[Cite as State v. Blair, 2024-Ohio-1061.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 112388

v. :

DOMINIQUE BLAIR, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 21, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-21-665038-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Carla B. Neuhauser, Assistant Prosecuting 

Attorney, for appellee.

Joseph V. Pagano, for appellant.

SEAN C. GALLAGHER, J.:

Appellant Dominique Blair (“appellant”) appeals her convictions in 

this case and the trial court’s denial of her motions for a mistrial. Upon review, we 

affirm.

I. Background
On November 23, 2021, appellant was charged in a 13-count 

indictment with offenses stemming from an alleged shootout incident that occurred 

on October 27, 2021. The incident, which was captured on surveillance videos,

involved appellant and James Morris and occurred in the Carver Park Estates in 

Cleveland. The case proceeded to a jury trial.

In the surveillance videos, appellant and Morris are seen separately 

walking up and down Louise Harris Drive between the cross streets of Dandridge 

Circle and Bohn Road. At approximately 5:52:30 in the video footage, appellant is

walking northbound ahead of Morris with what appears to be a handgun in her right 

hand. After they exit the screen, appellant reappears walking southbound at the 

intersection of Louise Harris Drive and Bohn Road. She points her handgun behind 

her with her right arm fully extended. She also has a long, rectangular box in her 

left hand. Morris enters the screen walking on the opposite side of the street, he 

pulls the hood of his sweatshirt over his head, and he has what appears to be a 

handgun in his right hand. The two continue walking southbound on opposite sides 

of the street, and appellant appears to brandish her handgun at Morris. As appellant

is approaching the rear side of her home and passing the passenger side of a white 

Hyundai Sonata parked in the street, Morris is seen crossing the street and appears 

to discharge his firearm toward appellant. Appellant ducks down by the passenger

side of the white Hyundai and turns to her left so that she is looking back at Morris.

Appellant then stands a little further back and turns toward Morris, who reacts by 

ducking behind the rear of the white Hyundai. Morris is then seen running off. 
Appellant next appears exiting the front door of her home with several children

while holding a rifle in her hand, and she peers around the corner of her home. She 

then exits the back door without the rifle and walks around the street, stopping at 

the white Hyundai, which was being inspected by the owner’s husband. Nobody was 

injured during the incident.

The Cleveland Metropolitan Housing Authority police arrived at the 

scene after resident Dwan Poage (“Poage”) called 911 to report that a bullet had come 

through her home and that she heard “two different guns.” Officer David Whitney, 

who responded to the scene, testified that he observed a bullet that had entered 

Poage’s home and embedded itself in a wall. He followed the trajectory of the bullet 

across the street in the direction of the white Hyundai. The vehicle had sustained 

damage from bullet holes on the passenger side of the car, which appellant had been 

facing. The police found two 9 mm shell casings near the rear of appellant’s home

in the area where appellant was retreating to her home. Those shell casings were 

not linked to any weapon involved in the incident. The rear window of appellant’s 

home also was broken. Appellant informed the police that the window had just been 

shot out. Officer Whitney surmised from his observations that crossfire had 

occurred.

Detective Ashley Jaycox testified to the investigation of the shootout 

incident. The detective reviewed the video footage and testified that it appeared that 

Morris “fired what appeared to be one, possibly two rounds toward [appellant,]” that 

it appeared appellant was “firing back,” and that Morris’s “ducking behind the white 
Hyundai” was “indicative of him being shot at.” Detective Jaycox also noted the 

bullet defects on the passenger side of the white Hyundai and in Poage’s home, as 

well as the shell casings found in the area where appellant was retreating to her 

home.

The police were not able to locate a handgun attributed to appellant, 

and they did not locate any firearms in appellant’s home or in her car when she was 

arrested on November 5, 2023. Morris was not arrested until November 12, 2021. 

During his arrest, the police recovered a rifle and a 9 mm handgun, along with other 

items. A spent shell casing was recovered from Morris’s vehicle, which matched the 

9 mm handgun that was recovered in conjunction with his arrest. Detective Jaycox 

testified that the two shell casings found at the scene of the shootout incident did 

not match that handgun. Other testimony and evidence were presented in the 

matter.

