STATE OF OHIO v. CHRISTOPHER M. VIERA
Case No. 11CAA020020
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
October 12, 2011
2011-Ohio-5263
Hоn. William B. Hoffman, P.J., Hon. Sheila G. Farmer, J., Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 09 CRI 09 0444B. JUDGMENT: Affirmed.
For Plaintiff-Appellee
ERIC C. PENKAL
140 North Sandusky Street
3rd Floor
Delaware, OH 43015
For Defendant-Appellant
JOHN R. CORNELY
21 Middle Street
P.O. Box 248
Galena, OH 43021-0248
{1} On September 18, 2009, the Delaware County Grand Jury indicted appellant, Christopher Viеra, on two counts of theft in violation of
{2} On January 21 and 25, 2011, appellant filed two motions to exclude the testimony of Carla Durham, the state‘s forensic expert, citing discovery violations under
{3} A jury trial commenced on January 25, 2011. The trial court granted aрpellant‘s
{4} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I
{5} “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 RULES OF CRIMINAL PROCEDURE RULE 16(K).”
{6} “THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE STATE TO CALL A WITNESS NOT DISCLOSED IN DISCOVERY.”
III
{7} “THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE STATE TO INTRODUCE EXHIBITS THAT WERE NOT DISCLOSED IN DISCOVERY.”
IV
{8} “THE CUMULATIVE ERRORS OF THE TRIAL COURT IN PERMITTING THE STATE TO VIOLATE CRIMINAL RULE 16 ON MULTIPLE OCCASIONS DEPRIVED APPELLANT OF HIS RIGHT TO A FAIR TRIAL, THE ASSISTANCE OF COUNSEL, AND DUE PROCESS OF LAW AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTION.”
{9} Appellant‘s assignments of error center on the trial court‘s decision as it relates to the language in newly adopted
{10} Of procedural importance is the fact that appellant was indicted prior to the effective date of newly enacted
{11} Appellant claims the trial court erred in permitting Ms. Durham to testify given the state‘s failure to follow the mandates of
{12}
{13} “(K) Expert Witnesses; Reports. 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 expert‘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 рarty. Failure to disclose the written report to opposing counsel shall preclude the expert‘s testimony at trial.”
{14} Appellant argues Ms. Durham should be excluded from testifying on both the fingerprint identification and the palm print identification. The fingerprint identification was disclosed prior to the effective date of
{16} The central issue remaining is whether the trial court erred in permitting Ms. Durham to testify as to the palm print. It is undisputed that the disclosure of the palm print report wаs untimely and violated
{17} The triаl court attempted to afford appellant additional time if he needed to prepare a defense to the palm print identification. Appellant declined the offer of a continuance and demanded the exclusion of the evidence. Although appellant makes much about a continuance being counted against him on speedy trial issues, we find this to be a “red herring.” Appellant had already signed a waiver of speedy trial, and clearly the late discovery violation would have been counted against the state.
{18} The gravamen of this issue is whether
{19} Included in
{21} “(1) The trial court may make orders regulating discovery not inconsistent with this rule. If at any time during the course of the proceedings it is brought to the attention of the сourt 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 continuanсe, 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.”
{22} In this case, the trial court еssentially did just that. It was clear from the first report that palm prints were an issue and in fact, the co-defendant‘s palm print was examined and did not match. Appellant‘s fingerprints matchеd those found at the crime scene and as the report dated October 8, 2009 indicates, a palm print card for appellant was not available.
{23} Given the circumstances sub judice, we find the trial court did not err in permitting Ms. Durham to testify.
{24} Assignment of Error I is denied.
II, III
{25} Appellant claims the trial court erred in permitting Corrections Officer Angela Nusser to testify given the state‘s failure to disclosе her as a potential witness. Appellant also claims the trial court erred in accepting several undisclosed exhibits presented by the state.
{26} It is clear that the state еrred in not disclosing witness Nusser to appellant. While the state disclosed the name of another corrections officer to testify about
{27} Appellant did not object to State‘s Exhibit 9A or State‘s Exhibit 13. T. at 291-292, 293-294. We find no evidencе of plain error.
{28} Appellant also complains of the introduction of State‘s Exhibit 14 (BCI fingerprint card). This exhibit was not provided to appellant prior to trial. Ms. Durham testified State‘s Exhibit 14 was the fingerprint card she used for comparison to the latent prints. T. at 275. Defense counsel did not object to this exhibit. T. at 294-295. In fact, defense counsel was able to сross-exam Ms. Durham on the exhibit and point out that appellant‘s social security number was listed incorrectly, thereby raising doubt about the fingerprint card. T. at 283-286. We find no evidence of рlain error.
{29} The sole issue is whether appellant was prejudiced by the late disclosures of Officer Nusser testifying and State‘s Exhibits 11 and 12. Appellant‘s presence at the crime scеne was established via the testimony. Ms. Durham established appellant‘s fingerprints matched the latent prints found at the scene. T. at 276. The co-defendant
{30} Assignments of Error II and III are denied.
IV
{31} Appellant claims the cumulative errors (Assignments of Errоr I through III) denied him a fair trial. We disagree.
{32} Having found no error in the assignments of error above, this assignment of error is denied.
{33} The judgment of the Court of Common Pleas of Delaware County, Ohio is hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
SGF/sg 909
s/ Sheila G. Farmer
s/ William B. Hoffman
s/ John W. Wise
JUDGES
STATE OF OHIO v. CHRISTOPHER M. VIERA
CASE NO. 11CAA020020
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
2011-Ohio-5263
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to appellant.
s/ Sheila G. Farmer
s/ William B. Hoffman
s/ John W. Wise
JUDGES