[Cite as State v. Viera,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : CHRISTOPHER M. VIERA : Case No. 11CAA020020 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 09 CRI 09 0444B

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 12, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ERIC C. PENKAL JOHN R. CORNELY 140 North Sandusky Street 21 Middle Street 3rd Floor P.O. Box 248 Delaware, OH 43015 Galena, OH 43021-0248 Delaware County, Case No. 11CAA020020 2

Farmer, J.

{¶1} On September 18, 2009, the Delaware County Grand Jury indicted

appellant, Christopher Viera, on two counts of theft in violation of R.C. 2913.02, one

count of receiving stolen property in violation of R.C. 2913.51, and one count of burglary

in violation of R.C. 2911.12. Said charges arose from the theft of a motor vehicle and

then some items from the garage of Gary Glass.

{¶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

Crim.R. 16(K). Both motions were denied.

{¶3} A jury trial commenced on January 25, 2011. The trial court granted

appellant's Crim.R. 29 motion on one of the theft counts, theft of a motor vehicle. The

jury found appellant guilty of the remaining theft count and the receiving stolen property

count, and not guilty of the burglary count. By judgment entry of sentence filed January

27, 2011, the trial court sentenced appellant to an aggregate term of thirty months in

prison.

{¶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)." Delaware County, Case No. 11CAA020020 3

II

{¶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 Crim.R. 16, and the issue of whether previous

case law permitting trial courts to have discretion in enforcing the rule are applicable

sub judice.

{¶10} Of procedural importance is the fact that appellant was indicted prior to the

effective date of newly enacted Crim.R. 16, July 1, 2010. The indictment was filed on

September 18, 2009, appellant was arraigned on April 19, 2010, the state's original

discovery was filed on April 19, 2010, and the state's supplemental discovery was filed

on July 30, 2010. These dates are important as they relate to Assignment of Error I

because Ms. Durham as an expert and her report as to fingerprints were disclosed to

appellant prior to the new rule date, but her report as to palm prints was filed after. Delaware County, Case No. 11CAA020020 4

I

{¶11} Appellant claims the trial court erred in permitting Ms. Durham to testify

given the state's failure to follow the mandates of Crim.R. 16(K). Appellant claims he is

entitled to a new trial because Crim.R. 16(K) obviates the trial court's discretion to

sanction non-disclosure by any other remedy other than exclusion. We disagree.

{¶12} Crim.R. 16(K) states the following:

{¶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 party. 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 Crim.R. 16(K). Although the

report was timely disclosed under the rule, it failed to include Ms. Durham's

qualifications. It is conceded that her curriculum vitae was provided the day of trial.

Given the fact that disclosure was made pursuant to the prior version of Crim.R. 16, we

find no error in failing to provide Ms. Durham's qualifications as it pertains to the

fingerprint report. Former Crim.R. 16(B)(1)(d) provided for the disclosure of the results

of scientific tests upon a defendant's request: Delaware County, Case No. 11CAA020020 5

{¶15} "Upon motion of the defendant the court shall order the prosecuting

attorney to permit the defendant to inspect and copy or photograph any results or

reports of physical or mental examinations, and of scientific tests or experiments, made

in connection with the particular case, or copies thereof, available to or within the

possession, custody or control of the state, the existence of which is known or by the

exercise of due diligence may become known to the prosecuting attorney."

{¶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 was untimely and violated Crim.R.16(K). Ms. Durham's qualifications

were also not timely given, but because she was already going to testify on the

fingerprint report as we found supra, we find this issue to be moot.

{¶17} The trial 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 Crim.R. 16(K) abolishes the trial

court's discretion. For the following reasons, we find it does not.

{¶19} 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: Delaware County, Case No. 11CAA020020 6

{¶20} "(L) Regulation of discovery.

{¶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 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."

{¶22} In this case, the trial court essentially 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 matched 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 disclose 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 erred in not disclosing witness Nusser to appellant.

While the state disclosed the name of another corrections officer to testify about Delaware County, Case No. 11CAA020020 7

booking appellant into the jail, it was not until the morning of trial that the state disclosed

the correct officer was Officer Nusser. Officer Nusser testified to booking appellant into

the jail and taking his palm prints and fingerprints. T. at 261-263. Her testimony was

merely to establish the chain of custody. The complained of exhibits, introduced during

Officer's Nusser's testimony, were State's Exhibits 11 (the booking form), 12 (the

booking photograph), and 13 (a palm print and fingerprint card). We note the palm print

portion of State's Exhibit 13 was remarked as State's Exhibit 9A.

{¶27} Appellant did not object to State's Exhibit 9A or State's Exhibit 13. T. at

291-292, 293-294. We find no evidence of plain error. Crim.R. 52(B); State v. Long

(1978),

. In Assignment of Error I, we found no error in the trial court

permitting the palm print evidence. The fingerprint card was an extra card that was not

used for comparing appellant's fingerprints to the latents.

{¶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 cross-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 plain 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 scene 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 Delaware County, Case No. 11CAA020020 8

identified appellant as being with him during the incident. T. at 132, 167. The existence

of the palm prints was merely cumulative. We find any error in the late disclosures to be

harmless. Crim.R. 52(A).

{¶30} Assignments of Error II and III are denied.

IV

{¶31} Appellant claims the cumulative errors (Assignments of Error 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.

_s/ Sheila G. Farmer_______________

_s/ William B. Hoffman_____________

_s/ John W. Wise_________________

JUDGES

SGF/sg 909 [Cite as State v. Viera,

.]

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : CHRISTOPHER M. VIERA : : Defendant-Appellant : CASE NO. 11CAA020020

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