STATE OF OHIO, PLAINTIFF-APPELLEE, v. MYNDI A. OPP, DEFENDANT-APPELLANT.
CASE NO. 13-13-33
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
March 24, 2014
2014-Ohio-1138
Appeal from Seneca County Common Pleas Court Trial Court No. 12-CR-0261 Judgment Affirmed
James W. Fruth for Appellant
Angela M. Boes for Appellee
{1} Defendant-appellant Myndi A. Opp brings this appeal from the judgment of the Court of Common Pleas in Seneca County, Ohio, which entered her conviction after a jury found her guilty of Illegal Conveyance of Drugs of Abuse onto the Grounds of a Specified Gоvernmental Facility, in violation of
{2} The charge against Opp arose out of an event that occurred on or about March 9, 2012, and involved “a dangerous drug” known as Ultram. (R. at 1, Indictment, Dec. 5, 2012.) Opp‘s jury trial took place on May 29, 2013. During the trial, the State elicited the testimony of a pharmacist, Kari Wedge, who was qualified as an expert witness regarding the interpretation and dispensing of prescription medications. (Tr. of Proceеdings, May 29, 2013, at 161-162.) Although Opp did not have any objections to Ms. Wedge‘s qualifications as an expert, she objected to her opinion testimony under
{3} The State had not provided Opp with a report, although it had provided Opp with the notice of its intention to call Ms. Wedge as a witness and with Ms. Wedge‘s curriculum vitae1 in its “Continuance to Discovery” filed bеfore trial. (R. at 17, 20.) In response to Opp‘s objection at trial, the State explained that Ms. Wedge had not prepared a report because no chemical analysis of the substance involved in the case was performed. (Tr. at 165-166.) The State also argued that Opp would not be prejudiced or surprised by Ms. Wedge‘s testimony because she was on notice of the State‘s intention to call her and Opp‘s counsel had a chance to talk to the witness prior to trial. (Id. at 165-168.) The State offered that if necessary, it would limit its questioning of Ms. Wedge to the issue of whether Ultram was a prescription-only substance, without asking Ms. Wedge to identify thе drug involved in the case. (Id. at 165, 169-170.) The trial court allowed the witness to testify within these limitations. (Id. at 170-171.)
{4} Ms. Wedge testified that as a pharmacist, she was familiar with the substance called Ultram, which was an opioid-type pain medication. (Id. at 182.) She testified that Ultram is only available upon prescription. (Id.) In her further testimony, Ms. Wedge stated that in order to identify Ultram a person would have
{5} Other witnesses testified as to the identity and naturе of the drug involved in this case. (Id. at 109, 115-117, 135, 158, 176-179.) Those witnesses identified the drug as Ultram, a prescription-only medication. (Id.) Opp did not testify at trial but a recording of her interview, taken on March 15, 2012, was played to the jury. (Id. at 121-133.) In the interview, Opp identified the drug found on her as Ultram, which she obtained with a valid prescription. (Id. at 122, 127-128, 133.) On appeal, there is no challenge to the recorded interview being admitted. The defense did not present evidence. (See id. at 184-185.)
{6} On May 30, 2013, after a one-day jury trial, the jury rendered a guilty verdict, and on July 9, 2013, Opp was sentenced to nine months in prison. Opp now appeals, raising one assignment of error.
THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE STATE‘S EXPERT WITNESS TO TESTIFY DESPITE THE FAILURE OF THE STATE TO COMPLY WITH OHIO RULE OF CRIMINAL PROCEDURE 16(K).
An expert witness for either side shall prepare a written report summarizing the expert witness‘s testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the еxpert‘s qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to oppоsing counsel shall preclude the expert‘s testimony at trial.
{8} Opp does not allege that she was prejudiced in any way by the lack of the report or that the exclusion of the pharmacist‘s testimony would have changed the result of her trial. She is claiming that the trial was “fundamentally flawed” because “the State was given a free pass and, in essence, absolute immunity from having to follow
{10} The Fifth District Court of Appeals considered the question of “whether
Included in
Crim.R. 16(K) referring to the twenty-one day rule is the phrase “which period may be modified by the court for good cause shown, which does not prejudice any other party.” New subsection (L)(1) is essentially a codification of the case law favoring the trial court‘s discretion in fashioning remedies to satisfy justice:“(L) Regulation of discovery.
“(1) The trial court may make orders rеgulating 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 рarty from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances.”
Id. at ¶¶ 19-21. The Fifth District Court of Appeals then decided that the trial court had not erred in allowing an expert to testify in spite of the untimeliness of
{11} The Eleventh District Court of Appeals engaged in similar reasoning in a case where a doctor was testifying as an expert without providing a written report as required by
“[t]he purpose of the rule is to avoid unfair surprise by providing notice to the defense and allowing the defense an opportunity to challenge the expert‘s findings, analysis, or qualifications, possibly with the support of an adverse expert who could discredit the opinion after carefully reviewing thе written report.”
