dissenting. I respectfully dissent. Crim. R. 16 only requires the state to provide “[relevant written or recorded statements made by the defendant or co-defendant * * (Emphasis added.) The July 10 tape does not refer in any manner to the events surrounding the three drug trafficking charges against the defendant, nor does the tape contain any exculpatory material. The state did not use the tape in its case in chief; and, indeed, it was clearly inadmissible.
On direct examination defendant admitted knowing and 'talking with undercover agent Shanks during June 1985, the period of time when the three trafficking crimes allegedly occurred. Nevertheless, the following exchange took place on cross-examination without objection by defense counsel:
“Q: Did you ever have an occasion, specifically July the 10th of 1985, when Joe Shanks was down at you [sic] office — down at your house, to state to him that you would be willing to get him another half ounce of cocaine. It would be a thousand dollars, but there wasn’t any way that you were going to let him meet with your supplier?
“A: What was the date you said?
“Q: Around July 10th.
“A: July 10th? No, Sir, I never talked to Joe Shanks on July 10th.”
If defendant had truthfully admitted to talking with Shanks on July 10, any further inquiry regarding the substance of that conversation would have been improper. Consequently, if any part of the conversation had been put before the jury, it would have been subject to a motion to strike since the July 10 conversation had nothing to do with the crimes at issue.
Defendant’s lie on the point at issue engendered the following ques*69tions, again without any objection from defense counsel:
“Q: Did you ever talk to him at any time in July, saying to him, in effect, I’ll sell you the half ounce, but I won’t take you to my supplier.
“A: No, Sir, I did not.
“Q: Did you ever have any conversation with Joe Shanks around that time when you said, ‘If I find out you’re a cop, I’ll kill you?’
“A: No, Sir, I did not.
“[Q]: * * * No further questions.”
The state correctly argues that it has no duty to anticipate that a defendant will commit perjury when it determines whether a statement may have some impeachment value. In United States v. Gleason (C.A. 2, 1979), 616 F. 2d 2, certiorari denied (1980), 444 U.S. 1082, the government was allowed to use a ten-year-old letter written by the defendant to impeach the defendant’s truthfulness on cross-examination. The government had not produced the letter in response to defendant's Fed. R. Crim. P. 16 discovery request because the letter had not been deemed relevant by the government. The court stated:
“The Government is not obligated by Rule 16(a) to anticipate every possible defense, assume what the defendant’s trial testimony (if he decides to testify) will be, and then furnish him with otherwise irrelevant material that might conflict with his testimony.” Id. at 25.
The problem with Crim. R. 16 is that the state can easily assess what is relevant to its case, but it cannot so easily ascertain what may be relevant if and when the defendant goes forth with his testimony. However, since the defendant was a party to the recorded statement, he certainly should have been aware of its contents. Production of the recorded statement apprises defendant that the state is also aware of the contents. In a perfect world perhaps we should assume that all recorded statements of a defendant are relevant regardless of the content thereof. But the common law most certainly does not place this burden on the state, nor does the language of the rule. See Annotation, Right of Accused in State Courts to Inspection or Disclosure of Tape Recording of His Own Statements (1981), 10 A.L.R. 4th 1092; Annotation, Exclusion of Evidence in State Criminal Action for Failure of Prosecution to Comply with Discovery Requirements as to Statements made by Defendants or Other Nonexpert Witnesses — Modern Cases (1984), 33 A.L.R. 4th 301.
However, even if there is a violation of Rule 16, “the trial court is vested with a certain amount of discretion in determining the sanction to be imposed * * *. The court is not bound to exclude such material at trial although it may do so at its option.” State v. Parson (1983), 6 Ohio St. 3d 442, 445, 6 OBR 485, 487, 453 N.E. 2d 689, 691. We must, therefore, affirm the trial court’s decision to admit the July 10 tape recording unless it was an abuse of discretion to do so. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court’s attitude was unreasonable, arbitrary, or unconscionable.” State v. Apanovitch (1987), 33 Ohio St. 3d 19, 22, 514 N.E. 2d 394, 398 (citing State v. Adams [1980], 62 Ohio St. 2d 151, 157, 16 O.O. 3d 169, 173, 404 N.E. 2d 144, 149). Furthermore, “reversal of a conviction is warranted upon a showing of nonconstitutional error [for violation of Fed. R. Crim. P. 16] only if it is more probable than not that the error materially affected the verdict.” United States v. Bailleaux (C.A. 9, 1982), 685 F. 2d 1105, 1115 (refusing to reverse conviction because of a Rule 16 violation) (citing United States v. Valle-Valdez *70[C.A. 9, 1977], 554 F. 2d 911, 916, and United States v. Walker [C.A. 9, 1976], 538 F. 2d 266, 268-269).
