[Cite as State v. Gunther, 2024-Ohio-1848.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

HENRY COUNTY

STATE OF OHIO,

CASE NO. 7-23-08

 PLAINTIFF-APPELLANT,

 v.

MICAH GUNTHER, O P I N I O N

 DEFENDANT-APPELLEE.

Appeal from Henry County Common Pleas Court

Trial Court No. 21CR044

Judgment Reversed and Cause Remanded

Date of Decision: May 13, 2024

APPEARANCES:

Gwen Howe-Gebers for Appellant

Joseph C. Patituce for Appellee
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ZIMMERMAN, J.

{¶1} Plaintiff-appellant, the State of Ohio, appeals the July 10, 2023 

judgment of the Henry County Court of Common Pleas dismissing the criminal 

indictment against defendant-appellee, Micah Gunther (“Gunther”). For the reasons 

that follow, we reverse.

{¶2} This case stems from a years-long federal and state investigation of a 

criminal-drug-trafficking enterprise, which culminated in the indictment of 12 

individuals—including Gunther and his co-defendant, Tyler Addiego (“Addiego”). 

(See App. Case No. 7-23-09). Gunther and Addiego, residents of California, were 

alleged to have engaged in a criminal-drug-trafficking enterprise that intersected 

through Henry County, Ohio. According to the State, Gunther and Addiego 

orchestrated the members of the criminal-drug-trafficking enterprise to travel to 

Indiana through Henry County to facilitate the delivery of drugs or currency on 

behalf of the enterprise. The State alleged that Gunther collaborated with Brian 

Ochs (“Ochs”)—a cooperating witness of the State—in the criminal-drugtrafficking enterprise in which Gunther and Ochs coordinated the activities of the 

enterprise, including the supply and distribution of marijuana and the return of the 

drug proceeds from Ohio to California. The State further alleged that, as part of the 

criminal-drug-trafficking enterprise, Gunther directed Addiego to Toledo to assist 

with Gunther’s drug-trafficking activities to monitor Ochs.
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{¶3} On March 24, 2021, the Henry County Grand Jury indicted Gunther on 

a single count of engaging in a pattern of corrupt activing in violation of R.C. 

2923.32(A)(1), a second-degree felony. In addition to Gunther and Addiego, the 

Henry County Grand Jury also indicted Derek Goeckerman (“Goeckerman”), Lorn 

Justice (“Justice”), Dustin Hall (“Hall”), Christopher Seacott (“Seacott”), Khalid 

Nasirdeen (“Nasirdeen”), Ian Hoffman (“Hoffman”), Nathan Mowery (“Mowery”), 

Michael Waldvogel (“Waldvogel”), Michael Schrickel (“Schrickel”), and Aaron 

Ivory (“Ivory”). Ochs and another cooperating witness for the State, Yousef 

Mahmoud (“Mahmoud”), were not indicted.

{¶4} Gunther appeared for arraignment on April 19, 2021 and entered a plea

of not guilty. That same day, Gunther filed a demand for discovery in the trial court 

along with a discovery acknowledgement indicating that he received a “cd/dvd” 

marked “counsel only.” (Doc. No. 15). 

{¶5} On February 11, 2022, Gunther filed a motion in the trial court to sever

his case from Addiego’s case for purposes of trial, which the trial court denied on 

March 2, 2022.

{¶6} On March 8, 2022, Gunther filed a motion requesting that “the State 

reveal any agreement entered into between the State and any prosecution witness.” 

(Doc. No. 40). That same day, Gunther also filed a motion for a more specific bill 

of particulars. On March 11, 2022, the trial court ordered the State to “produce all 
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statements made by any codefendant or member of the Enterprise as well as

[confidential informants].” (Doc. No. 42).

{¶7} Alleging that the State had not yet complied with the trial court’s March

11, 2022 discovery order, Gunther filed motions on August 18, 2022 to compel the 

State to (1) “disclose the identity, existence, and substance of agreements, promises 

of immunity, lenience, or non-prosecution agreements entered into between the 

State and any witness or defendant” and (2) “provide all evidence in this case, 

including evidence related to impeachment of the State’s witnesses” because 

Gunther “inquired into the leniency and deference given to Mr. Ochs and the reason 

he is not indicted alongside the Defendants in this matter” with no response from 

the State. (Doc. Nos. 53, 54). Gunther also filed a motion that day requesting that 

the trial court sanction the State for its failure to comply with the discovery requests. 