Id. at ¶ 36, quoting State v. Perry, 11th Dist. Lake No.2011-L-125, 2012-Ohio-4888, ¶ 55. The appellate court further supported its holding by an analogy to the civil rules:
the rationale behind the application of
Crim.R. 16(K) in a case like this is similar to the rationale behind the requirement in civil cases where an expert report must have been produced pursuant to the local rules before a treating physician‘s opinion testimоny could be admitted. The policy behind these rules is to avoid ambush andthwarting of opposing counsel‘s ability to effectively cross-examine the expert.
Id. at ¶ 37. Since the purpose of the rule was not violated, and the defendant was not ambushed or thwarted in its opportunity to effectively cross-examine the expert, reversal was not warranted. Id. at ¶¶ 45-46.
{12} Likewise, the Twelfth District Court of Appeals rejected the argument that the trial court is obligated to exclude an expert‘s testimony “on the ground that the state failed to provide [the defendant] with a copy of the [expert‘s] report and summary of her qualifications, irrespective of whether he could show he was actually prejudiced by the state‘s failure to strictly comply with the rule.” State v. Retana, 12th Dist. Butler No. CA2011-12-225, 2012-Ohio-5608, ¶ 51. The Retana court quoted the 2010 Staff Notes for Division (L) of
{13} This reasoning of the Twelfth District Court of Appeals was cited with approval by the Sixth Distriсt Court of Appeals, which held that “[e]ven if a violation of
{14} In a case from the Fourth District Court of Appeals, State v. Willett, 4th Dist. Ross No. 11CA3260, 2012-Ohio-2186, ¶ 29, the court did not address the issue directly, holding instead that the witness did not testify as an expert and
{15} In asking us to apply the strict literal reading to division (K) of
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.
{16} We therefore continue to apply the long-established precedent, which holds that questions regarding the admission or exclusion of evidence are within the trial court‘s discretion, State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987), and we will apply this standard to the trial court‘s actions in connection with violations of
{17} The term abuse of discretion implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). It involves views or actions ” ‘that no conscientious
{18} The State disclosed Ms. Wedge as a witness and provided the address of the pharmacy in which she worked. (R. at 17.) It further provided Ms. Wedge‘s curriculum vitae in its “Continuance to Discovery,” citing
{19} Furthermore, Opp does not allege and we do not find that the “foreknowledge” of the fact that Ms. Wedge was going to testify as to the nature of Ultram as a prescription-only medication and as to the method of its identification “would have benefited [her] in the preparation of [her] defense.” See Joseph, 73 Ohio St.3d at 458. Opp‘s counsel was afforded an opportunity to cross-examine Ms. Wedge and no allegations are made as to ineffectiveness of this
{20} Although the failure to prepare and disclose “a written report summarizing the expert witness‘s testimony” was a violation by the State, the trial court did not err in allowing Ms. Wedge to testify on the very limited issues in the absence of any prejudice to Opp. Moreover, even were we to hold that the trial court erred in admitting Ms. Wedge‘s testimony, we would affirm the judgment under the harmless error doctrine.
When performing harmless error analysis, an error is deemed harmless if it did not affect the defendant‘s “substantial rights.”
Crim.R. 52(A) . An error does not affect substantial rights if “there is no reasonable probability that the error contributed to the outcome of the trial.”
State v. Smith, 3d Dist. Logan No. 8-12-05, 2013-Ohio-746, ¶ 20, quoting State v. Thomas, 3d Dist. Allen Nos. 1-11-25, 1-11-26, 2012-Ohio-5577, ¶ 40, and citing State v. Brown, 65 Ohio St.3d 483, 485 (1992). There is no allegation that the inclusion of Ms. Wedge‘s testimony regarding Ultram being a prescription-only medication and regarding methods of identification for Ultram caused any
{21} For the foregoing reasons, Opp‘s sole assignment of error is overruled. Having found no error prejudicial to Appellant, in thе particulars assigned and argued, we affirm the judgment of the Court of Common Pleas in Seneca County, Ohio.
Judgment Affirmed
SHAW, J., concurs.
Rogers J., Concurring Separately.
{22} I concur with the result reached by the majority in this case. I concur in judgment only, and write separately, because some of the cases cited by the majority concern issues of discovery in civil cases. I think it is dangerous tо equate issues of money judgments in civil cases with issues of personal liberty in criminal cases. Further, I am of the opinion that the rule of strict interpretation of criminal statutes against the state, and liberally in favor of the accused, should also apply to interpretation of the Ohio Rules of Criminal Procedure.
{23} Finally, it should bе noted that the State could well have complied with
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