[Cite as State v. Wilcoxson, 2021-Ohio-4339.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29053
:
v. : Trial Court Case No. 2021-CRB-1
:
KEY’AUDI WILCOXSON : (Criminal Appeal from Municipal Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 10th day of December, 2021.
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STEPHANIE L. COOK, Atty. Reg. No. 0067101 and ANDREW D. SEXTON, Atty. Reg.
No. 0070892, City of Dayton Prosecutor’s Office, 335 West Third Street, Room 390,
Dayton, Ohio 45402
Attorneys for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek,
Ohio 45434
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Key’Audi Wilcoxson, appeals from his conviction for
aggravated menacing following a bench trial in the Dayton Municipal Court. In support
of his appeal, Wilcoxson argues that his trial counsel provided ineffective assistance by
failing to move for a trial continuance and by failing to file a timely jury demand.
Wilcoxson also contends that he was denied his constitutional right to due process as a
result of the State’s failure to provide certain video evidence in discovery. For the
reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On January 1, 2021, Wilcoxson was charged by complaint with one count of
aggravated menacing in violation of R.C. 2903.21(A), a misdemeanor of the first degree,
and one count of menacing in violation of R.C. 2903.22, a misdemeanor of the fourth
degree. The charges stemmed from allegations that Wilcoxson made threats of serious
physical harm to an employee of a laundromat where Wilcoxson was allegedly loitering.
Wilcoxson pled not guilty to the charges, and his case was set for a trial.
{¶ 3} Wilcoxson’s trial was originally scheduled for January 14, 2021 but was later
continued to January 27, 2021. On January 22, 2021, the January 27th trial date was
removed from the trial court’s schedule. Before a new trial date was scheduled, on
February 3, 2021, Wilcoxson filed a handwritten letter requesting that the trial court
remove his appointed counsel on grounds that counsel was not communicating with him.
On February 17, 2021, the trial court removed Wilcoxson’s counsel and appointed new
counsel to represent him. Also on February 17th, the trial court sent a notice to
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Wilcoxson in jail notifying him that his trial date had been rescheduled for February 25,
2021.
{¶ 4} At trial, Wilcoxson’s newly appointed counsel made an oral demand for a jury
trial and filed a written jury demand later the same day. The trial court found that the jury
demand was untimely and declined to delay Wilcoxson’s trial any further. The matter
was then tried to the bench as scheduled.
{¶ 5} The State’s first trial witness was Tane Smith, who owned a laundromat in
Dayton called “At Your Service Coin Laundry.” Smith testified that when she arrived at
the laundromat at 1:10 p.m. on January 1, 2021, she observed Wilcoxson inside the
laundromat. Smith testified that when she initially saw Wilcoxson, she noticed that he
was following a lady around. However, Smith testified that she eventually saw Wilcoxson
put a load of laundry into a washer sometime before she left the laundromat at 2:00 p.m.
Smith testified that while she was away, she remotely monitored the laundromat’s security
cameras using her cell phone; when she checked the cameras at 3:30 p.m. she saw that
Wilcoxson was still inside the laundromat. Smith testified that she then contacted her
on-duty employee, Sarah Wagner, and asked Wagner to tell Wilcoxson to leave the
premises.
{¶ 6} The State also called Wagner to testify at trial. During her testimony,
Wagner confirmed that Smith had asked her to tell Wilcoxson to leave the laundromat.
Wagner testified that she approached Wilcoxson shortly before 4 p.m. and advised him
that he had to leave the premises because he had been there for multiple hours. Wagner
testified that Wilcoxson’s response was that “he didn’t have to fucking leave” and that “no
one could make him leave.” Trans., p. 27. Wagner testified that she called Smith back
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and advised her that Wilcoxson refused to leave the laundromat. Wagner testified that
Smith instructed her to call the police in order to have Wilcoxson removed from the
premises, and Wagner called the police as instructed by Smith.