{¶8} On September 8, 2022, the State responded that it “provided the plea 

papers of those co-defendants who may be testifying on behalf of the State of Ohio 

at trial * * * .” (Doc. No. 57). In that response, the State further asserted that it 

“provided information recently received from the DEA concerning potential ‘other 

acts’ information of another cooperating witness.” (Id.). 

{¶9} Following a hearing, the trial court on September 22, 2022 granted 

Gunther’s motions to compel and ordered the State to disclose the evidence “on or 

before October 10, 2022.” (Doc. No. 70). In the same entry, the trial court denied 

Gunther’s motion for sanctions since “the State has not been dilatory in complying 
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with the Criminal Rules in light of the substantial amount of discovery time in this 

case” even though “certain material which [Gunther] was entitled to has not been 

provided.” (Id.).

{¶10} On September 12, 2022, Gunther filed a motion requesting that the 

trial court disclose the grand jury testimony relative to his indicted case. On 

September 19, 2022, the State filed a memorandum in opposition to Gunther’s 

motion requesting that the trial court disclose the grand jury testimony. After

Gunther filed a reply to the State’s memorandum in opposition to his motion 

requesting that the trial court disclose the grand jury testimony, the trial court denied 

Gunther’s motion on October 12, 2022.

{¶11} On September 15, 2022, Gunther filed a motion to continue a 

September 19, 2022 hearing, arguing that the State was deficient in its discovery 

responses. (See Doc. No. 60). Likewise, the State filed a motion to continue the 

September 19, 2022 hearing, contending that it required additional time “to discuss 

the motions with the Agents on the cases to determine if the information complained 

of has been provided, is even available or how to respond.” (Doc. No. 63). 

{¶12} On September 16, 2022, Gunther filed a motion to dismiss the case, 

arguing that the State failed to disclose “all statements, text messages and 

handwritten notes made by the cooperating witness [Ochs] and the [confidential 

informant] as previously ordered by” the trial court. (Doc. No. 64). The State filed 

its memorandum in opposition to Gunther’s motion to dismiss on September 19, 
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2022 in which the State refuted Gunther’s contention that it did not provide

discovery relating to Ochs or any other confidential informants. After concluding 

that the State “sufficiently addressed concerns regarding discovery,” the trial court 

denied Gunther’s motion to dismiss on October 12, 2022. (Doc. No. 77).

{¶13} On September 26, 2022, the State filed a motion requesting that trial 

court authorize it to withhold the identities of confidential sources under Crim.R. 

16(D) “until the State determines that this person is a necessary witness for trial.” 

(Doc. No. 71). On September 27, 2022, the trial court ordered “that the Confidential 

Sources be available for interview outside the presence of agents on or before 

October 10, 2022” but permitted the State to withhold “the present location, address, 

and phone numbers of the informants.” (Doc. No. 72). Notwithstanding the trial 

court’s order, according to the State, “[n]o such attempt to interview the confidential 

informants took place.” (Doc. No. 151).

{¶14} The State filed a supplemental discovery response on October 7, 2022. 

(See Doc. No. 74).

{¶15} On October 19, 2022, Gunther filed a motion requesting that the trial 

court disqualify the prosecutor from further participation in the case, alleging that 

the prosecutor “lied directly to [the trial] court or Brian Ochs and multiple DEA 

Agents are lying” to the trial court. (Doc. No. 79). That same day, Gunther filed a 

motion to dismiss the case based on prosecutorial misconduct. (See Doc. No. 81).
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{¶16} On October 25, 2022, Gunther filed a motion to compel the State to 

disclose information related to Nasirdeen, a confidential informant and “indicted 

co-defendant who has entered a guilty plea and is waiting [sic] sentencing * * *, 

which was not previously disclosed to the defense * * * .” (Doc. No. 85).

{¶17} On October 26, 2022, Gunther filed a motion requesting that the trial 

court sanction the State for failing to reveal whether Ochs received any benefit from 

the State in exchange for his testimony.

{¶18} On October 27, 2022, the State filed a memorandum in opposition to 

Gunther’s motions to disqualify the prosecutor and for sanctions, and his motion to

dismiss in which the State represented that it provided Gunther “reports when codefendants or cooperating witnesses make statements in any proffers” and that it 

“provided well into the thousands of pages of discovery to” Gunther. (Doc. No. 

87). The State further asserted that “[t]he extrapolations, innuendos, inaccurate 

portrayal of discovery items, and blatant misrepresentations [are] an attempt by 

[Gunther] to paint the State of Ohio and its agents as those who wholly disregard 

the criminal justice system and would place their reputations in jeopardy for the 

likes of the defendants” (Id.). The State filed a supplemental memorandum (in 

opposition to Gunther’s motions) on November 17, 2022 in which the State further 

refuted Gunther’s allegations that the State failed to provide “reports when codefendants or cooperating witnesses make statements in any proffers.” (Doc. No. 

