State v. Opp

[Cite as State v. Opp, 2014-Ohio-1138.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

SENECA COUNTY

STATE OF OHIO,

CASE NO. 13-13-33

PLAINTIFF-APPELLEE,

v.

MYNDI A. OPP,

OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court

Trial Court No. 12-CR-0261

Judgment Affirmed

Date of Decision: March 24, 2014

APPEARANCES:

James W. Fruth for Appellant

Angela M. Boes for Appellee

Case No. 13-13-33

WILLAMOWSKI, P.J.

{¶1} Defendant-appellant Myndi A. Opp brings this appeal from the

judgment of the Court of Common Pleas in Seneca County, Ohio, which entered

her conviction after a jury found her guilty of Illegal Conveyance of Drugs of

Abuse onto the Grounds of a Specified Governmental Facility, in violation of R.C.

2921.36(A)(2), (G)(2), a felony of the third degree. Opp argues that, due to

State’s failure to comply with Crim.R. 16(K), her trial was fundamentally flawed

and that the verdict must be reversed. For the reasons stated below, we affirm the

trial court’s judgment.

{¶2} The charge against Opp arose out of an event that occurred on or

about March 9, 2012, and involved “a dangerous drug” known as Ultram. (R. at 1,

Indictment, Dec. 5, 2012.) Opp’s jury trial took place on May 29, 2013. During

the trial, the State elicited the testimony of a pharmacist, Kari Wedge, who was

qualified as an expert witness regarding the interpretation and dispensing of

prescription medications. (Tr. of Proceedings, May 29, 2013, at 161-162.)

Although Opp did not have any objections to Ms. Wedge’s qualifications as an

expert, she objected to her opinion testimony under Crim.R. 16(K), which requires

that prior to testifying at trial, an expert witness shall prepare a written report

summarizing his or her “testimony, findings, analysis, conclusions, or opinion,”

and that this report “shall be subject to disclosure” to the opposing party twenty-

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one days before trial unless the deadline is modified by the court. (Id. at 163-164,

quoting Crim.R. 16(K).)

{¶3} The State had not provided Opp with a report, although it had

provided Opp with the notice of its intention to call Ms. Wedge as a witness and

with Ms. Wedge’s curriculum vitae1 in its “Continuance to Discovery” filed before

trial. (R. at 17, 20.) In response to Opp’s objection at trial, the State explained

that Ms. Wedge had not prepared a report because no chemical analysis of the

substance involved in the case was performed. (Tr. at 165-166.) The State also

argued that Opp would not be prejudiced or surprised by Ms. Wedge’s testimony

because she was on notice of the State’s intention to call her and Opp’s counsel

had a chance to talk to the witness prior to trial. (Id. at 165-168.) The State

offered that if necessary, it would limit its questioning of Ms. Wedge to the issue

of whether Ultram was a prescription-only substance, without asking Ms. Wedge

to identify the drug involved in the case. (Id. at 165, 169-170.) The trial court

allowed the witness to testify within these limitations. (Id. at 170-171.)

{¶4} Ms. Wedge testified that as a pharmacist, she was familiar with the

substance called Ultram, which was an opioid-type pain medication. (Id. at 182.)

She testified that Ultram is only available upon prescription. (Id.) In her further

testimony, Ms. Wedge stated that in order to identify Ultram a person would have

1

Opp alleges in her brief that the State “never tendered” to her “a summary of Ms. Wedge’s expert

qualifications before offering her testimony.” (Appellant’s Br. at 6.) This allegation appears to be

contradicted by the State’s “Continuance to Discovery” filed on May 22, 2013, indicating that the State was

submitting “CV of Pharmacist Kari Wedge.” (See R. at 20.)

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to look at the markings, the size, and the color of the medication, and check in the

database to find out what it is because the medication looks different depending on

the manufacturer. (Id. at 172, 174.) She did not identify the drug involved in this

case.

{¶5} Other witnesses testified as to the identity and nature of the drug

involved in this case. (Id. at 109, 115-117, 135, 158, 176-179.) Those witnesses

identified the drug as Ultram, a prescription-only medication. (Id.) Opp did not

testify at trial but a recording of her interview, taken on March 15, 2012, was

played to the jury. (Id. at 121-133.) In the interview, Opp identified the drug

found on her as Ultram, which she obtained with a valid prescription. (Id. at 122,

127-128, 133.) On appeal, there is no challenge to the recorded interview being

admitted. The defense did not present evidence. (See id. at 184-185.)