In this case, the court and counsel had a discussion off the record just prior to the introduction of the tape and Detective Eversole’s testimony concerning the conversation of July 10. Accordingly, we do not have any indication of what alternative sanctions for violation of Rule 16 were discussed, if any. The record reveals only that after the rebuttal witness testified and the state moved to admit State’s Exhibit No. 10, the court invited defense counsel’s objection. Defense counsel then made a motion for a mistrial which was overruled.
This court in State v. Howard (1978), 56 Ohio St. 2d 328, 10 O.O. 3d 448, 383 N.E. 2d 912, held that it was not reversible error when the trial court allowed, over objection, rebuttal testimony from a prosecution witness whose name had not been provided to the defendant as required by Rule 16. In Howard, the defendant on cross-examination had denied seeing his co-defendant for several weeks around the time of the murder-robbery for which defendant was being tried. The co-defendant was tried separately. The surprise rebuttal witness was the owner of a store which was robbed by the two co-defendants the day before the crime at issue in Howard.
Just as in Howard, the only purpose for admitting the July 10 tape and the rebuttal testimony of Eversole was to impeach Moore’s credibility on cross-examination. Since the state had turned over other tape recordings, the defendant obviously was aware prior to trial that conversations between him and Shanks were recorded, and that Shanks and Eversole were potential witnesses.
The majority has granted the defendant a new trial because it reads the record as revealing that the prosecutor’s withholding of discovery was wilful. I think the focus should be the blatant perjury of the defendant. Even so, given the language of the rule, the contents of the tape, and the failure of this court to rule that all statements of the defendant are relevant and are to be produced, I do not find the measure of prosecutorial misconduct which this court has defined as “conduct [which] deprives the defendant of a fair trial.” State v. Maurer (1984), 15 Ohio St. 3d 239, 266, 15 OBR 379, 402, 473 N.E. 2d 768, 793.
Undoubtedly, the defendant was prejudiced to the extent that his truthfulness on cross-examination was impeached. However, this court found no abuse of discretion in the admission of rebuttal testimony in Howard, supra, or in State v. Maupin (1975), 42 Ohio St. 2d 473, 71 O.O. 2d 485, 330 N.E. 2d 708, to impeach the testimony of a defendant. In Maupin, this'court stated: “As the United States Supreme Court observed in Harris v. New York (1971), 401 U.S. 222, a criminal defendant is privileged to testify in his own behalf or refuse to do so. If he takes the stand he is under an obligation to speak truthfully and accurately. We hold that the rebuttal at least was properly admitted as bearing on appellant’s credibility.” (Emphasis sic.) Id. at 480-481, 71 O.O. 2d at 489, 330 N.E. 2d at 714. In Harris, the Supreme Court held that evidence which is inadmissible in the prosecutor’s case-in-chief is admissible for purposes of impeachment of a defendant upon rebuttal.
The facts of this case make inappropriate a reasonable claim of “ambush” by the prosecutor. Trial courts must be free to look at all the circumstances of a case and defendants should not be allowed to use the Criminal Rules as a shield for perjury. The *71July 10 tape obviously did not constitute an indispensible part of the prosecution’s case, and it served only to expose the defendant as a liar. The judge’s action in admitting the tape was not unreasonable, arbitrary or unconscionable. Given the quality and quantity of the other evidence admitted, it is more probable than not that the error, if any, did not materially affect the verdict. Accordingly, I would affirm the court of appeals’ ruling that the admittance of the tape and the rebuttal testimony was not an abuse of discretion.
Locher and Holmes, JJ., concur in the foregoing dissenting opinion.