[Cite as State v. Hamrick, 2024-Ohio-1364.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112826
v. :
PAUL HAMRICK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 11, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-673374-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Dominic Neville, Assistant Prosecuting
Attorney, for appellee.
Wegman Hessler Valore and Matthew O. Williams, for
appellant.
MARY J. BOYLE, J.:
Defendant-appellant, Paul Hamrick (“Hamrick”), appeals his
convictions for menacing by stalking and violating a protection order. For the
reasons set forth below, we affirm Hamrick’s convictions.
I. Facts and Procedural History
In September 2022, Hamrick was charged in a four-count
indictment. Count 1 charged him with menacing by stalking. Count 2 charged him
with telecommunications harassment. Count 3 charged him with violating a
protection order. Count 4 charged him with aggravated menacing. These charges
arise from allegations which follow the end of a romantic relationship between
Hamrick and the victim, H.C., Hamrick continued to send messages to H.C.,
followed her in his van, and appeared at her house.
In May 2023, the matter proceeded to a jury trial, at which the
following evidence was adduced. The state called four witnesses.
H.C. testified that Hamrick moved in with her in December 2021, and
that the couple continued to date until April 2022. While they lived together,
Hamrick assisted with various repairs throughout the home. They began to have
issues in their relationship towards the end of March 2022. For example, H.C.
recalled an instance of Hamrick punching a hole in a door after H.C.’s teenaged
nephew ate his leftovers. According to H.C., she ended their relationship on April 17,
2022, due to Hamrick’s anger issues and his lack of respect for her family.
After their relationship ended, Hamrick continued to call H.C. on her
cell phone and at work. H.C. testified that “Hamrick was very angry with me and
would call me every day to let me know that I was to pay him for all of the things that
he helped me do in my house, or I was going to pay the price.” (Tr. 202.) H.C. further
testified that Hamrick showed up to her home on multiple occasions after the
breakup. In one of these instances, he followed her home and in another he used his
van to block her in the driveway. H.C. testified that she was in “fear for [her] life”
because she “[did not] feel safe if [she had] to keep telling somebody twice the size
of [her] to back off[.]” (Tr. 225.)
H.C. testified that she and Hamrick used a variety of electronic
messaging applications during their relationship and in their communications
thereafter, including text messaging, Instagram, and Duo. As the state sought to
admit these messages into evidence, Hamrick raised “a continuing objection to the
admissibility of these records,” which the trial court overruled. (Tr. 252.) The
defense’s main point of contention rested with the state’s exhibit no. 1, which H.C.
identified as texts and Duo messages from Hamrick. (Tr. 206.) H.C. acknowledged
that the Duo messages did not have any identifying information on their face but
testified that she knew these messages were from Hamrick because “[Hamrick] was
the only one I Duo messaged,” and because of the way he spoke in their
conversations:
His phone numbers, his Duo, the way he talks, the way he does every
message, it’s the same thing. There’s never a change-up. It is the same
— how he presents his self, how he words his words, his text messages,
his sentences. Just — when you’re around somebody so long, you pick
up on that constant — the things that they do. That is how he is.
(Tr. 206, 210.) H.C. testified that one of the Duo messages from Hamrick stated,
“My fault? You take it out on me. It was what they did. They caused my reaction, not
something I did. So please, [H.C.], you want to tell me why the hell you think I’m the
one at fault that you can justify cheating on me and leaving and lying to me.” (Tr.
210.) H.C. testified that another Duo message from Hamrick stated he would sue
her for defamation if she went to the police and reported him. H.C. stated that this
gave her a panic attack. She testified that because of Hamrick’s behavior, she applied
for a protection order on July 7, 2022, which was served on Hamrick on July 8,
2022.
H.C. further testified that Hamrick continued to message her and
appear at her house after the protection order was granted. On July 20, 2022,
Hamrick sent an Instagram message to H.C. stating, “Happy birthday.” (Tr. 230.)
