State v. PettwayState v. Pettway
{¶ 2} In April 2003, Pettway was charged with abduction, kidnapping, intimidation, and felonious assault. Following a bench trial, the court found him guilty of a lesser included offense of assault. The court suspended the sentence of six months in jail and imposed one year community control. After considering the circumstances surrounding Pettway's obtaining the victim's journals, the court ordered him to spend one weekend in jail.
{¶ 3} In February 2003, Pettway assaulted Renae McWhorter ("the victim") in her home. They had previously dated for approximately six years and maintained a good relationship until 2000, when Pettway told her that he had children from prior relationships. The victim was upset that Pettway had a family and that he kept this information from her. Pettway testified that she became very depressed and would not leave her apartment for days. The victim testified that her depression began in 2000, and she had been taking anti-depressant medication and consulting a psychiatrist.
{¶ 4} Pettway attempted to introduce her personal journals to impeach her testimony and produce evidence showing her state of mind at the time of the assault. The court denied the admission of the journals because Pettway failed to disclose them to the State prior to trial.
{¶ 5} In his sole assignment of error, Pettway argues that he was denied his constitutional right to defend himself when the trial court improperly limited his cross-examination of the victim. Specifically, he claims that the trial court erred in excluding the journals because they had not been disclosed prior to trial.
{¶ 6} The admission or exclusion of evidence rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d
{¶ 7} In order to find an abuse of that discretion, we must determine whether the trial court's decision to admit or to exclude the evidence was arbitrary, unreasonable, or unconscionable and not merely an error of judgment. State v.Xie (1992),
{¶ 8} Pettway argues that the victim's journals were not subject to pretrial discovery under
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{¶ 11} The criminal rules do not require a party to provide a witness' prior statement as part of pretrial discovery, but the witness statements are discoverable during trial pursuant to an in camera inspection under
{¶ 12} Although the term "statement" is not defined under
{¶ 13} "(a) a written statement actually signed, or otherwise adopted or approved by a witness or party; (b) a mechanical recording of the witness's words or transcription thereof; or (c) a substantially verbatim recital of such statement in a continuous narrative form." State v. Moore (1991),
{¶ 14} Case law provides that "statements" under
{¶ 15} The victim's journals were tangible objects, discoverable under
{¶ 16} Pettway claims that even if the court was correct in ruling that the journals were subject to pretrial discovery, exclusion of the journals was not the least restrictive sanction the trial court could have imposed.
{¶ 17} For the failure to comply with the discovery rules, the court may order a party to permit discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or any other order that it deems necessary under the circumstances.
{¶ 18} To support his argument, Pettway cites State v.Brown (1993),
{¶ 19} Pettway argues that based upon the holding in Brown, the State was under a duty to request a continuance of the trial to review the journals or to request any lesser sanction. Because the State did not request the lesser sanction, Pettway claims the court erred in imposing the most severe sanction. Pettway's reading of Brown is misguided.
{¶ 20} The State did not bear the burden of requesting the lesser sanction; the burden rested with Pettway. Exclusion of the journals would be the most favorable ruling to the State; thus, it would be illogical for the State to request a lesser sanction. Instead, Pettway would benefit from the continuance, thus placing the burden upon him to request it. Because he did not request a lesser sanction at trial, we find that he has waived this argument on appeal. Even considering this argument, the trial court has broad discretion in imposing a sanction consistent with the circumstances of the case. We find no abuse of discretion in the instant case.
{¶ 21} Accordingly, Pettway's sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Sweeney, P.J. and McMonagle, J. Concur.