During Detective Jacox’s testimony, it was revealed during a sidebar 

discussion that there were reports the state had not turned over to the defense that 

showed the 9 mm shell casings recovered at the scene of the incident did not match 

the 9 mm handgun recovered at the time of Morris’s arrest. Detective Jaycox 

indicated that “[t]here should be an Operability Report,” “the ATF Trace Report,”

and “a NIBIN entry report.”

1

 As a result of the discovery violation, the trial court 

1 The detective indicated that the “NIBIN” is “a national database of shell casings.”
excluded those records. The trial court denied appellant’s motion for a mistrial and 

her renewed motion for a mistrial.

At the close of the state’s case, the trial court dismissed Count 9 for 

endangering children at the state’s request. The trial court granted appellant’s 

Crim.R. 29 motion for acquittal only as to Count 12 for endangering children, but 

the court denied the Crim.R. 29 motion and a renewed Crim.R. 29 motion as to the 

remaining counts.

The jury returned a verdict of guilty of felonious assault (Count 1); two 

counts of improperly discharging a firearm at or into a habitation (Counts 4 and 5);

discharging a firearm on or near a prohibited premises (Count 6); endangering 

children (Counts 10 and 11); and criminal damaging (Count 13); and associated oneand three-year firearm specifications on Counts 1, 4, 5, and 6. The jury found 

appellant not guilty of Counts 2 and 3 for felonious assault and Count 8 for carrying 

a concealed weapon. The trial court found appellant guilty of having a weapon while 

under a disability (Count 7).

Appellant filed a post-trial motion to declare a mistrial and to set 

aside the jury verdict and for a new trial. A hearing was held, and the trial court 

denied the motion. The trial court proceeded to sentencing. The aggregate-total 

prison sentence imposed was eight years. 

Appellant timely filed this appeal. She raises three assignments of 

error for review.
II. ANALYSIS

Under her first assignment of error, appellant claims the trial court 

erred by denying her motions for mistrial. Appellant argues that the state violated 

Crim.R. 16 by failing to provide discovery material before trial. The undisclosed 

information included reports and/or test results that showed the two shell casings 

found at the scene of the incident did not match the handgun found in conjunction 

with Morris’s arrest. As a result of the discovery violation, the trial court excluded 

the records. Appellant’s motions for a mistrial were denied.

Pursuant to Crim.R. 16, when a discovery violation is brought to the 

attention of the court, the court may make any order it deems “just under the 

circumstances.” Crim.R. 16(L)(1). The trial court is to inquire into the 

circumstances of the alleged discovery violation and is required to impose “the least 

severe sanction that is consistent with the purpose of the rules of discovery.” State 

v. Parker, 53 Ohio St.3d 82, 86, 558 N.E.2d 1164 (1990), citing Lakewood v. 

Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987). The trial court has discretion in 

determining an appropriate sanction. See State v. Parson, 6 Ohio St.3d 442, 445, 

453 N.E.2d 689 (1983). Our review of the trial court’s determination is for an abuse 

of discretion. State v. Marshall, 1st Dist. Hamilton Nos. C-190748 and C-190758, 

2021-Ohio-816, ¶ 16.

The Supreme Court of Ohio has set forth three factors that should 

govern a trial court’s exercise of discretion in imposing a sanction for a discovery 

violation committed by the prosecution. See State v. Darmond, 135 Ohio St.3d 343, 
2013-Ohio-966, 986 N.E.2d 971, ¶ 35, citing Parson at syllabus. Those factors 

include “(1) whether the 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.” Id., citing Parson at syllabus. However, a mistrial should be granted 

“only when justice requires and a fair trial is no longer possible.” State v. Madison, 

160 Ohio St.3d 232, 2020-Ohio-3735, 155 N.E.3d 867, ¶ 196, citing State v. Cepec, 

149 Ohio St.3d 438, 2016-Ohio-8076, 75 N.E.3d 1185, ¶ 89; see also State v. 

Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991); Parker at 86, citing Hughes 

v. Hopper, 629 F.2d 1036, 1039 (5th Cir.1980).