Then, on August 2, 2022, Hamrick followed H.C. while she was driving home. H.C.
noticed Hamrick’s van following her on the highway, and he proceeded to drive
behind her until she reached her house. The next day, H.C. testified that Hamrick
attempted to block H.C. in her driveway as she was leaving her house. Then on
August 5, 2022, Lee Lawler (“Lee”), who was H.C.’s boyfriend at the time, testified
that he was sitting on H.C.’s front porch when he observed Hamrick’s van stop
across the street. Lee testified that Hamrick then got out of the vehicle “flip[ped]
[him] off [and] call[ed] [him] out.” (Tr. 367.) Surveillance video from H.C.’s house
corroborates Lee’s testimony and was played for the jury. In the video, a van can be
seen abruptly stopping in the street before Hamrick gets out, starts to approach
H.C.’s house, and puts up his middle finger.
H.C. testified that she felt tortured and was in fear for her life because
of Hamrick’s continuous messaging, him following her home, and appearing at her
house. (Tr. 246-47.) She testified that these interactions along with the size
difference between the pair and his anger issues added to her fear for her life. (Tr.
225.)
During trial, the parties learned through H.C.’s testimony that there
was surveillance video evidence depicting two incidents of Hamrick appearing at
H.C.’s house on August 2, 2022, and August 3, 2022. Hamrick moved for a mistrial,
arguing that his lack of access to these videos prior to trial constituted a discovery
violation. The state, having just learned of the full surveillance videos itself, did not
attempt to introduce the videos into evidence. The trial court excluded the videos
from evidence and denied the motion for mistrial.
Hamrick presented evidence from the police’s investigation into the
phone numbers provided by H.C. One of the phone numbers H.C. provided the
police was associated with another individual, not Hamrick. However, no evidence
was admitted contradicting H.C.’s assertion that the Duo messages and other
messages were from Hamrick. The parties both rested.
Following the conclusion of trial, the jury found Hamrick guilty of
menacing by stalking and violating a protection order, and not guilty of
telecommunications harassment and aggravating menacing. The court sentenced
Hamrick to one and a half years of community-control sanction on each count along
with four weekends in jail.
Hamrick now appeals, raising four assignments of error for review,
which will be addressed out of order for ease of discussion.
Assignment of Error I: The trial court erred to [Hamrick’s]
prejudice when it denied [Hamrick’s] Crim. R. 29 Motion for acquittal
where [Hamrick’s] conviction for menacing by stalking was not
supported by sufficient evidence.
Assignment of Error II: [Hamrick’s] convictions are against the
manifest weight of the evidence.
Assignment of Error III: The trial court erred in allowing the state
to introduce into evidence alleged text messages.
Assignment of Error IV: The trial court erred in denying
Appellant’s motion for a mistrial where the Government failed to
comply with discovery rules.
II. Law and Analysis
A. Sufficiency of the Evidence
In the first assignment of error, Hamrick argues that trial court erred
when it denied his Crim.R. 29(A) motion because the evidence was insufficient to
establish the elements for menacing by stalking. Specifically, he argues that the state
failed to establish the “knowingly” element of menacing by stalking.
We note that “[a] motion for acquittal under Crim.R. 29(A) is
governed by the same standard as the one for determining whether a verdict is
supported by sufficient evidence.” State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-
2417, 847 N.E.2d 386, ¶ 37, citing State v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d
965 (1995); State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
The test for sufficiency requires a determination of whether the prosecution met its
burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 12. An appellate court’s function when reviewing sufficiency is
to determine “‘whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph two of the syllabus.
With a sufficiency inquiry, an appellate court does not review whether
the state’s evidence is to be believed but whether, if believed, the evidence admitted
at trial supported the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682,
2009-Ohio-3375, ¶ 25, citing Thompkins at 387. A sufficiency of the evidence
argument is not a factual determination, but a question of law. Thompkins at 386.