{¶ 7} Wagner testified that, after she called the police, Wilcoxson told her that he
would “punch” and “kill” her and that she “would only bleed out for two minutes.” Id. at
28. Wagner testified that these threats were made while she was standing by the
laundromat’s office and while Wilcoxson was standing 20 to 25 feet away at the front of
the laundromat. Wagner testified that she believed Wilcoxson’s threats and therefore
called the police a second time, because she feared that Wilcoxson was going to hurt her.
{¶ 8} Continuing, Wagner testified that after making her second call to the police,
Wilcoxson began to approach her by the laundromat’s dryers. Wagner testified that as
Wilcoxson approached her, he had something in his hand that looked like a knife. The
“knife” was identified by Wagner at trial, and it is best described as a serrated cheese
spreader. See State’s Exhibit 1. Wagner testified that she told Wilcoxson to back up
as he was approaching her with the cheese spreader. Wagner testified that as
Wilcoxson was approaching her, a patron of the laundromat, later identified as Carlos
Brewer, intervened. According to Wagner, Brewer and Wilcoxson began exchanging
words, and Wilcoxson pulled out a hammer and attempted to hit Brewer with it. The
hammer was also identified by Wagner at trial and admitted into evidence as State’s
Exhibit 2.
{¶ 9} Wagner testified that she observed Brewer take the hammer from Wilcoxson
and throw the hammer outside across the parking lot; Wilcoxson and Brewer then began
fighting with each other outside. Wagner testified that Brewer eventually reentered the
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laundromat, and Wilcoxson followed him. At that time, Wagner saw Wilcoxson pull out
the cheese spreader again. Wagner testified that Wilcoxson cut Brewer on the arm and
forehead with the cheese spreader. Thereafter, Wagner saw Wilcoxson go outside and
throw the cheese spreader and hammer on the roof of the laundromat. Wagner testified
that Wilcoxson then came back inside the laundromat and began calling her a whore and
a drug user.
{¶ 10} Wagner testified that the entire incident with Wilcoxson lasted about an hour
and that she was concerned for her safety the entire time; she believed that Wilcoxson
would actually hurt her given his angry, aggressive demeanor. Wagner testified that she
was very scared at the time of the incident and that she was still scared of Wilcoxson.
{¶ 11} The State next presented testimony from Officer Gregory Paxton of the
Dayton Police Department. Officer Paxton testified that he was the first officer to arrive
at the laundromat after Wagner’s call. Officer Paxton testified that upon his arrival, he
was approached by a very agitated Wilcoxson, and Wilcoxson told him that he threw the
hammer and cheese spreader on the roof of the laundromat in order to get them away
from Brewer. Officer Paxton testified that the fire department recovered the hammer and
cheese spreader from the roof, and that his fellow officer, Officer Hubbard, placed the
hammer and cheese spreader in the police department’s property room.
{¶ 12} Officer Paxton also testified to transporting Wilcoxson to jail in his police
cruiser. Officer Paxton recalled speaking to Wilcoxson during the transport and noted
that Wilcoxson had told him that he wanted to press charges against Brewer. On cross-
examination, Officer Paxton confirmed that his police cruiser was equipped with cameras
for video and audio recording.
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{¶ 13} The State also presented testimony from Officer Phillip Hubbard of the
Dayton Police Department. Officer Hubbard testified that when he arrived at the scene,
he took witness statements from Wagner, Brewer, and Smith. Officer Hubbard testified
that after taking the witness statements, it was decided that Wilcoxson was going to jail.
Officer Hubbard testified that when he advised Wilcoxson that he was going to jail,
Wilcoxson attempted to kick the windows out of Officer Paxton’s police cruiser. Officer
Hubbard testified that when he instructed Wilcoxson to cease and desist, Wilcoxson
claimed to be a violent individual and indicated that he would not stop kicking the
windows. Officer Hubbard also confirmed that he had collected the cheese spreader and
hammer from the fire department and had placed those items in the police department’s
property room.
{¶ 14} The last witness at trial was Wilcoxson, who testified in his own defense.
