[Cite as State v. Pieronek,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO C.A. No. 18AP0031

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE DEAN M. PIERONEK WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO Appellant CASE No. 2017 TR-D 008266

DECISION AND JOURNAL ENTRY

Dated: October 21, 2019

SCHAFER, Judge.

{¶1} Defendant-Appellant, Dean M. Pieronek, appeals from his conviction in the

Wayne County Municipal Court. For the reasons that follow, this Court reverses.

I.

{¶2} On August 11, 2017, Mr. Pieronek, in the course of his employment as a driver

for FedEx, was operating a truck along his route through Apple Creek in Wayne County. While

driving the truck on Bank Street, Mr. Pieronek “heard a big bang” and immediately stopped his

truck. He noticed a wire on the truck and, according to Mr. Pieronek, he informed a FedEx

dispatcher “about hitting a wire and the damage to the poles.” Mr. Pieronek indicated that he

waited approximately ten minutes to hear back from the dispatcher, who then instructed him to

continue on his route and fill out an incident report when he got back. Mr. Pieronek left the

scene and continued on his route to his next stop at a business located on Apple Creek Road. 2

Thereafter, Mr. Pieronek proceeded toward another stop on his route, but was forced to park his

truck until he completed a mandatory half hour break.

{¶3} Meanwhile, a witness looking out of a window in the front room of his house had

observed the FedEx truck get hooked on something at the intersection of Bank Street and County

Road 44. He saw a wire come out of the transformer, followed by a shower of sparks, and the

lights going out. The witness, who resides on West Wood Drive in Apple Creek, contacted the

Wayne County Sheriff’s office to report the incident. The witness also contacted the electric

service provider to report the downed power line and approximately five or six poles. After the

Highway Patrol arrived, the witness gave a statement to Trooper Hannah Hill.

{¶4} While on his mandatory break, Mr. Pieronek received a message from a FedEx

dispatcher instructing him to return to the location where he had struck the wire. Mr. Pieronek

met with Trooper Hill and gave a statement. Trooper Hill cited Mr. Pieronek for violating R.C.

4506.15(A)(11).

{¶5} The complaint filed in the Wayne County Municipal Court originally charged Mr.

Pieronek for violating R.C. 4506.15(A)(11). Upon the State’s motion, the charge was later

amended to charge Mr. Pieronek for failure to stop after an accident under R.C. 4549.02, a

misdemeanor of the first degree. Mr. Pieronek entered a plea of not guilty to the charge.

{¶6} The matter was set for trial and, after several continuances of the trial date, the

matter proceeded to a bench trial. After the State presented its case, Mr. Pieronek moved the

trial court for a judgment of acquittal pursuant to Crim.R. 29. The trial court overruled the

motion. As trial counsel for Mr. Pieronek presented his case, the State moved to exclude all of

his witnesses on the grounds that he failed to provide a witness list. The trial court granted the

motion, and Mr. Pieronek was the only witness permitted to testify in his defense. 3

{¶7} The trial court found Mr. Pieronek guilty of “hit skip” in violation of R.C.

4549.02. The trial court sentenced Mr. Pieronek to a six-month license suspension and fined him

five hundred dollars. Mr. Pieronek appealed his conviction raising six assignments of error for

our review. For ease of analysis, we consolidate certain assignments of error.

II.

Assignment of Error I

The trial court committed prejudicial error by not granting defense counsel’s [Crim.R.] 29 motion, since it was undisputed that the incident in question did not involve a collision with either a pedestrian or another motor vehicle nor did it occur upon public road or highway as required by R.C. 4549.02 and the controlling case law.

Assignment of Error II

The evidence presented at trial was insufficient to sustain a finding of guilt for hit-skip pursuant to R.C. 4549.02.

{¶8} In his first assignment of error, Mr. Pieronek contends that the trial court erred by

denying his Crim. R. 29 motion for judgment of acquittal. In his second assignment of error, he

contends that his conviction was not supported by sufficient evidence. Both assignments of error

are premised upon the same argument: that the State failed to present sufficient evidence to show

that the collision occurred with “property upon the roadway” in order to satisfy the elements of

R.C. 4549.02.

{¶9} Crim.R. 29(A) provides that a trial court shall enter a judgment of acquittal upon

motion after the evidence on either side is closed, “if the evidence is insufficient to sustain a

conviction of such offense[.]” A challenge to the sufficiency of a criminal conviction presents a

question of law, which we review de novo. State v. Thompkins,

(1997).