The record herein does not demonstrate that the prosecution’s 

nondisclosure of discovery materials was willful. Further, it defies logic for 

appellant to suggest the nondisclosed evidence would have offered a new defense 

strategy or have benefited the accused in preparing her defense. The video evidence

in this case depicted appellant with what appeared to be a handgun and her 

interaction with Morris. There were bullet holes to the passenger side of the white 

Hyundai appellant was facing, a bullet embedded in Poage’s home across the street, 

a 911 call reporting hearing two different guns, and two shell casings found near the 

rear of appellant’s home. The defense was aware that the police did not recover a 

firearm associated with appellant and that the two shell casings, which had been 

made available for inspection, were never connected to any firearm. Despite the

evidence, the defense theory was always that “she didn’t shoot.” The fact that the 
two shell casings did not match the firearm found at the time of Morris’s arrest is of 

no consequence. The shell casings could have come from any 9 mm handgun, and

as Detective Jaycox testified, the shell casings are not even needed to conclude that 

a shooting took place. The test results simply do not alter the essential facts in this 

case. Additionally, there was little, if any, prejudice to appellant from the 

nondisclosure of the reports and/or test results. The trial court took remedial 

measures and excluded the undisclosed records from use at trial, the detective was 

effectively cross-examined, and there is nothing in the record to indicate that had 

the reports and/or test results been disclosed prior to trial, the result of the 

proceeding would have been different.2

Finally, although a discovery violation occurred, the trial court 

properly exercised its discretion by imposing the least severe sanction consistent 

with the purposes of the criminal discovery rules. As the trial court indicated, it 

“took the least heavy-handed approach to this by excluding those records.” In the 

end, because appellant was not prevented from receiving a fair trial, a mistrial was 

wholly unwarranted. Upon our review, it cannot be said that there was any abuse of 

discretion by the trial court. 

We also do not find any abuse of discretion in the trial court’s denial 

of appellant’s request to set aside the verdict and for a new trial. The motion was 

filed outside the 14-day time frame permitted by Crim.R. 33. Further, the 

2 The circumstances of this case are wholly distinguishable from State v. Wilson, 

30 Ohio St.3d 99, 507 N.E.2d 1109 (1987), which is cited by appellant.
discretionary decision to grant a new trial “‘is an extraordinary measure that should 

be used only when the evidence presented weighs heavily in favor of the moving 

party.’” State v. Howard, 8th Dist. Cuyahoga No. 101359, 2015-Ohio-2854, ¶ 45, 

quoting State v. Price, 8th Dist. Cuyahoga No. 92096, 2009-Ohio-480, ¶ 14. This is 

not such a case.

Insofar as appellant raises a due-process challenge, we recognize that 

“‘[t]here is no general constitutional right to discovery in a criminal case * * *.’” 

Marshall, 1st Dist. Hamilton Nos. C-190748 and C-190758, 2021-Ohio-816, at ¶ 23, 

quoting State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 120. 

We find no constitutional violation occurred in this matter. Additionally, there was

no Brady violation. See id. at ¶ 12; Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 

1194, 10 L.Ed.2d 215 (1963). Accordingly, the first assignment of error is overruled.

Under her second assignment of error, appellant claims that the trial 

court erred by denying her motions for acquittal.

“‘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. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, 

¶ 164, quoting State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 

386, ¶ 37. “‘The relevant inquiry is 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.’” Id., quoting 

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the 
syllabus. When evaluating the sufficiency of the evidence, a reviewing court 

considers “whether the evidence, ‘if believed, would convince the average mind of 

the defendant’s guilt beyond a reasonable doubt.’” State v. Pountney, 152 Ohio St.3d 

474, 2018-Ohio-22, 97 N.E.3d 478, ¶ 19, quoting Jenks at paragraph two of the 

syllabus. 

A review of the record reflects that the actions of appellant and Morris 

were captured on video. Officer Whitney and Detective Jaycox testified to their 

observations of a crossfire or shootout situation. The video evidence showed that 

appellant was observed carrying, brandishing, and pointing a handgun as she was 

walking ahead of Morris. She also was observed exiting her home with a rifle in 

hand while surrounded by children. During the encounter with Morris, she was 

observed ducking behind the passenger side of the white Hyundai and turning 

toward Morris, as well as turning toward Morris as she retreated toward her home. 

Morris reacted by ducking behind the vehicle and then running off. The owner of 

the white Hyundai testified to hearing three loud shots outside her home. There 

were bullet holes in the passenger side of the white Hyundai, and a bullet passed 

through a home across the street and was lodged into a wall. The witness who was 

in that home called 911 and reported hearing two different guns. Officer Whitney 

testified to following the trajectory of the bullet in Poage’s home toward the white 

Hyundai. The police found two 9 mm shell casings near the rear of appellant’s home. 