Wilcoxson testified that he was homeless and that he was at the laundromat on the day
in question for purposes of laundering his multiple layers of clothing that were wet from
the rain. Wilcoxson testified that a laundromat employee, Wagner, initially approached
him outside while he was smoking and drinking with a lady who was also at the
laundromat. According to Wilcoxson, Wagner told him that he was loitering and needed
to “mother fucking leave.” Trans., p. 87-88. Wilcoxson also claimed that Wagner told
him: “[I]f you won’t leave, I’m gonna call my sons and my boyfriend, my husband.” Id. at
88. Wilcoxson testified that he looked at Wagner like she was crazy because he was
still doing his laundry. Wilcoxson testified that he told Wagner: “Bitch you ain’t talking to
me. * * * You talking to me sideways. I’m not loitering. I’m paying--I’m an actual paying
customer.” Id. at 88-89.
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{¶ 15} Wilcoxson testified that he and Wagner continued their argument inside the
laundromat. Wilcoxson claimed that Wagner told him that her boyfriend or husband was
going to “fuck [him] up * * * because [he] was disrespecting her.” Id. at 89. Wilcoxson
testified that he told Wagner that he doesn’t “fear nobody but God and the police” and
that Wagner could call whoever she wanted to call. Id. Wilcoxson testified that he then
went back outside to smoke more cigarettes while Wagner called the police. Wilcoxson
testified that while he was outside, he placed a hammer that he carried for protection
upside down on the sidewalk. Wilcoxson testified that he did this because he had a
violent history and did not want the police to tase or shoot him for having a weapon.
{¶ 16} Wilcoxson testified that when he went back inside the laundromat, he
noticed that Wagner had stopped the dryer in which he had been drying his clothes.
Wilcoxson testified that he began cussing at Wagner and said: “Bitch, why you touching
my clothes.” Id. at 91. Wilcoxson testified that he then went back outside and noticed
that his hammer was missing. Wilcoxson testified that a patron of the laundromat,
Brewer, then came from behind the laundromat building and said: “Yeah, bitch I got your
hammer now.” Id. at 92.
{¶ 17} Wilcoxson testified that he and Brewer started fighting outside and that
Brewer swung the hammer at him. Wilcoxson claimed that he deflected Brewer’s swing
with his arm and scratched Brewer on the head in the process. Wilcoxson also claimed
that he pulled out the cheese spreader and threw it on the roof of the laundromat because
he realized a cheese spreader was not going to help him defend himself against a
hammer. Wilcoxson testified that he eventually took the hammer away from Brewer and
threw it on the roof of the laundromat too. Continuing, Wilcoxson testified that the police
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arrived shortly after he threw the cheese spreader and hammer on the roof. According
to Wilcoxson, the police arrested him before he could tell them what happened.
Wilcoxson claimed that as he was getting arrested, he asked the officers to get video
footage from surveillance cameras that he observed outside the businesses surrounding
the laundromat, so that he could prove that he had been defending himself against
Brewer. Wilcoxson also confirmed that Wagner was not outside for most of the
altercation, and that he and Wagner had only exchanged threats.
{¶ 18} On cross-examination, Wilcoxson admitted that he “went crazy” and
verbally threatened Wagner after she had threatened to have him removed from the
laundromat. Trans., p. 98. Wilcoxson, however, claimed that he could not remember
exactly what he said when he threatened Wagner. Wilcoxson also admitted to saying
that he was violent when Officer Hubbard asked him to stop kicking the back of the
cruiser.
{¶ 19} Throughout the trial, Wilcoxson raised objections concerning the video
evidence that was discussed during the trial testimony. Wilcoxson advised the trial court
that the State had not provided him with the video footage from the laundromat’s security
cameras, the video footage from Officer Paxton’s police cruiser, or any surveillance video
footage from the businesses surrounding the laundromat. Wilcoxson argued that the
foregoing video evidence would have bolstered his credibility and contradicted the State’s
witnesses. Wilcoxson also argued that the video footage from the laundromat’s security
cameras would have been the best evidence of his altercation with Wagner. Wilcoxson
clarified that he was not raising a discovery violation under Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), but simply claimed that he was prejudiced by
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the State’s failure to provide the aforementioned video evidence.