In carrying out this review, our “function * * * is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the 4

defendant’s guilt beyond a reasonable doubt.” State v. Jenks,

(1991),

paragraph two of the syllabus. After such an examination and taking the evidence in the light

most favorable to the prosecution, we must decide whether “any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.”

{¶10} R.C. 4549.02 (A)(1) states in pertinent part: “[i]n the case of a motor vehicle

accident or collision with persons or property on a public road or highway, the operator of the

motor vehicle, having knowledge of the accident or collision, immediately shall stop the

operator’s motor vehicle at the scene of the accident or collision.”

{¶11} In support of his sufficiency argument, Mr. Pieronek cites to State v. Cutlip, 9th

Dist. Summit No. 28735,

. In Cutlip, this Court found insufficient evidence to

support a conviction for failure to stop where the collision occurred after Mr. Cutlip left the

roadway, collided with a mailbox adjacent to the road, and landed in a ditch. Recognizing in

Cutlip that the accident did not, as it must, “occur on a public road or highway[,]” we concluded

that the trial court erred by denying Mr. Cutlip’s Crim.R. 29 motion for judgment of acquittal.

Id. at ¶ 10-11; see R.C. 4549.02(A).

{¶12} Despite Mr. Pieronek’s insistence that the outcome in Cutlip is determinative of

this case, the facts of the present matter are wholly distinguishable from the facts at issue in

Cutlip. Here, Mr. Pieronek does not claim that the collision occurred after he left the roadway,

nor does he attempt to establish that the overhead wires with which he collided were located

adjacent to the roadway. In his merit brief, Mr. Pieronek asserts that it is “undisputed” that he

“was lawfully driving his FedEx tractor trailer on a road he had travel[ed] many times before

when his vehicle somehow caught on overhanging power line.” Indeed, such facts are not in

dispute. By Mr. Pieronek’s own admission, he was operating his vehicle on the road when it 5

collided with overhanging power lines. Consequently, Mr. Pieronek concedes the very element

of R.C. 4549.02 he purports to challenge in his first two assignments of error. Accordingly, and

upon our review of the record viewing the evidence submitted in a light most favorable to the

State, we cannot conclude that there was insufficient evidence to convince the trier of fact as to

Mr. Pieronek’s guilt beyond a reasonable doubt.

{¶13} Mr. Pieronek’s first and second assignments of error are overruled.

Assignment of Error III

The verdict of guilty for hit-skip pursuant to R.C. 4549.02 was against the manifest weight of the evidence.

{¶14} In his third assignment of error, Mr. Pieronek asserts that the verdict was against

the manifest weight of the evidence. When considering an argument that a criminal conviction is

against the manifest weight standard, this Court is required to

review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten,

(9th Dist. 1986). Courts are cautioned to only reverse a

conviction on manifest weight grounds “in exceptional cases,” State v. Carson, 9th Dist. Summit

No. 26900,

, citing

, where the evidence “weighs heavily

against the conviction[.]”

.

{¶15} Although Mr. Pieronek’s merit brief does set forth the standard of review for a

manifest weight challenge, he does not articulate a manifest weight argument. Mr. Pieronek

instead asserts that “it is clear that controlling case law was not followed” and briefly reiterates

the arguments presented in his first assignment of error. In doing so, Mr. Pieronek fails to

provide citations to the parts of the record on which his contention is based and has not presented 6

an argument supporting his contentions with respect to this assignment of error as required by

App.R. 16(A)(7). This court will not create or develop an argument on Mr. Pieronek’s behalf.

State v. Jackson, 9th Dist. Summit No. 28691,

, citing State v. Sadeghi, 9th

Dist. Wayne No. 14AP0051,

.

{¶16} Mr. Pieronek’s third assignment of error is overruled.

Assignment of Error IV

The trial court denied [Mr. Pieronek] due process by prohibiting all of [his] subpoenaed witnesses from testifying[.]

{¶17} In his third assignment of error, Mr. Pieronek contends that the trial court erred by

granting the State’s motion to exclude all of his subpoenaed witnesses from testifying. We

agree.

{¶18} A defendant’s “right to offer the testimony of witnesses * * * is in plain terms the

right to present a defense,” and “[t]his right is a fundamental element of due process of law.”