Viewing this and the other evidence presented in a light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the 
crimes for which appellant was convicted were proven beyond a reasonable doubt. 

The second assignment of error is overruled.

Under her third assignment of error, appellant claims her convictions 

were against the manifest weight of the evidence.

When evaluating a claim that a verdict is against the manifest weight 

of the evidence, “we review the entire record, weigh the evidence and all reasonable 

inferences, consider the credibility of witnesses, and determine whether in resolving 

conflicts in the evidence, the [trier of fact] clearly lost its way and created such a 

manifest miscarriage of justice that we must reverse the conviction and order a new 

trial.” State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 168, 

citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). 

Reversing a conviction based upon the weight of the evidence should occur “‘only in 

the exceptional case in which the evidence weighs heavily against the conviction.’” 

Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 

717 (1st Dist.1983).

After reviewing the entire record, weighing the evidence and all 

reasonable inferences, and considering the credibility of the witnesses, we do not 

find the trial court clearly lost its way and created such a manifest miscarriage of 

justice that the adjudication must be reversed. Insofar as appellant challenges her

conviction for having a weapon while under disability, which was tried to the bench,

the trial court found appellant guilty on that count, which was reflected in the court’s 

journal entry. Before the trial began, the trial court informed appellant that this 
charge would be tried to the bench and noted appellant’s prior conviction for 

aggravated assault, which appellant understood. Also, at the conclusion of trial, 

defense counsel stated, “I’m not objecting as to the Court considering [the] 2010 

[prior conviction].” Further, although appellant challenges the testimony and 

evidence that was provided in the case, this is not the exceptional case in which the 

evidence weighs heavily against the conviction for the challenged offenses. The third 

assignment of error is overruled.

Under her fourth assignment of error, appellant claims the trial court 

erred by allowing certain testimony and by admitting several exhibits over 

appellant’s objections.

Appellant argues that Detective Jaycox, who was not present at the 

scene, was permitted to narrate the surveillance video and to make identifications 

of persons in the video. Appellant further argues that the court allowed several 

exhibits to be admitted over objection. She references the guns and box recovered 

from Morris and photos of the vehicle driven by Morris at the time of his arrest. 

We find the video evidence was properly admitted under the silent 

witness theory pursuant to Evid.R. 901. See State v. Ladson, 8th Dist. Cuyahoga 

No. 111211, 2022-Ohio-3670, ¶ 21-22. Detective Jaycox testified to the camera 

locations, to pulling the surveillance videos, and to reviewing the videos during the 

detective’s investigation. As the lead investigator, Detective Jaycox had adequate 

personal knowledge to testify as to the contents of the footage pursuant to 

Evid.R. 02. See Ladson at ¶ 44, citing State v. Groce, 2019-Ohio-1007, 133 N.E.3d 
930, ¶ 46 (10th Dist.). Appellant cites no authority that supports her argument 

concerning the admission of the other evidence. It is not the role of an appellate 

court to search for case authority to support arguments on behalf of one of the 

parties. See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 

900, ¶ 19, citing State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 

753, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part), quoting Carducci 

v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). Even if there was an error in this regard,

it was harmless at best. See Crim.R. 52(A).

We are unable to find any abuse of discretion by the trial court. The 

fourth assignment of error is overruled.

We have considered all arguments raised by appellant and are not 

persuaded by any argument that is not specifically addressed herein.

Judgment 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 issue out of this court directing the 

common pleas 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.

______________________

SEAN C. GALLAGHER, JUDGE

MICHAEL J. RYAN, J., CONCURS;

MARY EILEEN KILBANE, P.J., DISSENTS (WITH SEPARATE OPINION)

MARY EILEEN KILBANE, P.J., DISSENTING:

I respectfully dissent from the majority opinion. I would find that the 

trial court should have granted a mistrial based upon the state’s Crim.R. 16 discovery 

violation.

The discovery violation was revealed when Detective Jaycox testified 

that (1) the 9 mm firearm and shell casings recovered from Morris were entered into 

the NIBIN system and (2) the state received test results that indicated two separate 

firearms were discharged on October 27, 2018. Detective Jaycox’s testimony was 

defense counsel’s first notice that any such testing was conducted; the state does not 

dispute that the referenced test results were never provided through discovery.