{¶ 20} In response, the State indicated that it did not provide the video evidence to
Wilcoxson because none of the video evidence was in the State’s possession. The State
explained that it did not know about the laundromat security camera footage until the
owner of the laundromat, Smith, testified at trial. On cross-examination, Smith testified
that she left a voicemail with the police department advising that she had the laundromat
security camera footage on a USB drive at her office, but she claimed that no one from
the police department ever collected the USB drive. The State, therefore, advised the
trial court that it had never received any surveillance videos from the police department.
{¶ 21} The State also indicated that it had never obtained the video footage from
Officer Paxton’s police cruiser because the aggravated menacing and menacing offenses
at issue occurred prior to Wilcoxson’s interaction with police. The State noted that
Wilcoxson never requested the video footage in discovery and that it would have provided
Wilcoxson with the cruiser camera footage if Wilcoxson had asked for it.
{¶ 22} After hearing the parties’ arguments, the trial court noted Wilcoxson’s
objection to the video evidence for the record but ultimately determined that the video
evidence at issue would not have corroborated or supported either party’s case. The
trial court found that the State would have been required to turn over the laundromat
security camera footage to Wilcoxson had it been in the State’s possession. However,
since it wasn’t in the State’s possession, and since there was nothing on the record
indicating that the laundromat security camera footage was equipped with audio, the trial
court found that the witnesses’ testimony was sufficient evidence of the statements made
during the altercation.
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{¶ 23} After the defense rested, and after the trial court addressed Wilcoxson’s
arguments, the trial court found Wilcoxson guilty of both aggravated menacing and
menacing. Thereafter, the State advised the trial court that the two offenses should
merge into one conviction and that the State would like to have Wilcoxson convicted for
aggravated menacing. The trial court agreed that a merger of the offenses was
appropriate and thereafter sentenced Wilcoxson for aggravated menacing as elected by
the State. The trial court sentenced Wilcoxson to 180 days in jail with 40 days
suspended and 68 days of jail-time credit. The trial court also ordered Wilcoxson to pay
a $25 fine and court costs.
{¶ 24} Wilcoxson now appeals from his conviction, raising two assignments of
error for review.
First Assignment of Error
{¶ 25} Under his first assignment of error, Wilcoxson contends that his trial counsel
provided ineffective assistance because counsel failed to move for a trial continuance
despite counsel’s entering the case only a week before trial. Wilcoxson also contends
that his trial counsel was ineffective for failing to file a timely jury demand.
{¶ 26} In order to succeed on an ineffective assistance claim, a defendant must
establish: (1) his trial counsel’s performance was deficient; and (2) the deficient
performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. The failure to make a
showing of either deficient performance or prejudice defeats a claim of ineffective
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assistance of counsel. Strickland at 697.
{¶ 27} To establish deficient performance, a defendant must show that his trial
counsel’s performance fell below an objective standard of reasonable representation. Id.
at 688; Bradley at 142. In evaluating counsel’s performance, a reviewing court “must
indulge in a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland at 689. “[A] debatable decision
concerning trial strategy cannot form the basis of a finding of ineffective assistance of
counsel.” State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964,
¶ 37 (2d Dist.), citing Strickland at 689. (Other citation omitted.) To establish prejudice,
a defendant must show that there is “a reasonable probability that, but for counsel’s
errors, the proceeding’s result would have been different.” State v. Hale, 119 Ohio St.3d
118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688 and Bradley at
paragraph two of the syllabus.
{¶ 28} As previously noted, Wilcoxson first claims that his trial counsel provided
ineffective assistance by failing to move for a trial continuance. However, “the decision
whether to request a trial continuance is debatable, and involves a strategic choice of
counsel that falls ‘within the realm of trial strategy and tactics that will not ordinarily be
disturbed on appeal.’ ” State v. Wynn, 2d Dist. Montgomery No. 25097, 2014-Ohio-420,
¶ 90, quoting State v. Warner, 8th Dist. Cuyahoga No. 95750, 2012-Ohio-256, ¶ 11, citing
State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270 and State v.
Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263. Because “requesting
continuances is a matter of trial tactics and strategy, * * * we will not second-guess trial
counsel’s decision in this regard.” Id. at ¶ 5. Therefore, Wilcoxson has failed to
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establish deficient performance on the part of his trial counsel.
{¶ 29} Wilcoxson also cannot establish that the outcome of his case would have
been different had his counsel requested a trial continuance; it is pure speculation as to
whether the trial court would have granted a trial continuance if one had been requested.
“Such speculation is insufficient to establish ineffective assistance.” State v. Short, 129
Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 119, quoting State v. Perez, 124
Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 217, citing State v. Were, 118 Ohio
St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 219 and State v. Elmore, 111 Ohio St.3d
515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 121. As a result, Wilcoxson also cannot
establish that he was prejudiced by his trial counsel’s failure to request a trial continuance.
Therefore, Wilcoxson’s first ineffective assistance claim lacks merit.
{¶ 30} For his second ineffective assistance claim, Wilcoxson contends that his
trial counsel performed deficiently and prejudiced him by failing to file a timely jury
demand. Crim.R. 23(A) provides that “[i]n petty offense cases, where there is a right of
jury trial, the defendant shall be tried by the court unless he demands a jury trial.” A jury
demand “must be made in writing and filed with the clerk of court not less than ten days
prior to the date set for trial, or on or before the third day following receipt of notice of the
date set for trial, whichever is later.” Crim.R. 23(A). “[A] defendant charged with a
misdemeanor waives the right to a jury trial unless he makes a timely written demand in
accordance with Crim.R. 23(A).” (Citations omitted.) State v. Matthews, 2d Dist.
Greene No. 2015-CA-73, 2016-Ohio-5055, ¶ 11. The time limits set forth in Crim.R.
23(A) “are to be computed with respect to the last scheduled trial date.” City of
Tallmadge v. DeGraft-Biney, 39 Ohio St.3d 300, 530 N.E.2d 1310 (1988), syllabus.
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Therefore “a continuance of the trial will renew the time within which to file a jury demand.”
Id.
{¶ 31} In this case, Wilcoxson was tried for first-degree misdemeanor aggravated
menacing and fourth-degree misdemeanor menacing, both of which were petty offenses
with a right to jury trial. See Crim.R. 2(D) and R.C. 2945.17(A) and (B). Therefore,
Wilcoxson was required to file a timely, written jury demand in order to receive a jury trial
for those offenses. Crim.R. 23(A). The record indicates that the trial court sent a notice
to Wilcoxson on February 17, 2021, informing him that his trial was rescheduled for
February 25, 2021. Given the timing of that notice, Wilcoxson was required to file a
written jury demand “on or before the third day following the receipt of notice of the date
set for trial.” Crim.R. 23(A). Wilcoxson therefore had three days from February 17,
2021, to file his jury demand, which was February 20, 2021. Because February 20,
2021, fell on a Saturday, pursuant to Crim.R. 45(A), Wilcoxson had until Monday,
February 22, 2021, to file his jury demand.
{¶ 32} There is no dispute that Wilcoxson’s trial counsel filed an untimely jury
demand on the day of Wilcoxson’s February 25th trial. However, even if we assume that
Wilcoxson’s trial counsel performed deficiently in that regard, the test for ineffective
assistance is whether any prejudice arose from counsel’s deficient performance. State
v. Ware, 2d Dist. Darke No. 2018-CA-8, 2019-Ohio-2595, ¶ 31, citing Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373, at paragraph two of the syllabus.
{¶ 33} In this case, Wilcoxson has not established that he suffered any prejudice
as a result of his trial counsel’s performance. More specifically, Wilcoxson has not
demonstrated that the outcome of his trial would have been different had his trial counsel
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filed a timely jury demand. The mere fact that Wilcoxson could have had a jury trial had
his counsel filed a jury demand does not establish prejudice. See State v. Escobar, 1st
Dist. Hamilton Nos. C-200423, C-200424, 2021-Ohio-4001, ¶ 28, citing State v.