In State v. Jones, 166 Ohio St.3d 85, 2021-Ohio-3311, 182 N.E.3d
1161, the Ohio Supreme Court cautioned:
But it is worth remembering what is not part of the court’s role when
conducting a sufficiency review. It falls to the trier of fact to ‘“resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.’” [State v.
McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316,
¶ 24], quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). Thus, an appellate court’s role is limited. It does
not ask whether the evidence should be believed or assess the
evidence’s “credibility or effect in inducing belief.” State v. Richardson,
150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13, citing
Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541. Instead, it asks
whether the evidence against a defendant, if believed, supports the
conviction. Thompkins at 390 (Cook, J., concurring).
Id. at ¶ 16.
Here, Hamrick challenges his menacing by stalking under
R.C. 2903.211(A)(1), which provides:
No person by engaging in a pattern of conduct shall knowingly cause
another person to believe that the offender will cause physical harm to
the other person or a family or household member of the other person
or cause mental distress to the other person or a family or household
member of the other person.
“Knowingly” is defined by R.C. 2901.22(B) as:
[T]he person is aware that the person’s conduct will probably cause a
certain result or will probably be of a certain nature. A person has
knowledge of circumstances when the person is aware that such
circumstances probably exist. When knowledge of the existence of a
particular fact is an element of an offense, such knowledge is
established if a person subjectively believes that there is a high
probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
Additionally, “mental distress” is defined in R.C. 2903.211(D)(2) as:
(a) Any mental illness or condition that involves some temporary
substantial incapacity;
(b) Any mental illness or condition that would normally require
psychiatric treatment, psychological treatment, or other mental
health services, whether or not any person requested or received
psychiatric treatment, psychological treatment, or other mental
health services.
Hamrick argues the state failed to establish that he knowingly placed
H.C. in fear of her physical safety or caused her mental distress. Hamrick denies ever
threatening H.C. and he specifically disclaimed violence. In support of his
argument, Hamrick refers to the following message to H.C.: “I promise you think
you hate me now, wait until I’m done. And no this is not a threat this [is] a choice
for you to make. I will not physically harm anyone is that clear this is not a threat.”
Hamrick, however, cannot disclaim that his words and actions were not threats and
then continue to act in a way that H.C. testified instilled fear into her daily life.
A review of the record reveals that Hamrick continued to call and
message H.C. on her cell phone and at work. H.C. testified that “Hamrick was very
angry with me and would call me every day to let me know that I was to pay him for
all of the things that he helped me do in my house, or I was going to pay the price.”
(Tr. 202.) Hamrick also showed up to her home on multiple occasions after the
breakup. In one of these instances, he followed her home and in another he used his
van to block her in the driveway. H.C. testified that she was in “fear for [her] life” in
these repeated interactions because she “[didn’t] feel safe if [she had] to keep telling
somebody twice the size of [her] to back off[.]” (Tr. 225.) Further, H.C. testified that
she applied for this protection order because she was “scared to open [her] door
because [she] didn’t know if Mr. Hamrick was going to be on [her] street or in [her]
driveway or hanging out and lurking for [her] in certain spots.” (Tr. 223.)
As a result of this fear for her life and its impact on her mental state,
H.C. obtained a protection order, which was personally served on Hamrick on July
8, 2022, and prohibited him from engaging in certain acts. Specifically, Hamrick
was ordered that he shall not “abuse, harm, attempt to harm, threaten, follow, stalk,
harass, force sexual relations upon, or commit sexually oriented offenses against the
protected persons named in this Order.” Additionally, the following provisions
applied to Hamrick:
1. Respondent shall not enter or interfere with the residence, school
business, place of employment, day care centers, or child care providers
of the protected persons named in this Order, including the buildings,
grounds, and parking lots at those locations. Respondent may not
violate this Order even with the permission of a protected person.
2. Respondent shall not interfere with protected persons’ right to occupy
the resident including, but not limited to canceling utilities or
insurance or interrupting telecommunication (e.g., telephone, internet,
or cable) services, mail delivery, or the delivery of any documents or
items.