{¶6} On May 30, 2013, after a one-day jury trial, the jury rendered a

guilty verdict, and on July 9, 2013, Opp was sentenced to nine months in prison.

Opp now appeals, raising one assignment of error.

THE TRIAL COURT ABUSED ITS DISCRETION IN

PERMITTING THE STATE’S EXPERT WITNESS TO

TESTIFY DESPITE THE FAILURE OF THE STATE TO

COMPLY WITH OHIO RULE OF CRIMINAL PROCEDURE

16(K).

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{¶7} In her argument on appeal, Opp quotes Crim.R. 16(K) and asserts

that because of its mandatory language and the State’s failure to provide her with

an expert report prior to trial, the trial court was required to exclude Ms. Wedge’s

testimony. Crim.R. 16(K) states,

An expert witness for either side shall prepare a written report

summarizing the expert witness’s testimony, findings, analysis,

conclusions, or opinion, and shall include a summary of the expert’s

qualifications. The written report and summary of qualifications

shall be subject to disclosure under this rule no later than twenty-one

days prior to trial, which period may be modified by the court for

good cause shown, which does not prejudice any other party. Failure

to disclose the written report to opposing counsel shall preclude the

expert’s testimony at trial.

{¶8} Opp does not allege that she was prejudiced in any way by the lack

of the report or that the exclusion of the pharmacist’s testimony would have

changed the result of her trial. She is claiming that the trial was “fundamentally

flawed” because “the State was given a free pass and, in essence, absolute

immunity from having to follow Crim.R. 16(K).” (Appellant’s Br. at 9.) In short,

Opp’s contention on this appeal appears to be that, as a matter of law, an expert is

not allowed to testify as to any matter if a party fails to prepare and disclose a

“written report summarizing the expert witness’s testimony, findings, analysis,

conclusions, or opinion” prior to trial. See Crim.R. 16(K). She demands her

conviction be reversed.

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{¶9} We acknowledge the mandatory language of division (K) of Crim.R.

16. But we refuse to give it the broad reading proposed by Opp, which would

remove the trial court’s discretion over the discovery process with respect to

Crim.R. 16(K). We hold that although division (K) of the rule is compulsory as to

the parties, the trial court retains discretion over the sanctions for violation of this

division. This holding is consistent with decisions of other courts in Ohio.

{¶10} The Fifth District Court of Appeals considered the question of

“whether Crim.R. 16(K) abolishes the trial court’s discretion” and decided that it

does not. State v. Viera, 5th Dist. Delaware No. 11CAA020020, 2011-Ohio-5263,

¶ 18. The Viera court arrived at its decision upon the following reasoning:

Included in Crim.R. 16(K) referring to the twenty-one day rule is the

phrase “which period may be modified by the court for good cause

shown, which does not prejudice any other party.” New subsection

(L)(1) is essentially a codification of the case law favoring the trial

court’s discretion in fashioning remedies to satisfy justice:

“(L) Regulation of discovery.

“(1) 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.”

Id. at ¶¶ 19-21. The Fifth District Court of Appeals then decided that the trial

court had not erred in allowing an expert to testify in spite of the untimeliness of

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the expert’s report. Id. at ¶¶ 22-23. The appellate court expressly rejected the

defendant’s contention that “Crim.R. 16(K) obviates the trial court’s discretion to

sanction non-disclosure by any other remedy other than exclusion.” Id. at ¶ 11.

The Ohio Supreme Court denied review of this case upon appeal. State v. Viera,

131 Ohio St.3d 1459, 2012-Ohio-648, 961 N.E.2d 1137.

{¶11} The Eleventh District Court of Appeals engaged in similar reasoning

in a case where a doctor was testifying as an expert without providing a written

report as required by Crim.R. 16(K). See State v. Fetty, 11th Dist. Portage No.

2011-P-0091, 2012-Ohio-6127. Upon challenge of the trial court’s decision to

allow the doctor’s testimony, the appellate court cited to the Viera decision and

determined that “the trial court did not abuse its discretion in admitting the

testimony despite a lack of compliance with Crim.R. 16(K),” because

“[t]he purpose of the rule is to avoid unfair surprise by providing

notice to the defense and allowing the defense an opportunity to

challenge the expert’s findings, analysis, or qualifications, possibly

with the support of an adverse expert who could discredit the

opinion after carefully reviewing the written report.”

Id. at ¶ 36, quoting State v. Perry, 11th Dist. Lake No.2011-L-125, 2012-Ohio-

4888, ¶ 55. The appellate court further supported its holding by an analogy to the

civil rules:

the rationale behind the application of Crim.R. 16(K) in a case like

this is similar to the rationale behind the requirement in civil cases

where an expert report must have been produced pursuant to the

local rules before a treating physician’s opinion testimony could be

admitted. The policy behind these rules is to avoid ambush and

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thwarting of opposing counsel’s ability to effectively cross-examine

the expert.

Id. at ¶ 37. Since the purpose of the rule was not violated, and the defendant was

not ambushed or thwarted in its opportunity to effectively cross-examine the

expert, reversal was not warranted. Id. at ¶¶ 45-46.

{¶12} Likewise, the Twelfth District Court of Appeals rejected the

argument that the trial court is obligated to exclude an expert’s testimony “on the

ground that the state failed to provide [the defendant] with a copy of the [expert’s]

report and summary of her qualifications, irrespective of whether he could show

he was actually prejudiced by the state’s failure to strictly comply with the rule.”

State v. Retana, 12th Dist. Butler No. CA2011-12-225, 2012-Ohio-5608, ¶ 51.

The Retana court quoted the 2010 Staff Notes for Division (L) of Crim.R. 16,

which state that “ ‘[t]he trial court continues to retain discretion to ensure that the

provisions of the rule are followed. This discretion protects the integrity of the

criminal justice process while protecting the rights of the defendants, witnesses,

victims, and society at large.’ ” Id. at ¶ 48. The Twelfth District Court of Appeals

further cited other precedent cases dealing with an issue of discovery violations,

which held that the trial court has discretion over discovery sanctions and is

required to “impose the least severe sanction that is consistent with the purpose of

the rules of discovery.” Id. at ¶¶ 52-53, quoting Lakewood v. Papadelis, 32 Ohio

St.3d 1, 511 N.E.2d 1138 (1987), paragraph two of the syllabus, and State v.

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Joseph, 73 Ohio St.3d 450, 458, 653 N.E.2d 285 (1995) (“ ‘[p]rosecutorial

violations of Crim.R. 16 are reversible only when there is a showing that (1) the

prosecution’s failure to disclose was a willful violation of the rule, (2)

foreknowledge of the information would have benefited the accused in the

preparation of his defense, and [(3)] the accused suffered some prejudicial effect.’

”). Concluding, the appellate court held that the trial court did not abuse its

discretion by allowing an expert to testify despite the violation of Crim.R. 16(K)

because “[t]he state complied with the spirit and purpose of Crim.R. 16(K).” Id. at

¶ 54.

{¶13} This reasoning of the Twelfth District Court of Appeals was cited

with approval by the Sixth District Court of Appeals, which held that “[e]ven if a

violation of Crim.R. 16(K) occurs, the trial court still has discretion to ‘order such

party to permit the discovery or inspection, grant a continuance, or prohibit the

party from introducing into evidence the material not disclosed, or it may make

such other order as it deems just under the circumstances.’ ” State v. Swain, 6th

Dist. Erie No. E-11-087, 2013-Ohio-5900, ¶¶ 85-86, quoting Crim.R. 16(L), and

citing Retana, 2012-Ohio-5608, at ¶ 52.2

{¶14} In a case from the Fourth District Court of Appeals, State v. Willett,

4th Dist. Ross No. 11CA3260, 2012-Ohio-2186, ¶ 29, the court did not address the

issue directly, holding instead that the witness did not testify as an expert and

2

The Sixth District Court of Appeals affirmed the trial court’s decision to allow the testimony on another

basis.

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therefore, his testimony did not have to be excluded for an alleged violation of

Crim.R. 16(K). The court noted, however, that “[t]he rule would seem to afford

the trial court some discretion in fashioning a sanction here.” Id., fn. 1.

{¶15} In asking us to apply the strict literal reading to division (K) of

Crim.R. 16, Opp does not cite any Ohio cases that would go this far. She does not

advance any theory that would justify such application. Furthermore, she does not

allege that the spirit and purpose of the rule have been violated by the trial court’s

exercise of its discretion in this case. See Crim.R. 16(A):

Purpose, Scope and Reciprocity. This rule is to provide all parties

in a criminal case with the information necessary for a full and fair

adjudication of the facts, to protect the integrity of the justice system

and the rights of defendants, and to protect the well-being of

witnesses, victims, and society at large.

{¶16} We therefore continue to apply the long-established precedent,

which holds that questions regarding the admission or exclusion of evidence are

within the trial court’s discretion, State v. Sage, 31 Ohio St.3d 173, 180, 510

N.E.2d 343 (1987), and we will apply this standard to the trial court’s actions in

connection with violations of Crim.R. 16(K).