Fitzgerald, 9th Dist. Summit No. 22381, 2005-Ohio-2411, ¶ 13 (“merely argu[ing] that he
could have had a jury trial had his counsel filed a demand notice * * * fails to establish
prejudice”) and State ex rel. Maxwell v. Trikilis, 9th Dist. Medina No. 06CA0071-M, 2007-
Ohio-1355, ¶ 27 (“[w]ith respect to a jury demand, Appellant has failed to demonstrate
that the result of his bench trial would have been different but for his counsel's failure to
make a jury demand”). Accord State v. Stroud, 11th Dist. Ashtabula No. 2017-A-0028,
2018-Ohio-904, ¶ 27; State v. Bullard, 9th Dist. Wayne No. 20AP0032, 2021-Ohio-4044,
¶ 23.
{¶ 34} Furthermore, at trial, Wilcoxson admitted to verbally threatening Wagner on
the day in question and to telling the police that he was a violent person. Wagner also
unequivocally testified that Wilcoxson threatened to punch and kill her and that she
believed those threats due to Wilcoxson’s angry, aggressive demeanor. Given the
testimony presented at trial, especially Wilcoxson’s admission to threatening Wagner, we
find that Wilcoxson has not demonstrated a reasonable probability that the outcome of
his trial would have been different had his counsel filed a jury demand. See Ware at
¶ 30 (finding that the evidence against defendant was so overwhelming that there was no
reasonable probability that the result of the proceedings would have been different absent
counsel’s failure to file a timely jury demand). Because Wilcoxson has not established
prejudice arising from counsel’s failure to file a jury demand, his second ineffective
assistance claim also lacks merit.
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{¶ 35} Wilcoxson’s first assignment of error is overruled.
Second Assignment of Error
{¶ 36} Under his second assignment of error, Wilcoxson argues that his conviction
should be reversed because his constitutional right to due process was violated as a
result of the State failing to turn over: (1) the video footage recorded by the laundromat’s
security cameras; (2) the video footage recorded in Officer Paxton’s police cruiser; and
(3) the video footage recorded by businesses surrounding the laundromat. We note that
Wilcoxson’s due process argument is not based on an alleged violation of Brady, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, i.e., that the State withheld exculpatory evidence
in discovery. Instead, Wilcoxson argues that the State’s failure to provide him with the
video evidence in discovery and the trial court’s decision to proceed with trial despite his
never receiving the video evidence prejudiced him and denied him due process. We,
however, disagree.
{¶ 37} Discovery in a criminal case is governed by Crim.R. 16. Pursuant to
Crim.R. 16(B), the prosecution must provide any evidentiary materials “which are material
to the preparation of a defense, or are intended for use by the prosecuting attorney as
evidence at the trial” upon written request of the defendant. If a party fails to comply with
the disclosure requirements of Crim.R. 16, the trial court has the discretion to “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).
{¶ 38} A violation of Crim.R. 16 does not necessarily amount to a due process
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violation. State v. Long, 2d Dist. Greene No. 2010-CA-47, 2011-Ohio-4293, ¶ 19 (finding
that “while the State’s failure to provide [video evidence] constituted a violation of the
discovery rules, we find no basis to conclude that [the defendant’s] constitutional rights
were violated by the State’s failures and the trial court’s subsequent orders limiting the
State’s disclosure obligations,”); Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131
L.Ed.2d 490 (1995), citing U.S. v. Bagley, 473 U.S. 667, 675 105 S.Ct. 3375, 87 L.Ed.2d
481 (1985) (“the Constitution is not violated every time the government fails or chooses
not to disclose evidence that might prove helpful to the defense.”). This court has
explained that “[t]he failure to provide copies [of video evidence in discovery] may result
in a denial of due process[,]” but that such a failure “is not a per se denial of the right to
due process; there must be evidence of some prejudice to the defendant.” (Citations
omitted.) Long at ¶ 21.
{¶ 39} The trial court’s response to an alleged discovery violation under Crim.R.
16 is reviewed for an abuse of discretion. State v. Parson, 6 Ohio St.3d 442, 445, 453
N.E.2d 689 (1983). “A trial court abuses its discretion when it makes a decision that is
unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135
Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. “An abuse of discretion includes
a situation in which a trial court did not engage in a ‘ “sound reasoning process.” ’ ” Id.,
quoting State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14,
quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio
St.3d 157, 161, 553 N.E.2d 597 (1990). “Abuse-of-discretion review is deferential and
does not permit an appellate court to simply substitute its judgment for that of the trial
court.” Id.
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{¶ 40} In this case, Wilcoxson conceded at trial that the State’s failure to provide
the video evidence in discovery was not due to a dereliction of the State’s obligation to
provide discovery. See Trans., p. 77. In addition, the record establishes that the State
did not provide the video evidence to Wilcoxson because the video evidence was either
unknown to the State and/or never in the State’s possession. The record also
establishes that Wilcoxson’s discovery request did not specifically request any of the
video evidence at issue. Accordingly, there appears to be no violation of the State’s
obligations under Crim.R. 16. While the police department’s failure to collect the video
footage from the laundromat’s security cameras may have constituted sloppy police work,
there is nothing in the record to indicate that the police’s failure to retrieve that footage
was purposeful or in bad faith.
{¶ 41} In any event, we find that Wilcoxson was not prejudiced by the lack of video
evidence in question and that the trial court did not abuse its discretion when it found that
the video evidence would not have corroborated either party’s version of the relevant
events. Although the video footage from the laundromat’s security cameras would have
showed the altercation between Wilcoxson and Wagner, the trial court correctly
determined that it was never established on the record that the video was equipped with
audio. See Trans., p. 37. Without audio, the video would have had little value, since it
was undisputed that Wilcoxson and Wagner had an altercation inside the laundromat on
the day in question and that Wilcoxson verbally threatened Wagner. Therefore, the
video would only have been helpful if it had audio, as it could have been used to determine
whether Wilcoxson threatened to cause Wagner serious, physical harm. Since it was
not established that the video was equipped with audio, the trial court reasonably relied
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on the witnesses’ testimony to determine what statements were made during the
altercation. Because it is highly unlikely that the video footage from the laundromat’s
security cameras would have aided Wilcoxson’s defense, and given that Wilcoxson
admitted to threatening Wagner, we do not find that the lack of this evidence prejudiced
Wilcoxson at trial.
{¶ 42} With regard to the video footage from Officer Paxton’s police cruiser, the
record establishes that the State never obtained that footage because the State’s case in
chief only concerned the verbal threats that Wilcoxson made to Wagner inside the
laundromat. Because the altercation between Wilcoxson and Wagner occurred prior to
the arrival of the police, the cruiser camera footage would not have aided Wilcoxson’s
defense against the aggravated menacing and menacing charges for which he was tried.
Accordingly, Wilcoxson was not prejudiced by the State’s failure to obtain the cruiser
camera footage.
{¶ 43} Similarly, any surveillance video footage taken from businesses
surrounding the laundromat would have only shown Wilcoxson’s altercation outside with
Brewer. Wilcoxson’s and Wagner’s testimony both indicate that Wilcoxson threatened
Wagner while they were inside the laundromat. Wilcoxson himself testified that Wagner
was not outside the laundromat for much of the event. Therefore, surveillance footage
taken from neighboring businesses would not have aided either party’s case with regard
to the aggravated menacing and menacing charges. Accordingly, Wilcoxson was not
prejudiced by the State’s failure to obtain that video footage either.
{¶ 44} Because Wilcoxson was not prejudiced by the lack of video evidence at
issue, we find no due process violation. The record indicates that Wilcoxson received a
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fair trial that resulted in a verdict worthy of confidence despite the absent video footage.
We also find that the trial court did not abuse its discretion when it decided to proceed
with trial, as the trial court reasonably determined that the video footage would not have
corroborated either party’s version of the relevant events.
{¶ 45} Wilcoxson’s second assignment of error is overruled.
Conclusion
{¶ 46} Having overruled both of Wilcoxson’s assignments of error, the judgment of
the trial court is affirmed.
.............
TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Stephanie L. Cook
Andrew D. Sexton
Robert Alan Brenner
Hon. Christopher D. Roberts