***
4. Respondent shall stay away from Petitioner and all other protected
persons named in this Order, and not be present within 500 feet
(distance) of any protected persons wherever those protected persons
may be found, or any place Respondent knows or should know the
protected persons are likely to be, even with a protected person’s
permission. If respondent accidentally comes in contact with protected
persons in any public or private place, Respondent must depart
immediately. This Order includes encounters on public and private
roads, highways, and thoroughfares.
5. Respondent shall not remove, damage, hide, or dispose of any
property, companion animals, or pets owned by the protected persons
named in this Order.
***
7. Respondent shall not initiate or have any contact with the protected
persons named in this Order or their residences, businesses, places of
employment, schools, day care centers, or child care providers. Contact
includes, but is not limited to, landline, cordless, cellular or digital
telephone; text; instant messaging; fax; e-mail; voicemail; delivery
service; social media; blogging; writings; electronic communications;
posting a message; or communications by any other means directly or
through another person. Respondent may not violate this Order even
with the permission of a protected person.
8. Respondent shall not use any form of electronic surveillance on
protected person.
9. Respondent shall not cause or encourage any person to do any act
prohibited by this Order.
10. Respondent shall not possess, use, or obtain any deadly weapon at any
time while the Order remains in effect for the safety and protection of
the protected persons named in this Order. Furthermore, Respondent
may be subject to firearms and ammunition restrictions pursuant to 18
U.S.C. 922(g)(1) through (9), 18 U.S.C. 922(n), or R.C. 2923.13.
Respondent is expected only for official use pursuant to 18 U.S.C.
925(a)(1), if no other firearms and ammunition prohibitions apply.
11. Respondent shall turn over all deadly weapons owned by Respondent
or in Respondent’s possession to the law enforcement agency that
serves Respondent with this Order no later than 3 days.
Despite this order, H.C. testified that Hamrick continued to contact
her, followed her home, and appeared at her house. H.C. described her mental state
after Hamrick continued to disobey the protection order put in place as feeling
“tortured” and that “he’s scaring [her] enough where [she] feel[s] like [she’s]
threatened [and] in fear for what [she has] to put up with.” (Tr. 246-248.) This
evidence, when viewed in a light most favorable to the state, establishes that
Hamrick’s menacing by stalking conviction was supported by sufficient evidence.
Therefore, the first assignment of error is overruled.
B. Admissibility of Duo App Messages
In the third assignment of error, Hamrick argues that court erred in
allowing the state to introduce into evidence Duo App messages that H.C. created
herself. As a result, he contends that his convictions should be overturned and a
new trial ordered.
The admission or exclusion of evidence rests within the sound
discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343
(1987). An abuse of discretion occurs when a court exercises “its judgment, in an
unwarranted way, in regard to a matter over which it has discretionary authority.”
Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
Evid.R. 901 governs the authentication of demonstrative evidence
such as recordings of telephone conversations and text messages. To satisfy the
evidence authentication or identification requirement, the proponent must
“produce evidence sufficient to support a finding that the item is what the proponent
claims it is.” Evid.R. 901(A). Thus, text messages must be properly authenticated
before they may be admitted. State v. Irwin, 2d Dist. Montgomery No. 26224, 2015-
Ohio-195, at ¶ 20. The threshold standard for authenticating evidence is low. State
v. Carter, 8th Dist. Cuyahoga No. 104874, 2018-Ohio-2238, ¶ 39, quoting State v.
Glenn 8th Dist. Cuyahoga No. 97314, 2012-Ohio-3075, ¶ 25. Evid.R. 901(B) provides
examples of numerous ways that the authentication requirement may be satisfied,
the most common of which is testimony that a matter is what it is claimed to be.
