State v. Gragg

[Cite as State v. Gragg, 2017-Ohio-8703.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : Case No. 17CA2

vs. :

JAMES FRANKLIN GRAGG, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

_________________________________________________________________

APPEARANCES:

Kathryn Hapner, Hillsboro, Ohio, for appellant.

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for appellee.

CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:11-17-17
ABELE, J.

{¶ 1} James F. Gragg, defendant below and appellant herein, appeals from a Highland

County Common Pleas Court judgment of conviction and sentence for the crime of gross sexual

imposition. Appellant assigns the following error for review:

“THE TRIAL COURT ERRED IN ADMITTING STATE’S
EXHIBITS 1 AND 2 OVER DEFENDANT’S OBJECTION.”

{¶ 2} On December 6, 2016, a Highland County Grand Jury returned an indictment that

charged James F. Gragg with one count of gross sexual imposition in violation of R.C.

2907.05(A)(4), a third-degree felony. The indictment alleged that on October 8, 2016, appellant
 had sexual contact with B.T., a ten-year-old girl.

{¶ 3} At trial, the victim testified that on October 8, 2016 she was at her aunt’s house and

intended to go to a Halloween event. Later, she rode with appellant, her aunt’s boyfriend, to a

store in Sinking Springs. B.T. stated that during the drive, she sat in the front passenger seat. At

one point, appellant asked B.T. if she had a boyfriend and if she liked boys. At the store, B.T.

waited in the car while appellant shopped for cigarettes and gas. On the way home, “we started

driving. And then he pulled into like uh, it was like an area that had a bunch of trees. It was on

our way back. And I looked down at the time and I said, ‘We have to leave,’ because we had to

go to our thing. And then he started tickling me on like my upper thigh, and I felt like he went

right under my underwear and was tickling me.” B.T. testified that after she told her mother, her

mother took her to the police department to file a report. B.T. also testified that appellant had

tickled her on the upper thigh once before in his bedroom.

{¶ 4} Andrea Powers, a forensic interviewer from the Mayerson Clinic at Cincinnati

Children’s Hospital, testified that she interviewed B.T. on October 20, 2016. Powers stated that

B.T. told her that when she and appellant returned from a store, appellant “pulled into a wooded

area and proceeded to tickle and then touched her by her vaginal area” * * * “under her panties.”

Powers also noted that the clinic did not perform a medical exam due to the time frame and the

nature of the contact.

{¶ 5} Jennifer Shinkal, an investigator with the Highland County Sheriff’s Office, testified

that she interviewed appellant on October 16, 2016. At the interview appellant stated that when he

and B.T. went to the store he did not stop the car at any point. He further denied touching, hugging,

or tickling B.T. On October 27, 2016, appellant once again appeared at Shinkal’s office and again

denied touching B.T. on the date in question. However, appellant did admit that he touched the
HIGHLAND, 17CA2 3

victim on her bottom earlier that summer while she wore a swimsuit at the beach. After appellant

left Shinkal’s office on October 27, he called her later that day and said “You are right * * * We

were driving in the car. [B.T.] was in a bad mood, so I started tickling her, and my hand slipped, and

I touched her in her vaginal area.” Appellant claimed, however, that he did not do this intentionally

and he denied that he had stopped the car before he engaged in this behavior. During her testimony,

Shinkal referred to Exhibit 1, the road map, as she testified to the route appellant had indicated that

he had driven on October 8, 2016. Shinkal also testified that the topographic map, Exhibit 2, shows

the wooded areas along the drive, as well as the houses and driveways. Shinkal stated that the maps

came from the Geographic Information System (GIS) Office for Highland County.

{¶ 6} After Investigator Shinkal testified, the state sought to enter into evidence the two maps

of Highland County. Exhibit 1 is a road map of Highland County and Exhibit 2 is a topography

map that shows terrain elevation, streams, roads, fields and woods. Defense counsel objected to the

introduction of the maps into evidence. After the trial court noted that the maps are a public record,

the court then asked how appellant was prejudiced and counsel stated “Well, it’s just irritating that

we just * * * Because you tell us we have a cut-off date that we have to show discovery 7 days

before trial, and that’s the rule.” The court replied: “Okay. Well, I would agree it should have been

disclosed some time ago. But, I will say it’s sloppiness, not intentional; and in this case since this is

just a map that is just going to illustrate testimony, it’s really kind of like a visual aid as opposed to

substantive evidence, so I’m going to overrule it and admit it for that purpose. But, if it had been

something that was substantive, I would have excluded it.”