88). Specifically, the State detailed that it disclosed information related to 
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Nasirdeen, “provided copies of the plea documents” “[a]s to other cooperating codefendants,” and informed Gunther that even though “no promises have been to 

[sic] Ochs,” Ochs “understands that his continued cooperation will determine what 

any outcome will be.” (Id.).

{¶19} Also on November 18, 2022, Gunther filed a motion requesting that 

the trial court sanction the State for failing to disclose evidence related to Ochs and 

its confidential informants. Specifically, Gunther requested that the trial court 

sanction the State by dismissing the case or disqualifying the prosecutor. On 

November 21, 2022, the State filed a memorandum in opposition to Gunther’s 

motion.

{¶20} On December 16, 2022, Gunther filed a demand for a bill of particulars 

“providing with specificity the nature of the offense charged and the conduct of the 

defendant alleged to constitute the offense.” (Emphasis sic.) (Doc. No. 92). The 

State provided a “more specific Bill of Particulars * * * on March 23, 2023.” (Doc. 

No. 151). (See also Doc. No. 138).

{¶21} Following a October 31, 2022 hearing, the trial court on December 22, 

2022 denied Gunther’s motions to disqualify the prosecutor, for sanctions, to 

dismiss, and to compel after concluding that the prosecutor did not lie to the trial 

court and that “any benefit Brian Ochs receives by testifying is a matter that must 

be addressed at the jury trial.” (Doc. No. 93). Importantly, the trial court determined 

that, “[s]hould [Gunther] believe there is discoverable information not included in 
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a previous disclosure, he must first send a written request for the information to the 

State prior to seeking a Motion to Compel and Sanctions” because the trial court

“does not have legal authority to dismiss a criminal case prior to trial on discovery 

ground [sic] due to the State’s continuing duty to provide discovery.” (Id.). That 

same day, the trial court ordered that “no motion to compel shall be accepted unless 

it comes attached with written evidence that the party previously requested the 

information from opposing counsel.” (Doc. No. 94). 

{¶22} Gunther filed a renewed motion on November 18, 2022 to compel the 

State “to provide all evidence related to the confidential informants and the State’s 

star witness, Brian Ochs.” (Doc. No. 89).

{¶23} Ultimately, the trial court issued an order on April 5, 2023 prohibiting 

the State from introducing “the discovery provided to [Gunther] on April 3, 2023” 

because “[i]t was obtained to [sic] close to the trial date and its admission would be 

prejudicial to [Gunther].” (Doc. No. 105). The State filed a motion on April 14, 

2023 requesting that the trial court reconsider its decision “to not allow the 

substitution of a document witness,” which the trial court denied that same day. 

(Doc. No. 110).

{¶24} On April 10, 2023, Gunther filed a motion requesting that the trial 

court order the State “to produce a written summary of any oral statement made by 

a co-defendant, all notes written by law enforcement about the same, or in the 

alternative to exclude those witnesses from testifying.” (Doc. No. 108). The State 
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filed memoranda in opposition to Gunther’s motion on April 11 and 14, 2023, 

respectively, in which the State requested that the trial court “deny defendant’s 

request for production of trial preparation notes of potential witnesses” since 

“Crim.R. 16 does not require the State to provide ‘work product’ trial preparation, 

including those of co-defendants, to defense counsel.” (Doc. No. 109). The trial 

court denied Gunther’s motion on April 14, 2023.

{¶25} Further, in its April 14, 2023 entry, the trial court concluded that the 

State untimely provided Gunther the plea agreements of four co-defendants 

(Mowrey, Justice, Goeckerman, and Nasirdeen). Consequently, the trial court 

excluded those witnesses from testifying at trial. Likewise, the trial court excluded 

the testimony of two unindicted co-conspirators (Ashley Olszewski-Ivory and Eric 

Goble) since their “proffers should have been obtained and disclosed prior to” April 

13, 2023. (Doc. No. 112). Finally, the trial court permitted the testimony of 14 

additional unindicted co-conspirators (Ochs, Mahmoud, Robert Shiekh, Aaron 

Zombo, Brian Hahn, James Henderson, Jennifer Anderson, Andrew Noss, Matt 

Brodbeck, Donald Christie, Shane Christie, David Wood, Zachary Shank, and 

David Willegas) after the State “indicated that none of [those] individuals have any 

agreement, understanding or expectation of consideration from the government in 

exchange for their testimony.” (Id.).