State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, ¶ 30. “[T]he
proponent must present foundational evidence that is sufficient to constitute a
rational basis for a jury to decide that the primary evidence is what its proponent
claims it to be.” State v. Payton, 4th Dist. Ross No. 01CA2606, 2002-Ohio-508. A
proponent may demonstrate genuineness or authenticity through direct or
circumstantial evidence. State v. Williams, 64 Ohio App.2d 271, 274, 413 N.E.2d
1212 (8th Dist.1979).
Nevertheless, “‘[i]n most cases involving electronic print media, i.e.,
texts, instant messaging, and e-mails, the photographs taken of the print media or
the printouts of those conversations are authenticated, introduced, and received
into evidence through the testimony of the recipient of the messages.’” Irwin at ¶ 21,
quoting State v. Roseberry, 197 Ohio App.3d 256, 2011-Ohio-5921, 967 N.E.2d 233,
at ¶ 75 (8th Dist.). In Roseberry, we noted the state could have properly admitted
text messages from the defendant through the victim’s testimony, “because she was
the recipient of the text messages, had personal knowledge of the content, and could
[identify] the sender of the messages.” Roseberry at ¶ 75.
Duo is a messaging app created by Google which allows users to send
voice, video, and text messages. Hamrick argues that the authenticated Duo
messages were inadmissible as evidence because of the presentation of the
messages. Specifically, exhibit No. 1 was admitted into evidence as messages in
white text on a black background. He argues that this exhibit cannot be
authenticated as his messages because they were not admitted as screenshots of the
messages from a messaging platform. However, Hamrick did not put forth evidence
that he was not the person who sent these Duo messages.
The state argues that the messages were properly authenticated in
accordance with Evid.R. 901(A) because each message was properly introduced
through the common practice of eliciting the witness’s H.C.’s testimony. Moreover,
H.C. testified that exhibit No. 1 is comprised of screenshots that she personally took
of the messages and that exhibit No. 1 fairly and accurately depicts the messages
Hamrick sent to her. (Tr. 209.) We find the state’s argument more persuasive.
As stated above, the threshold for admission of such evidence is quite
low and is met when the proponent submits “evidence sufficient to support a finding
that the matter in question is what its proponent claims.” Evid.R. 901(A). The state
met this threshold in this case. H.C. authenticated the messages from Hamrick by
testifying that the messages proffered as evidence were indeed sent to her from
Hamrick. She testified that she knew messages at issue were from Hamrick because
she only used the Duo messaging platform with Hamrick and the way he spoke in
the messages made it clear that the messages were from him. Additionally, as in
Roseberry, H.C. knew the messages were from Hamrick because she was the
recipient of the messages and had personal knowledge about the content of the
messages. Roseberry at ¶ 75.
Therefore, the third assignment of error is overruled.
C. Manifest Weight of the Evidence
In the second assignment of error, Hamrick argues that his
convictions are against the manifest weight of the evidence.
When reviewing a manifest weight challenge, an appellate court,
“‘weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the jury
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. Virostek, 8th Dist.
Cuyahoga No. 110592, 2022-Ohio-1397, ¶ 54, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A reversal on the basis that a verdict
is against the manifest weight of the evidence is granted “‘only in the exceptional
case in which the evidence weighs heavily against the conviction.’” Thompkins, 78
Ohio St.3d at 387, 678 N.E.2d 541 (1997), quoting Martin at 175.
As this court has previously stated:
The criminal manifest weight-of-the-evidence standard addresses the
evidence’s effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382,
2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins, 78 Ohio
St.3d at 386, 678 N.E.2d 541 (1997). Under the manifest weight-of-the-
evidence standard, a reviewing court must ask the following question:
whose evidence is more persuasive — the state’s or the defendant’s?
Wilson at id. Although there may be legally sufficient evidence to
support a judgment, it may nevertheless be against the manifest weight
of the evidence. Thompkins at 387; State v. Johnson, 88 Ohio St.3d 95,
2000-Ohio-276, 723 N.E.2d 1054 (2000).
When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the manifest weight of the evidence, the
appellate court sits as a “thirteenth juror” and disagrees with the fact
finder’s resolution of the conflicting testimony. Wilson at id., quoting
Thompkins at id.