City of Lakewood v. Papadelis,

(1987), quoting Washington v. Texas,

(1967). Yet, where the defendant fails to properly disclose witnesses, it is within the

discretion of the trial court “to exclude testimony that is not disclosed in a timely manner in

order to prevent surprise and ensure a fair trial.” State v. Calise, 9th Dist. Summit No. 26027,

. However, “the sanction of exclusion may infringe on a criminal

defendant’s Sixth Amendment right to present a defense, particularly where * * * all the

defendant’s witnesses are excluded.”

.

{¶19} Crim.R. 16 regulates discovery in criminal proceedings. The purpose of the “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.” Crim.R. 7

16(A). Crim.R. 16(I) provides in pertinent part that “[e]ach party shall provide to opposing

counsel a written witness list, including names and addresses of any witness it intends to call in

its case-in-chief, or reasonably anticipates calling in rebuttal or surrebuttal.” If a party fails to

comply with this rule or with an order issued pursuant to this rule, the trial court may “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.” Crim.R. 16(L)(1).

{¶20} We review a trial court’s decision regarding a Crim.R. 16 discovery violation for

an abuse of discretion. State v. Price, 9th Dist. Medina No. 14CA0070-M,

.

An abuse of discretion is more than an error of judgment; it means that the trial court was

unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore,

(1983). A trial court may abuse its discretion where it fails to engage in a sound

reasoning process. State v. Darmond,

,

. When

applying this standard, a reviewing court is precluded from simply substituting its own judgment

for that of the trial court. Pons v. Ohio State Med. Bd.,

(1993).

{¶21} After the close of the State’s case, counsel for Mr. Pieronek attempted to call the

first witness for the defense. The State objected to the witness testifying on the grounds that Mr.

Pieronek had not provided the State with a witness list. Mr. Pieronek’s trial counsel countered

the State’s claim, asserting that the “[w]itnesses were identified,” that she issued subpoenas to

each witness, and that copies of the subpoenas were provided to the court and also to the State

each and every time this case was set for trial.

{¶22} The State acknowledged that they received notice of the subpoenas for the

defense witnesses prior to the trial and that they had “received subpoenas every time[.]”

However, the State argued that Mr. Pieronek’s efforts were insufficient because Crim.R. 16 8

“dictates and requires” a list of witnesses. Citing to this Court’s decision in State v. Bennet, 9th

Dist. Wayne No. 10CA0061,

, the State argued that Mr. Pieronek’s failure to

provide such a list required the exclusion of the witnesses’ testimony.

{¶23} At issue in Bennet was the State’s act of providing the defendant with a copy of a

police report and informing Mr. Bennet of its intention to call as witnesses all of the individuals

mentioned therein. Considering the purpose and the language of Crim.R. 16(A), we held that

“an actual witness list is what the rule requires,” stating:

this Court believes that when Crim.R. 16 requires the parties to exchange witnesses lists, the rule means exactly what it says. It does not say that parties may exchange documents from which the identities of potential witnesses may possibly be gleaned, but requires the exchange of witness lists.

Bennet at ¶ 6. Despite having determined that the State failed to comply with Crim.R. 16(I), this

Court went on to conclude that Mr. Bennet failed to show he was prejudiced by the trial court’s

decision to allow a witness to testify.

{¶24} In the present matter, the trial court reviewed the record and informed the parties

of its conclusion that, regardless of the subpoenas identifying the defense witnesses, Mr.

Pieronek failed to provide a witness list. The record reflects that counsel for Mr. Pieronek

attempted to persuade the trial court that these witnesses were not a surprise to the State, and

argued that an adverse ruling regarding the witnesses would prevent Mr. Pieronek from

presenting a defense. The trial court declined to consider whether the State was prejudiced or

surprised by the witness, indicating instead that the Bennet case was “dead on point” and it does

not “even get into the whole issue about surprise” before concluding that the court was bound to

follow the case in its decision. The trial court then ruled, “in accordance with [Bennet,]” that the

defense failed to demonstrate that a witness list had been provided to the State prior to trial,

sustained the State’s objection, and excluded the testimony of Mr. Pieronek’s witnesses. After 9

making its ruling, the trial court permitted counsel to identify the witnesses and make a proffer of

their respective testimony.