{¶26} On April 18, 2023, the trial court issued a judgment entry vacating the 

April 24, 2023 trial date after determining that “information contained in [BCI 
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Confidential Source] packets raised significant concerns that the State has not 

complied with Crim.R. 16 and with the prior orders of the [trial court] particularly 

in regards to consideration Mr. Brian Ochs has or expects to receive from the 

government in exchanged [sic] for his testimony.” (Doc. No. 115).

{¶27} The State filed its notice of appeal on April 24, 2023 from the trial 

court’s April 5, 14, and 18, 2023 judgment entries. Thereafter, this court dismissed

the State’s appeal on May 31, 2023 after concluding that “there is no discretionary 

appeal available * * * .” (Doc. No. 150).

{¶28} On April 21, 2023, the State filed additional discovery responses, 

which had previously been recorded on an electronic-discovery portal known as 

Matrix. (See Doc. Nos. 116, 119-141); (Doc. No. 134, Ex. L). That same day, the 

State filed a certification of nondisclosure under Civ.R. 16(D). (See Doc. No. 117).

{¶29} On April 24, 2023, Gunther filed a motion to dismiss the “case with 

prejudice as a result of the State’s willful and intentional violations of the Ohio 

Constitution, United States Constitution, Rules of Criminal Procedure, Rules of 

Evidence, and Rules of Professional Conduct.” (Doc. No. 145). Specifically, 

Gunther alleged that “Brian Ochs and Yousef Mohammad [sic] have been formal 

BCI informants since January 2020 working and cooperating with the government 

in exchange for consideration on their pending charges” but that he has not “been 

provided discovery outlining what the ‘pending charges’ are * * * .” (Id.). Gunther 

alleged that, notwithstanding the State’s statements to the contrary, the State 
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provided documents “related to Brian Ochs and Yousef Mohammed [sic], [which] 

state in pertinent part that ‘[t]he [confidential source] has pending charges and is 

providing services and information in consideration of those charges.’” (Emphasis 

sic.) (Id., quoting Doc. No. 115, Exs. A, B). 

{¶30} Even though Gunther previously waived his right to a speedy trial, 

Gunther revoked that waiver on May 12, 2023.

{¶31} On June 6, 2023, the State filed a memorandum in opposition to 

Gunther’s motion to dismiss in which the State countered that, notwithstanding the 

trial court’s order to provide the information in April 2023, it provided “two 

documents * * * titled, ‘Completed Mahmoud BCI CS Establishment Packet 

Provided on 4-17-22’ and ‘Completed Ochs BCI CS Establishment Packet Provided 

on 4-17-22’” on April 17, 2022. (Doc. No. 151). According to the State, while it 

did not have any formal agreements with Ochs or Mahmoud, it was “not denying 

that consideration will be made as it relates to the prosecution of Ochs, Mahmoud 

and cooperating witnesses” and that such information “was clearly documented in 

the Confidential Source establishment packet.” (Id.). However, the State put forth 

that it was its “position there [were] no agreements made with either confidential 

source” and that the BCI Confidential Source packet materials “indicate the standard 

form language ‘CS has pending charges and is providing services and information

in consideration of those charges.’” (Id.). In sum, the State represented that “[t]here 

are no filed charges against either of these sources regarding the matter in which 
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they are testifying” and that “they will testify that there is ‘hope’ but no formal 

agreements have been made with them,” which “[e]ven if * * * considered an 

‘agreement,’ it only adds to the cumulative nature of cross examination material 

available to the defense.” (Emphasis sic.) (Id.). Gunther filed his reply to the 

State’s memorandum in opposition to his motion to dismiss on June 23, 2023.

{¶32} On July 10, 2023, the trial court granted Gunther’s motion to dismiss

after concluding that “there have been willful Crim.R. 16 violations in this case.” 

(Doc. No. 156). In particular, the trial court resolved that “the least severe sanction 

that is consistent with the purpose of the rules of discovery” is dismissal of the case 

because the trial court “issued multiple orders to compel discovery, * * * excluded 

witnesses from testifying and * * * continued the case multiple times” but “Crim.R. 

16 violations have continued to occur.” (Id.). Importantly, the trial court 

determined that the State’s representations regarding the BCI Confidential Source 

packet materials were disingenuous. Specifically, the trial court concluded that, 

notwithstanding the State’s contention that it did not have any formal agreement 

with Ochs or Mahmoud, it could not “interpret [the BCI Confidential Source packet 

materials] any other way than what it explicitly says, that Brian Ochs and Yousef 

Mahmoud are providing services and information in consideration of pending 

charges.” (Id.). Further, the trial court reasoned that the “blank or whited out 

documents [are] missing more than signatures” even though “[t]he State argue[d] 
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that [they] are simply blank copies of the Ohio BCI Confidential Source documents 

* * * .” (Id.). 