State v. Williams, 8th Dist. Cuyahoga No. 108275, 2020-Ohio-269, ¶ 86-87.
Hamrick contends that the jury lost its way after being allowed to
review state’s exhibit No. 1, which consisted of various messages from Hamrick to
H.C. that he contends are inadmissible. Hamrick attacks the credibility of this
evidence due to the lack of identifying features on the face of the exhibit. After
reviewing the entire record, weighing the inferences, and examining the credibility
of witnesses, however, we cannot say that the jury clearly lost its way and created a
manifest miscarriage of justice by relying on the Duo messages.
We found exhibit No. 1, the Duo messages, were admissible and
Hamrick had the opportunity to cross-examine H.C. on the authenticity of the
messages. Hamrick’s actions of messaging H.C. and appearing at her house in
violation of H.C.’s protection order provided sufficient evidence to sustain his
convictions of menacing by stalking and violation of protection order. Hamrick’s
convictions are not against the manifest weight of the evidence.
Accordingly, the second assignment of error is overruled.
D. Motion for Mistrial
In the fourth assignment of error, Hamrick argues that the trial court
erred in denying his motion for a mistrial because the state did not comply with
discovery rules. Specifically, Hamrick argues that when the police failed to turn over
two videos from August 2, 2022, and August 3, 2022, prior to trial, his defense
strategy was compromised because he made strategic trial decisions upon the belief
that the videos did not exist. He argues that since these videos were not turned over
to the defense prior to trial, a mistrial was warranted.
Trial courts enjoy broad discretion in ruling on motions for mistrial.
State v. Johnson, 8th Dist. Cuyahoga No. 108621, 2020-Ohio-2940, ¶ 23. Absent an
abuse of discretion, a reviewing court will not reverse a trial court’s decision
regarding a motion for a mistrial. Id., citing State v. Benson, 8th Dist. Cuyahoga
No. 87655, 2007-Ohio-830, ¶ 136. “A mistrial should not be ordered in a criminal
case ‘merely because some error or irregularity has occurred, unless the substantial
rights of the accused or the prosecution are adversely affected.’” Johnson at ¶ 24,
quoting State v. Wilson, 8th Dist. Cuyahoga No. 92148, 2010-Ohio-550, ¶ 13, citing
State v. Reynolds, 49 Ohio App.3d 27, 33, 550 N.E.2d 490 (2d Dist.1988). The
essential inquiry on a motion for mistrial is whether the substantial rights of the
accused are adversely or materially affected. Id.
Here, defense counsel moved for a mistrial based upon the state’s
failure to disclose evidence in violation of discovery rules. The purpose of the
Crim.R. 16 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.” The rule serves to “‘prevent surprise and the secreting
of evidence favorable to one party.’” State v. Wainwright, 8th Dist. Cuyahoga
No. 111725, 2023-Ohio-2292, ¶38, quoting State v. Johnson, 8th Dist. Cuyahoga
No. 108621, 2020-Ohio-2940, ¶ 26.
We note, however, that “[a] mistrial is not mandated where a
discovery violation occurs.” Johnson at ¶ 27, citing State v. Muszynec, 8th Dist.
Cuyahoga No. 87447, 2006-Ohio-5444, ¶ 16. When imposing a sanction for a
discovery violation, “‘trial courts must conduct an inquiry into the surrounding
circumstances and ‘impose the least severe sanction that is consistent with the
purpose of the rules of discovery.’” Id., quoting State v. Rucker, 2018-Ohio-1832,
113 N.E.3d 81, ¶ 20 (8th Dist.), quoting Papadelis at paragraph two of the syllabus.
The Ohio Supreme Court has held that this inquiry should include three
considerations: “(1) whether the [prosecution’s] failure to disclose was a willful
violation of Crim.R. 16, (2) whether foreknowledge of the undisclosed material
would have benefited the accused in the preparation of a defense, and (3) whether
the accused was prejudiced.” State v. Darmond, 135 Ohio St. 3d 343, 351, citing
State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983).