{¶25} The trial court’s application of the holding in Bennet to the facts of this case is

questionable in and of itself. The record is clear that Mr. Pieronek subpoenaed six witnesses—

Trooper Elliot Rawson, Jeremey Carson, Mike Cullop, Ryan Fisher, Joe Hensley, and Rich

Stichle—to attend and give testimony at trial on Thursday, May 17, 2018, and served a copy of

each subpoena on the assistant prosecuting attorney handling the case. Although these

subpoenas do not constitute the single document containing a list of witnesses—which would be

the preferred method for ensuring compliance with Crim.R. 16—the subpoenas clearly list and

specifically identify the individuals Mr. Pieronek intended to call, contain the information

required by Crim.R. 16(I), and were provided to the State prior to trial. This is notably

distinguishable from the facts of Bennet, where the State handed over a police report and

expected the defense to glean from it the witnesses the State might chose to call. Nevertheless,

this Court need not reach the merits of that issue.

{¶26} Even if we were to assume that the subpoenas failed to comply with the witness

list requirement in Crim.R. 16(I), the question then turns to whether the trial court abused its

discretion by imposing this sanction, based solely on the finding that Mr. Pieronek failed to

provide the State with a witness list, “to exclude all the witnesses the defendant intended to call,

other than the defendant himself.” Papadelis,

. Although the trial court

concluded that “surprise” to the State was not an appropriate consideration under the court’s

interpretation of Bennet, such a conclusion is not supported by our decision in that case.

Moreover, the trial court’s interpretation of the law, and ultimately the trial court’s decision, are

contrary to controlling law. 10

{¶27} Prior to imposing sanctions, “a trial court must inquire into the circumstances

surrounding a violation of Crim.R. 16[(I).]” Papadelis, at 5. The Supreme Court of Ohio has

articulated factors to be considered by the trial court in its inquiry, including: “the extent of

surprise or prejudice to the state if the testimony were allowed, the impact that excluding the

testimony would have on the trial, whether the violation was willful or in bad faith, and the

effectiveness of less severe sanctions” Darmond,

, citing

.

When fashioning an order under Crim.R. 16(L)(1), trial courts may only “impose the least severe

sanction” to remedy the discovery violation. Papadelis at paragraph two of the syllabus.

{¶28} The record reflects that the trial court declined to consider any of the

circumstances surrounding the purported discovery violation. To the contrary, the trial court

evinced a faulty belief that it was precluded by law from considering whether the prosecution

would be surprised or prejudiced by the testimony of witnesses all of whom, the State was

admittedly aware, had been subpoenaed to testify at trial. Nor did the trial court take into

account the impact that exclusion of all defense witness would have on the trial and on the

outcome of the case: effectively denying Mr. Pieronek the ability to present a defense.

Furthermore, the record reflects that the trial court did not contemplate any alternative to this

sanction, much less consider the feasibility of a sanction less severe than the exclusion of Mr.

Pieronek’s witness.

{¶29} Based on the foregoing, we conclude that the trial court abused its discretion.

“[T]he trial court did not indicate that it balanced the [S]tate’s interests against [Mr. Pieronek’s]

Sixth Amendment right to present a defense by considering any sanction other than excluding the

testimony of his witnesses.” Papadelis,

. Thus, without considering whether

it was an appropriate sanction, the trial court arbitrarily applied the exceedingly harsh sanction of 11

excluding the defense’s witnesses. Accordingly, Mr. Pieronek’s fourth assignment of error is

sustained.

Assignment of Error V

[Mr. Pieronek] was denied due process and a fair trial d[ue] to the prosecutorial misconduct of the state of Ohio[.]

Assignment of Error VI

[Mr. Pieronek] received ineffective assistance from his trial counsel.

{¶30} In his fifth assignment of error, Mr. Pieronek argues that he was denied due

process based on prosecutorial misconduct that deprived him of a fair trial. In his sixth

assignment of error, he contends that his trial counsel was ineffective for failure to strictly

comply with Crim.R. 16. We decline to address his fifth and sixth assignments of error, having

concluded that they are moot in light of this Court’s resolution of his fourth assignment of error.

See App.R. 12(A)(1)(c).

III.

{¶31} Mr. Pieronek’s first, second, and third assignments of error are overruled. His

fourth assignment of error is sustained, and his fifth and sixth assignments of error are moot.

The judgment of the Wayne County Municipal Court is reversed and remanded for proceedings

consistent with this decision.

Judgment reversed and cause remanded.

There were reasonable grounds for this appeal. 12

We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

JULIE A. SCHAFER FOR THE COURT

TEODOSIO, P. J. CALLAHAN, J. CONCUR.

APPEARANCES:

JAMES W. ARMSTRONG, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting Attorney, for Appellee.