{¶ 7} After hearing the evidence, the jury found appellant guilty of the gross sexual

imposition charge. The trial court classified appellant as a Tier II sex offender and sentenced him to
HIGHLAND, 17CA2 4

serve fifty-four months in prison. This appeal followed.

{¶ 8} In his sole assignment of error, appellant contends that the trial court erred by admitting

into evidence State’s Exhibits 1 and 2 over his objection. In particular, appellant asserts that after

the state initially complied with the defense’s demand for discovery, the state disclosed the

additional materials (Exhibit 1, a road map, and Exhibit 2, a topographical map) on Friday, March

10, 2017, only three days prior to trial.

{¶ 9} Highland County Local Rule 33.2 provides: “Counsel for defendants shall be expected

to request discovery from the State of Ohio promptly after being appointed or retained. The State of

Ohio is expected to promptly comply. Compliance with the discovery request by a defendant should

be completed prior to the first pre-trial. Defendant is expected to comply with the State’s request by

the final pre-trial.” In addition to the local rule, Criminal Rule 16 governs the discovery process, as

well as sanctions for discovery violations. “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.” Crim.R. 16(L)(1).

{¶ 10} When the state introduced Exhibits 1 and 2, the maps in question, defense counsel

objected. The trial court, however, allowed them to come into evidence. The Supreme Court of

Ohio has held that Crim.R. 16 vests the trial court “with a certain amount of discretion in

determining the sanction to be imposed for a party’s nondisclosure of discoverable material.” State

v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 114, citing State v. Parson, 6 Ohio
HIGHLAND, 17CA2 5

St.3d 442, 445, 453 N.E.2d 689 (1983). The choice of sanction rests within the discretion of the

trial court, and appellate courts will reverse only if the court abuses its discretion and the defendant

is prejudiced. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689; State v. Scudder, 71 Ohio St.3d 263, 269,

71 Ohio St.3d 263 (1994). Generally, an abuse of discretion implies that a court’s attitude is

unreasonable, arbitrary or unconscionable. State v. Herring, 94 Ohio St.3d 246, 255, 762 N.E.2d

940 (2002). Further, in reviewing for an abuse of discretion, appellate courts must not substitute

their judgment for that of the trial court. State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio

St.3d 728, 732, 654 N.E.2d 1254 (1995).

{¶ 11} “A trial court must inquire into the circumstances surrounding a discovery rule

violation and, when deciding whether to impose a sanction, must impose the least severe sanction

that is consistent with the purpose of the rules of discovery.” Lakewood v. Papadelis, 32 Ohio St.3d

1, 511 N.E.2d 1138 (1987), syllabus paragraph two. Parson established guidelines for evaluating

the trial court’s exercise of discretion in this area: Where in a criminal trial, the prosecution fails to

comply with Crim.R. 16 and the record does not demonstrate (1) that the prosecution’s failure to

disclose was a willful violation of Crim.R. 16, (2) that foreknowledge of the statement would have

benefitted the accused in the preparation of his defense, or (3) that the accused was prejudiced by

admission of the statement, the trial court does not abuse its discretion under Crim.R. 16(E)(3) by

permitting such evidence to be admitted. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689, syllabus.

While the subsections of Crim.R. 16 have changed somewhat, these factors are still relevant to our

inquiry today.

{¶ 12} After our review, we conclude that none of the three Parson factors exist in this case.

First, nothing in the record indicates that the state’s failure to provide the two maps is a willful
HIGHLAND, 17CA2 6

discovery violation. The state did provide the maps to defense counsel prior to trial, albeit three

days prior to trial. While the trial court agreed that the maps should have been disclosed earlier, the

court concluded that the cause is “sloppiness” rather than an “intentional” act. In a similar case, the

Sixth District considered a situation in which the state failed to disclose witnesses until the day

before trial. See State v. Shade, 111 Ohio App.3d 565, 676 N.E.2d 938 (6th Dist.1996). The court

held that although the trial court was disturbed by the state’s apparent pattern of omitting witnesses

from requested discovery lists, the trial court made no actual finding that the omission was willful.

Id. at 568.