Applying the Parson factors, first we must determine whether the
state’s failure to disclose the videos was a willful violation of Crim.R. 16. Hamrick’s
counsel argues that their defense strategy may have been different if they had these
videos prior to trial. Notably, the state did not have knowledge about the existence
of these videos until testimony was elicited at trial. (Tr. 344.) As a result, the state
did not attempt to introduce these videos into evidence. (Tr. 347-348.) The state
further provided the following: “It’s not an exculpatory video, it’s inculpatory. If the
defense feels that it is, the State of Ohio has no objection with it coming in, because
it’s not exculpatory, it would help the State of Ohio’s case.” (Tr. 345.) Upon a review
of the record, we cannot say that the failure to disclose these two videos was a willful
violation of Crim.R. 16.
As to the second Parson factor, we consider whether foreknowledge
of the undisclosed material would have benefited the accused in the preparation of
a defense. Parson, 6 Ohio St.3d 442, at syllabus. Hamrick’s counsel makes no
argument that the videos at issue are exculpatory. As the state explained, the videos
themselves are inculpatory and in fact would have strengthened the state’s case. The
video allegedly depicts the above-described incident from August 2, 2022, when a
white van follows H.C. and her friend home, the friend gets out of the car, goes up
to the white van, and the van subsequently speeds off. (Tr. 344.) H.C. testified that
the driver of this vehicle that followed her home on August 2, 2022, was Hamrick.
(Tr. 294.) Therefore, the undisclosed videos would have likely harmed the accused
had they been admitted at trial.
Finally, with respect to the third Parson factor, we consider whether
Hamrick was prejudiced. Parson, 6 Ohio St.3d 442, at syllabus. We reiterate the
inculpatory nature of these videos when determining whether there was a discovery
violation in this case. In considering whether a defendant was prejudiced, courts
often consider the balance of the evidence, notwithstanding the claimed discovery
violation. State v. Lopez, 6th Dist. Lucas No. L-06-1243, 2007-Ohio-5473, ¶ 24. A
reviewing court may overlook an error where the admissible evidence comprises
“overwhelming” proof of a defendant’s guilt. State v. Mills, 8th Dist. Cuyahoga
No. 90383, 2008-Ohio-3666, ¶ 20, citing State v. Williams, 6 Ohio St.3d 281, 290,
452 N.E.2d 1323 (1983).
The state presented exhibit No. 4, which was a surveillance video at
H.C.’s house depicting Hamrick at H.C.’s house on August 4, 2022. The additional
two videos at issue here, according to H.C.’s testimony, depict Hamrick appearing
at her house on August 2 and August 3 as well. The state did not attempt to introduce
these videos because prior to H.C.’s testimony at trial, the state was unaware that
the police were in possession of these videos. The state and Hamrick watched these
videos for the first time together, and the state did not attempt to introduce them
into evidence as they were aware that such a request would be untimely.
For the foregoing reasons, we find that the trial court did not abuse
its discretion by denying Hamrick’s request for a mistrial. The trial court correctly
issued the least restrictive sanction for the violation, which was to prohibit the state
from introducing the video.
Therefore, Hamrick’s fourth assignment of error is overruled.
III. Conclusion
The court properly denied Hamrick’s Crim.R. 29 motion for acquittal
because his menacing by stalking conviction was supported by sufficient evidence.
Furthermore, his convictions of menacing by stalking and violation of protection
order were not against the manifest weight of the evidence. The Duo messages at
issue were admissible because they were properly authenticated by H.C. under
Evid.R. 901(A). Finally, the court did not abuse its discretion in denying Hamrick’s
motion for a mistrial because the state did not willfully fail to turn over evidence in
discovery.
Accordingly, the judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution. The defendant’s conviction having been affirmed, any bail pending
appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________
MARY J. BOYLE, JUDGE
EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR