State v. Snyder

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[Cite as State v. Snyder, 2002-Ohio-2165.] IN THE COURT OF APPEALS FOR DARKE COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee vs. : : C.A. CASE NO. 01CA1554 T.C. CASE NO. 01CR12334 JOHN CHRISTOPHER SNYDER : Defendant-Appellant : . . . . . . . . . O P I N I O N Rendered on the 3rd day of May , 2002. . . . . . . . . . Richard M. Howell, Pros. Attorney, Courthouse, Greenville, Ohio 45331, Atty. Reg. No. 0002550 Attorney for Plaintiff-Appellee Andrew R. Pratt, Atty. Reg. No. 0063764; Jonathan S. Zweizig, Atty. Reg. No. 0069381, 18 East Water Street, Troy, Ohio 45373 Attorneys for Defendant-Appellant . . . . . . . . . GRADY, J. {¶1} Snyder, Defendant, John C. Snyder, also known as Chris appeals from his conviction and sentence for aggravated robbery, robbery, and burglary. {¶2} Marvin Wiley lives in a rural area near Versailles with his eighty-three year old mother, Louise Wiley. On April 18, 2001, around 7:00-8:00 p.m., Mr. Wiley noticed a car with several people in it pass by his house four or five times. Finally, the car stopped, and a female emerged and came to the door and asked Wiley if the Reynolds family lived there. Mr. Wiley told the woman that no such person lived there. She then got back into the car and left. {¶3} Shortly after dark, around 9:30 p.m., Mr. Wiley heard a knock at his back door. When he answered the door, Mr. Wiley was immediately pulled outside by his arm and repeatedly struck in the face. Mr. Wiley was knocked to the ground and his two wallets plus other cash he had in his pocket were stolen. Mr. Wiley observed two assailants during the attack. {¶4} Meanwhile, Mrs. Wiley was in her bedroom preparing to go to bed. She had just taken off her glasses and her hearing aid when she turned around and saw a man who wore a handkerchief over his face, standing in her bedroom. The man demanded money and struck Mrs. Wiley across the back of the neck and shoulders, knocking her to the floor. then grabbed Mrs. Wiley s purse and ran. The man According to Mrs. Wiley, the man was holding something in his hand that was covered with another handkerchief. She believes she saw the barrel of a gun sticking out from under the handkerchief. {¶5} injured. Mrs. Wiley found her son Marvin in the back yard, Mrs. Wiley tried telephone wouldn t work. to call for help but the She picked up her cane and a flashlight and walked a quarter of a mile to a neighbor s house, where she called police. Mr. Wiley was subsequently taken to Wayne Hospital for treatment of wounds to his head and face. {¶6} When they arrived at the scene police discovered that the telephone wires to Mr. Wiley s house had been cut. Mr. Wiley had been badly beaten about the face and head. Police subsequently received a number of anonymous telephone calls about this crime, some of which indicated that Chris Snyder and Stephen Garner were involved. {¶7} During their investigation police talked with Tracy Slomba s daughter, Lindsey, Defendant s brother, Tom Macias, and Tracy Slomba s next door neighbor, Sarah Erbaugh. These conversations led police to talk with Tracy Slomba. Slomba was subsequently arrested, along with the Defendant herein, Chris Snyder, Garner, and Luis Macias. Philip Macias, Stephen Several items stolen from the Wileys were recovered by police along the rural roads near the Wiley residence. {¶8} As a result of these events, Defendant was indicted on two counts of aggravated robbery in violation of R.C. 2911.01(A)(1)/(A)(3), and one count of burglary in violation of R.C. 2911.11(A)(1). specification aggravated A firearm and a repeat violent offender specification was attached to each charge. Defendant was subsequently tried before a jury along with his co-defendant, Philip Macias. {¶9} During Defendant s Slomba s friend and next trial, door Sarah neighbor, Erbaugh, Tracy testified that earlier in the day on April 18, 2001, she and Slomba drove to Philip Macias home in Ansonia. The other people present there were Philip Macias, his two brothers, Tom Macias and Luis Macias, and Defendant, Chris Snyder. Erbaugh testified that she heard Defendant Snyder say he needed some pliers to cut wire. Additionally, she heard Philip Macias say that he needed go to see Flash, who Flash owed him some money. is Marvin Wiley, because Philip Macias returned that afternoon with Erbaugh and Slomba to Slomba s apartment in Greenville, Ohio. {¶10} At about 7:30 p.m. that evening, Slomba borrowed Erbaugh s car to drive Philip Macias back to Ansonia. After Macias and Slomba had left, Erbaugh fell asleep on the couch in Slomba s apartment. Erbaugh was awakened much later that night when Slomba returned accompanied by four men: Chris Snyder, Stephen Garner, and Luis and Philip Macias. The next morning, Erbaugh observed Slomba take three bags of trash out of her apartment, even though Erbaugh had earlier seen only two bags waiting to be taken out. Around 7:30 a.m., Erbaugh drove the two Macias brothers, and Snyder and Garner back to Ansonia. At trial, Erbaugh identified State s Exhibit 15 as a black leather jacket Chris Snyder wore on the night of April 18th. Forensic testing revealed Marvin Wiley s blood on that jacket. {¶11} After entering into a negotiated plea agreement with the State, co-defendant Stephen Garner testified on behalf of the State at Defendant Chris Snyder s trial. Garner testified that on April 18, 2001, at around 7:00-8:00 p.m., he was at Chris Snyder s home with Snyder, Tracy Slomba, Philip Macias and Luis Macias. Everyone then left together, except Garner and Slomba s daughter, Lindsay. At around 8:00-9:00 p.m. they all returned and asked Garner to help them rob Marvin Wiley. been to Wiley s home. Slomba said they had already The plan was that, when Wiley answered the door, Philip Macias would knock Wiley out and rob him. {¶12} Garner testified that he, the two Macias brothers, Tracy Slomba and Chris Snyder, got into one vehicle and drove to Marvin Wiley s residence. said he had a gun. On the way Luis Macias Upon arrival, Slomba stayed in the car while the four men got out and positioned themselves around the house. Chris Snyder cut the telephone lines. Macias then knocked on the back door. Philip Marvin Wiley answered the door and stepped outside to converse with Philip Macias. Suddenly, Philip Macias punched Wiley in the face with his fist and Wiley fell to the ground. Philip Macias and Snyder then began kicking Wiley. {¶13} Garner put his hand over Wiley s mouth to stop him from screaming. Garner heard a woman inside the house scream, and then saw Luis Macias running out of the house. The men ran back to the waiting car and Slomba drove them away from the scene. Philip Macias and Snyder each had a wallet and Luis Macias had a purse. After going through those things items, the men began throwing out of the windows of the moving car. {¶14} Slomba drove to Dayton where she and Snyder bought some crack cocaine. Everyone smoked the crack on the way back to Slomba s apartment. beer. They also stopped and purchased Upon arriving at Slomba s apartment, they found Sarah Erbaugh there, asleep on the couch. Philip Macias put his bloody clothes in a trash bag at Slomba s apartment. testified that during the robbery Luis Macias Garner wore a handkerchief over his face. {¶15} Defendant aggravated robbery Snyder of was Marvin found guilty Wiley. As to of the the count involving Louise Wiley, Defendant was found not guilty of aggravated robbery, offense robbery. of aggravated but of Defendant burglary guilty was but offense of burglary. guilty Defendant to the not included guilty lesser of included Defendant was found not guilty by the guilty specifications. lesser found of jury on the firearm specifications. Defendant the on The the trial consecutive The trial repeat court terms court found violent offender subsequently sentenced of imprisonment totaling twenty-one years. {¶16} From his conviction and sentence Defendant has timely appealed to this court. FIRST ASSIGNMENT OF ERROR {¶17} THE GUILTY FINDINGS BY THE JURY WITH RESPECT TO APPELLANT, JOHN CHRISTOPHER SNYDER, WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL. {¶18} A weight of the evidence argument challenges the believability competing of the inferences evidence, suggested and by asks the which evidence of is the more believable or persuasive. State v. Hufnagle 1996), Montgomery App. No. 15563, unreported. (Sept. 6, The proper test to apply to that inquiry is the one set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175: {¶19} [t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. {¶20} This court will not substitute its judgment for that of the credibility factfinder trier unless lost its of facts it is way. on the patently State v. issue of apparent Bradley witness that the (October 2, 1997), Champaign App. No. 97-CA-03, unreported. In State v. Lawson (August No. 22, 1997), Montgomery App. 16288, unreported, we observed: {¶21} Because the trier of fact sees and hears the witnesses and is particularly competent to decide whether, and to what extent, to credit the testimony of particular witnesses, we must afford substantial deference to its determinations of credibility. {¶22} Defendant was found guilty of violating R.C. 2911.01(A)(3) which provides: {¶23} No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following: {¶24} * * * {¶25} Inflict, or attempt to inflict, serious physical harm on another. {¶26} Defendant was also found guilty of violating R.C. 2911.02 and R.C. 2911.12 which provide respectively: {¶27} (A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following: {¶28} * * * {¶29} (3) Use or threaten the immediate use of force against another. {¶30} (A) No person, by force, stealth, or deception shall do any of the following: {¶31} (1) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense. {¶32} Defendant argues that his convictions are against the manifest weight of the evidence because there is no physical evidence linking him to these crimes. is clearly incorrect. DNA testing That claim revealed victim s blood was on Defendant Snyder s jacket. that the Defendant also relies on the argument that the State s case against him is wholly dependent upon the testimony of his co- defendant, Stephen Garner, and that Garner s testimony is not believable because it conflicts with the testimony of other witnesses, particularly the victim, Marvin Wiley. {¶33} Garner s testimony, if believed, along with Erbaugh s testimony, clearly implicates Defendant in these crimes. As we previously noted, it is the duty of the jury as trier of fact to resolve conflicts in the testimony and determine the credibility of the witnesses who testified. State v. DeHass (1967), 10 Ohio St.2d 230. {¶34} In assessing the credibility of Stephen Garner s testimony, the jury was made aware of his possible motive for testifying; that in exchange for his testimony against Defendant, Garner would face only one aggravated robbery charge with no gun specification, rather than face the same charges and specifications as Defendant, and that Garner would receive no more than five to seven years imprisonment. {¶35} We inconsistent agree at that times Garner s with at testimony the testimony trial given by was the victim, Marvin Wiley, as to some of the details surrounding the commission of these crimes. minor at best. conflict on However, those matters are The testimony of Garner and Wiley does not the essential facts that the perpetrators physically assaulted and robbed Marvin Wiley, conduct which gives rise to these charges and supports Defendant s convictions. {¶36} In reviewing the entire record in this case, as a whole, we cannot say that the evidence weighs heavily against a conviction, that the jury lost its way, or that a manifest miscarriage of justice has occurred. {¶37} Defendant s conviction is not against the manifest weight of the evidence. {¶38} Defendant s first assignment of error is overruled. SECOND ASSIGNMENT OF ERROR {¶39} THE TRIAL COURT ERRED IN FAILING TO EXCLUDE THE TESTIMONY OF STEPHEN GARNER PURSUANT TO RULE 16(E)(3) OF THE OHIO RULES OF CRIMINAL PROCEDURE. {¶40} Just two days before Defendant s trial began, on July 16, Garner. trial on 2001, Shortly behalf police interviewed co-defendant Stephen before Garner testified at Defendant s of the State, Defendant objected that Garner s testimony should be excluded as a sanction for the State s violation of the discovery rules. that the State had failed to provide Defendant argued the defense with written summaries of the oral statements Garner made to police on July 16th, as Crim.R. 16(B)(1)(a)(ii) requires. {¶41} The prosecutor responded that no written summaries were made of Garner s July 16th oral statements, and hence there was nothing prosecutor to provide additionally to argued defense that counsel. Garner s The July 16th statement was consistent with the previous statements Garner had made on or about April 26 and 27, 2001, which had been provided to defense counsel. {¶42} The trial court concluded that while the State had failed to comply with the applicable discovery Defendant suffered no prejudice as a result. rules, Therefore, the court refused to impose any sanction and permitted Garner to testify at Defendant s trial. {¶43} Defendant argues that the trial court abused its discretion in not excluding Garner s trial testimony as a sanction for the State s discovery violation. {¶44} Having initially been charged We disagree. with the same offenses as Defendant, there is no question in this case that Garner was a co-defendant and not merely a witness. Thus, the requirement in Crim.R. 16(B)(1)(a) that the State disclose to the defense statements made by a defendant or a co-defendant investigators. applies to the statements Garner made to See: State v. Lane (1976), 49 Ohio St.2d 77. {¶45} Crim.R. 16(B)(1)(a)(ii) provides: {¶46} Upon motion of the defendant, the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any of the following which are available to, or within the possession, custody, or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney: {¶47} * * * {¶48} (ii) Written summaries of any oral statement, or copies thereof, made by the defendant or co-defendant to a prosecuting attorney or any law enforcement officer. {¶49} Construing the above provision, the Ohio Supreme Court in State v. Bidinost (1994), 71 Ohio St.3d 449, held that the prosecutor has a duty to record, reduce to a written summary, a co-defendant s oral statements to police, and to Assuming timely that provide Garner such remained material a to the co-defendant defense. even after entering into a negotiated plea agreement with the State, the prosecutor had a duty under Bidinost, supra, to reduce to a written summary Garner s oral statements to police on July 16th, and to timely provide those summaries to the defense. The failure to do so constitutes a violation of the discovery rules by the State. {¶50} In terms of what is the appropriate sanction, if any, to impose for that discovery violation, Crim.R. 16(E)(3) gives the trial court discretion: {¶51} 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. See also: State v. Bidinost, supra. {¶52} Ordinarily, a trial court must impose the least severe sanction for a discovery violation that is consistent with the purposes of the rules of discovery. City of Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, syllabus. In State v. Parson (1983), 6 Ohio St.3d 442, the Ohio Supreme Court stated: {¶53} Where, in a criminal trial, the prosecution fails to comply with Crim.R. 16(B)(1)(a)(ii) by informing the accused of an oral statement made by a co-defendant to a law enforcement officer, and the record does not demonstrate (1) that the prosecution's failure to disclose was a willful violation of Crim.R. 16, (2) that foreknowledge of the statement would have benefited the accused in the preparation of his defense, or (3) that the accused was prejudiced by admission of the statement, the trial court does not abuse its discretion under Crim.R. 16(E)(3) by permitting such evidence to be admitted. Syllabus. {¶54} Applying Parson to this case, we conclude that the trial court did not abuse its discretion in refusing to exclude Garner s State s trial discovery testimony violation. as a This sanction record for does the not demonstrate that the prosecutor s failure to disclose was a willful violation of Crim.R. 16. The prosecutor assumed that since the July 16th oral statements made by the codefendant, Garner, were never reduced to a written summary, there was nothing discoverable to provide to defense counsel, and hence no violation of Crim.R. 16(B)(1)(a)(ii). Although that assumption is clearly erroneous, Bidinost, supra, it does not equate with a willful violation of the discovery rules. {¶55} Furthermore, we note that only two days elapsed between Garner s statements to police on July 16, and Defendant s claim that the State improperly withheld those statements, which was asserted just prior testifying at Defendant s trial on July 18. to Garner Given this short interval of time, and the prosecutor s assertion that the interview of Garner on July 16 was part of the plea negotiation process, no clear evidence of a willful discovery violation appears in this record. {¶56} As to whether foreknowledge of Garner s July 16 statements would have benefitted Defendant in preparing his defense, Defendant speculates that foreknowledge would have permitted him to more effectively attack Garner s credibility at trial via prior inconsistent statements. We disagree. {¶57} Prior to Garner testifying at Defendant s trial, the court permitted defense counsel to voir dire the police officer who had interviewed Garner on July 16, Det. Trissell, as to the contents of Garner s statement in order to determine if that July 16th statement was inconsistent with the previous statements made by Garner in April, which had been provided to defense counsel. That voir dire examination revealed no major differences, but only minor inconsistencies and variations between Garner s April and July statements. {¶58} For instance, in his April statement Garner indicated that Philip Macias had blood on his clothes after he assaulted Mr. Wiley, and that Macias threw those clothes into a dumpster in Greenville, Ohio. In his July 16 statement, clothes Garner were apartment. indicated put into a that Philip trash bag Macias at Tracy That apartment is in Greenville, Ohio. propositions are not inconsistent. statement, Garner indicated that bloody Slomba s The two Also, in his July 16 after committing these crimes the perpetrators drove to Dayton and bought crack cocaine, and then stopped and bought beer before returning to Tracy Slomba s apartment. the perpetrators had Garner did not mention that purchased cocaine and beer after committing these crimes in his April statement. {¶59} These variations in Garner s statements are insubstantial, at best, and do not impact the testimony about the substantive conduct giving rise to these offenses. Moreover, the thoroughly trial record cross-examined demonstrates Garner at that trial Defendant regarding the inconsistencies between his trial testimony, his previous statements, and the testimony given by other State s witnesses. {¶60} The differences between Garner s April statements, which were furnished to defense counsel, and his July 16 statement that was not, were minor in nature. Further, the substance of Garner s July 16 statement was made known to defense counsel before Garner testified at Defendant s trial, and yet defense counsel did not request a continuance to prepare his cross-examination of Garner. Therefore, this record fails to demonstrate that foreknowledge of Garner s July 16 statement would have benefitted Defendant in preparing his defense. {¶61} As to admission of demonstrates whether Defendant was prejudiced by Garner s undisclosed statement, this record that Garner s July 16 statement admitted as evidence at Defendant s trial. was not For reasons previously discussed, this record fails to demonstrate that Defendant suffered any prejudice as a result of the State s discovery violation. Therefore, we cannot conclude that the trial court abused its discretion in refusing to exclude Garner s trial testimony discovery violation. as a sanction for the State s Parson, supra. {¶62} The second assignment of error is overruled. judgment of the trial court will be affirmed. WOLFF, P.J. and FAIN, J., concur. Copies mailed to: Richard M. Howell, Esq. Andrew R. Pratt, Esq. Jonathan S. Zweizig, Esq. Hon. Jonathan P. Hein The

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