{¶ 13} Second, we must examine whether the foreknowledge of the two maps would have

benefitted the accused in the preparation of his defense. In State v. Hale, 119 Ohio St.3d 118,

2008-Ohio-3426, 892 N.E.2d 864, the Supreme Court of Ohio considered whether the trial court

abused its discretion by allowing the defendant’s oral statement to two police officers into evidence

even though the state failed to disclose the written statements during discovery. The court noted

that the defense had foreknowledge of the statements because the prosecutor had, prior to trial, orally

informed the defense of Hale’s statements. “While this contact did not satisfy the requirement of a

written summary, it clearly did provide the defense with foreknowledge of the statement.” Id. at ¶

117. Similarly, in the case at bar, although the state only provided notice of its intention to use the

two maps three days before trial, (1) appellant did have foreknowledge of the maps prior to trial, and

(2) the maps are public records that depict the county roadways and terrain, and are available at the

county GIS department long before this case began.

{¶ 14} Finally, we do not believe that the record established any prejudice to the appellant.

Although not provided within the discovery deadline, no surprise to the defense occurred at trial
HIGHLAND, 17CA2 7

because, once again, the prosecution disclosed the exhibits three days prior to trial. Also, the

exhibits are public records, available at all times to both parties. The trial court stated: “this is just a

map that is just going to illustrate testimony, it’s really kind of like a visual aid as opposed to

substantive evidence.” We agree. In this case, the maps are visual aides used to clarify and explain

testimony concerning the route that appellant drove, and the fact that the route is near wooded areas.

{¶ 15} Appellant cites State v. Watters, 27 Ohio App.3d 186, 500 N.E.2d 312, to support his

argument that the maps would have benefitted the preparation of his defense and that their admission

prejudiced him. However, Watters involved a trial for gross sexual imposition in which, on the

third day of trial and after the defense had called several alibi witnesses, the prosecution informed

defense counsel that the state intended to call two additional witnesses, Watters’ fellow prison

inmates who had written letters to the prosecutor regarding appellant’s case. The trial court allowed

the letters, which (1) described Watters’ confession to each of the inmates to the crimes, and (2)

indicated that Watters told the two inmates that he intended to fabricate an alibi defense. The First

District concluded that allowing the two letters into evidence constituted an abuse of discretion.

{¶ 16} We believe that Watters is distinguishable from the case sub judice for two reasons.

First, the letters in Watters clearly could have benefitted the preparation of the appellant’s defense

and the nondisclosure seriously handicapped the defendant in deciding whether to testify. In the

case at bar, nothing appears in the pre-existing maps that would have benefitted the preparation of

appellant’s defense. Second, while the First District found prejudice because the defendant’s entire

defense rested upon a credible alibi, we do not believe that prejudices exists here via admission of

the two maps, showing county roadways and topographical features along the roadways. Once

again, the documents are public records that existed long before the trial. While appellant argues
HIGHLAND, 17CA2 8

that without the maps, the victim’s testimony was about “an area with a bunch of trees” that could be

almost anything, we do not believe that the maps prejudiced appellant. We also note that appellant

did not request a continuance of the trial, nor did appellant ask for time to review the maps, both

options that would have been less restrictive than refusing to admit the maps or dismissing the case.

{¶ 17} In Parker, the Supreme Court of Ohio found no prejudice when the prosecutor failed

to disclose a tape-recording of appellant’s interview, which the prosecution used to identify him and

later offered in evidence. The issue was whether a mislabeling of the tape that resulted in

nondisclosure required the trial court to impose sanctions on the prosecution. The court, however,

found no wilfulness and no prejudice. In the case at bar, we believe that the two maps in question

are far less prejudicial than a tape recording of a defendant’s interview used to identify him and

offered in evidence on the issue of guilt. Parker, 53 Ohio St.3d 82, 558 N.E.2d 1164 (1990).

{¶ 18} Consequently, although the state’s late disclosure of Exhibits 1 and 2 did violate

Criminal Rule 16, we conclude that the trial court did not abuse its discretion by allowing those

items into evidence. While a trial court has discretion to determine the appropriate sanction for a

discovery violation, the court must choose the least severe sanction that is consistent with the rules

of discovery. In the case sub judice, we believe that the trial court properly exercised its discretion.

{¶ 19} Accordingly, for the foregoing reasons, we overrule appellant’s assignment of error

and affirm the trial court’s judgment.

JUDGMENT AFFIRMED.
 [Cite as State v. Gragg, 2017-Ohio-8703.]

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellee recover of appellant the 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 Highland County
Common Pleas Court to carry this judgment into execution.

If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Supreme Court of Ohio an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty-day period.

The stay will also terminate if appellant fails to file a notice of appeal with the Supreme
Court of Ohio in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.

Harsha, J. & McFarland, J.: Concur in Judgment & Opinion

For the Court

BY:
Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.