily in favor of the conviction irrespective of Lazanis's report.

{¶ 48} The majority aptly notes that a Brady violation occurs when evidence favorable to the accused is suppressed by the state and there is a reasonable probability that had the evidence been disclosed, the result of the proceeding would have been different. Brady v. Maryland (1963), 373 U.S. 83, 87,83 S.Ct. 1194, 10 L.Ed.2d 215. For the foregoing reasons, I do not believe that the suppressed report, had it been given to the defense, would have changed the outcome of the trial under review.