{¶17} The term abuse of discretion implies that the court’s attitude is

unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151,

157, 404 N.E.2d 144 (1980). It involves views or actions “ ‘that no conscientious

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judge, acting intelligently, could honestly have taken.’ ” State v. Hancock, 108

Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 130, quoting State ex rel.

Wilms v. Blake, 144 Ohio St. 619, 624, 60 N.E.2d 308 (1945). We do not find that

the trial court’s decision in allowing Ms. Wedge’s testimony can be described in

these terms.

{¶18} The State disclosed Ms. Wedge as a witness and provided the

address of the pharmacy in which she worked. (R. at 17.) It further provided Ms.

Wedge’s curriculum vitae in its “Continuance to Discovery,” citing Crim.R.

16(K), thus indicating its intention to call her as an expert witness. (R. at 17, 20.)

The only undisclosed matter was the fact that Ms. Wedge would testify about

Ultram being a prescription-only medication and about the methods of identifying

the drug. Ultram was the only substance involved in the case, “a dangerous drug,”

as stated in the Indictment. (R. at 1.) Therefore, Opp was not surprised or

“ambushed” by Ms. Wedge’s testimony regarding Ultram being a prescription-

only medication.

{¶19} Furthermore, Opp does not allege and we do not find that the

“foreknowledge” of the fact that Ms. Wedge was going to testify as to the nature

of Ultram as a prescription-only medication and as to the method of its

identification “would have benefited [her] in the preparation of [her] defense.”

See Joseph, 73 Ohio St.3d at 458. Opp’s counsel was afforded an opportunity to

cross-examine Ms. Wedge and no allegations are made as to ineffectiveness of this

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cross-examination due to State’s failure to provide a written expert report. (See

Tr. at 173.) Ms. Wedge did not identify the drug involved in the case, as this

identification was provided by other witnesses and by Opp herself. Finally, the

issues of the drug’s identity or its prescription-only nature were not contradicted

by any of the Defense witnesses and Opp herself admitted essentially the same

facts on the record. (Id. at 123, 127-128.) Therefore, she was not prejudiced by

the admission of Ms. Wedge’s testimony.

{¶20} Although the failure to prepare and disclose “a written report

summarizing the expert witness’s testimony” was a violation by the State, the trial

court did not err in allowing Ms. Wedge to testify on the very limited issues in the

absence of any prejudice to Opp. Moreover, even were we to hold that the trial

court erred in admitting Ms. Wedge’s testimony, we would affirm the judgment

under the harmless error doctrine.

When performing harmless error analysis, an error is deemed

harmless if it did not affect the defendant’s “substantial rights.”

Crim.R. 52(A). An error does not affect substantial rights if “there is

no reasonable probability that the error contributed to the outcome of

the trial.”

State v. Smith, 3d Dist. Logan No. 8-12-05, 2013-Ohio-746, ¶ 20, quoting State v.

Thomas, 3d Dist. Allen Nos. 1-11-25, 1-11-26, 2012-Ohio-5577, ¶ 40, and citing

State v. Brown, 65 Ohio St.3d 483, 485 (1992). There is no allegation that the

inclusion of Ms. Wedge’s testimony regarding Ultram being a prescription-only

medication and regarding methods of identification for Ultram caused any

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prejudice to Opp. The same testimony was also provided by other witnesses,

including Opp herself. No witnesses were called to testify to the contrary.

Accordingly, there is no reasonable probability that the error, if any, contributed to

the outcome of the trial.

{¶21} For the foregoing reasons, Opp’s sole assignment of error is

overruled. Having found no error prejudicial to Appellant, in the particulars

assigned and argued, we affirm the judgment of the Court of Common Pleas in

Seneca County, Ohio.

Judgment Affirmed

SHAW, J., concurs.

Rogers J., Concurring Separately.

{¶22} I concur with the result reached by the majority in this case. I

concur in judgment only, and write separately, because some of the cases cited by

the majority concern issues of discovery in civil cases. I think it is dangerous to

equate issues of money judgments in civil cases with issues of personal liberty in

criminal cases. Further, I am of the opinion that the rule of strict interpretation of

criminal statutes against the state, and liberally in favor of the accused, should also

apply to interpretation of the Ohio Rules of Criminal Procedure.

{¶23} Finally, it should be noted that the State could well have complied

with Crim.R. 16(K) in this case by supplying a one sentence summary of what

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testimony was expected from this witness. The State’s failure to do so in this case

gives the appearance of apathy and/or disregard for the criminal justice system.

/hlo

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