Blair moved for a mistrial, both during and after trial, based upon the 

state’s failure to disclose the test results in violation of Crim.R. 16. The essential 

inquiry on a motion for mistrial is whether the accused’s substantial rights were 

adversely or materially affected. State v. Johnson, 8th Dist. Cuyahoga No. 108621, 

2020-Ohio-2940, ¶ 24, citing 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). Further, Crim.R. 16 governs discovery and requires the prosecuting 

attorney to provide results of experiments and scientific tests. Crim.R. 16(B)(4). 

The purpose of the 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 wellbeing of witnesses, victims, and society at large.” Crim.R. 16(A). The rule serves to 

“‘“prevent surprise and the secreting of evidence favorable to one party.’”” Johnson,

8th Dist. Cuyahoga No. 108621, 2020-Ohio-2940 at ¶ 26, quoting Darmond, 135 

Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971 at ¶ 19, quoting Papadelis, 32 Ohio 

St.3d 1, 511 N.E.2d 1138, at 3 (1987).

An inquiry of a discovery violation should include three 

considerations referenced as the Parson factors: “(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.” Darmond at ¶ 35, citing

Parson, 6 Ohio St.3d 442, 453 N.E.2d 689, at syllabus. A review of the evidence in 

relation to the Parson factors is necessary to determine the appropriate sanction for 

the discovery violation. State v. Pagan, 8th Dist. Cuyahoga No. 97268, 2012-Ohio2197, ¶ 37, citing State v. Wharton, 4th Dist. Ross No. 09CA3132, 2010-Ohio-4775, 

¶ 21.
Here, the Parson factors demonstrate the appropriate sanction for 

the discovery violation was a mistrial. Detective Jaycox provided the test results to 

the assistant prosecuting attorney in charge of Morris’s criminal case, believing the 

information would be shared with Blair’s counsel. Detective Jaycox testified that 

the state’s failure to provide the reports was unintentional. Testimony was 

introduced that in a separate, unrelated criminal matter, Assistant Prosecuting 

Attorney Neuhauser (“Neuhauser”) — who was assigned to Blair’s case — failed to 

share discovery prior trial; presumably this evidence was introduced to show a 

pattern of misconduct by Neuhauser. The testimony was insufficient to demonstrate 

Neuhauser’s actions in the instant matter constituted a willful violation of Crim.R. 

16.

However, where the basis of Blair’s defense was that she did not 

discharge a firearm on October 27, 2021 — a defense strategy known to the state —

the tool mark report that confirmed a second firearm was discharged on the day of 

the alleged shooting would have benefitted Blair in the preparation of her defense. 

Jaycox conceded the tool mark report was significant to Blair’s defense:

DEFENSE COUNSEL: So you had to test it because it was possible at 

that point that they would match the gun that was recovered from Mr. 

Morris that would indicate perhaps that Ms. Blair hadn’t fired a 

weapon, correct?

JAYCOX: That’s correct.

DEFENSE COUNSEL: All right. So it could — that evidence, that very 

same evidence could be exculpatory and/or inculpatory, correct?

JAYCOX: Correct.
DEFENSE COUNSEL: Which is why it’s of key significance for Ms. 

Blair to know about, correct?

JAYCOX: Yes.

Tr. 648. While the case against Blair would have been submitted for prosecution 

even without the shell casings recovered at Carver Park, knowledge of the test results 

could have allowed Blair to adopt another defense strategy or approach the state’s 

plea offer differently.

Additionally, Blair was prejudiced by the Crim.R. 16 violation. 

Presumably defense counsel’s questioning of Detective Jaycox would have been 

different if Blair knew about the test results before trial. Without prior notice of the 

test results, defense counsel’s inquiries led to Detective Jaycox stating on the record 

that the test results were obtained and showed the two shell casings were unrelated 

to the firearm recovered during Morris’s arrest. Defense counsel had no way to 

anticipate this testimony. And even though the trial court prevented any additional 

questioning on this issue or introduction of the test results, the jury heard Detective

Jaycox’s related testimony.

In applying the Parson factors, I would find that Blair’s defense 

strategy was adversely impacted, and Blair was prejudiced by the state’s failure to 

disclose the test results. I would find, pursuant to Blair’s first assignment of error, 

that the trial court abused its discretion when it denied Blair’s motion for a mistrial; 

vacate Blair’s convictions; and remand for a new trial.

For these reasons, I respectfully dissent.