{¶33} On July 11, 2023, the State filed its notice of appeal from the trial 

court’s July 10, 2023 judgment entry dismissing the indictment against Gunther. It 

raises one assignment of error for our review. 

Assignment of Error

The Trial Court Erred And Abused Its Discretion In Dismissing 

The Indictment. 

{¶34} In its sole assignment of error, the State argues that the trial court 

abused its discretion by dismissing the indictment in this case. Specifically, the 

State contends that the trial court unreasonably, arbitrarily, and unconscionably 

concluded that any Crim.R. 16 violation was willful because “the information was 

known by the defense from numerous discovery responses and [because Gunther] 

could not demonstrate how it truly prejudiced [him].” (Appellant’s Brief at 27). 

Standard of Review

{¶35} This court reviews “a trial court’s decision on a motion to dismiss an 

indictment for abuse of discretion.” State v. Hudson, 169 Ohio St.3d 216, 2022-

Ohio-1435, ¶ 19. An abuse of discretion suggests that a decision is unreasonable, 

arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980). 
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Analysis

{¶36} In this case, the trial court granted Gunther’s motion to dismiss after 

concluding that the State willfully violated Crim.R. 16 by failing to timely disclose

the information in the BCI Confidential Source packet materials. Specifically, the 

trial court concluded that the State failed to timely disclose “letters indicating that 

the CS (Briah Ochs and Yousef Mahmoud) have pending charges and are providing 

services in consideration of those charges” as ordered by the trial court “on March 

7, 2022, September 27, 2022, and December 22, 2022 * * * .” (Doc. No. 156). The 

trial court resolved “that the undisclosed material would have materially benefitted 

the accused in the preparation of his defense and further [found] that [Gunther] was 

prejudiced by the State’s failure to disclose this information.” (Id.). That is, the 

trial court determined that “[t]he veracity of their statements and any consideration 

they have received for their testimony is absolutely material to [Gunther’s] ability 

to mount his defense.” (Id.). In sum, the trial court determined that “the least severe 

sanction that is consistent with the purpose of the rules of discovery” is dismissal 

because the trial court was “concerned that if this case, which has been pending for 

over two years, is reset for another jury trial more vital discovery will surface on the 

eve of or even after the trial.” (Id.).

{¶37} Crim.R. 16 provides the discovery rules for criminal 

proceedings. State v. Engle, 166 Ohio App.3d 262, 2006-Ohio-1884, ¶ 7 (3d Dist.).

Generally, “[t]he United States Supreme Court has held that ‘the suppression by the 
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prosecution of evidence favorable to an accused upon request violates due process 

where the evidence is material either to guilt or to punishment, irrespective of the 

good faith or bad faith of the prosecution.’” State v. Glenn, 3d Dist. Marion No. 9-

19-64, 2021-Ohio-264, ¶ 20, quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct.

1194 (1963). See also State v. Canankamp, 3d Dist. Auglaize No. 2-22-02, 2023-

Ohio-43, ¶ 68 (noting that Brady applies to the discovery of evidence after trial).

“In recognition thereof, Crim.R. 16(B)(5) requires the prosecutor to disclose ‘[a]ny 

evidence favorable to the defendant and material to guilt or punishment.’” Glenn at 

¶ 20, quoting Crim.R. 16(B)(5). See also State v. Darrah, 12th Dist. Warren No. 

CA2006-09-109, 2007-Ohio-7080, ¶ 26 (noting that Crim.R. 16 “codifies the 

constitutional right of a defendant to receive from the prosecution” favorable 

evidence under Brady).

{¶38} “‘However, “the principles of Brady do not apply unless the evidence 

is material to mitigation, exculpation, or impeachment.”’” Glenn at ¶ 20, quoting 

State v. Griffin, 3d Dist. Allen No. 1-03-31, 2004-Ohio-287, ¶ 9, quoting State v. 

Keene, 81 Ohio St.3d 646, 650 (1998). “‘Evidence is material if there is a 

“‘reasonable probability’” that the result of the trial would have been different had 

the evidence been disclosed to the defense.’” Id. at ¶ 21, quoting State v. Osie, 140 

Ohio St.3d 131, 2014-Ohio-2966, ¶ 153, quoting Kyles v. Whitley, 514 U.S. 419, 

433, 115 S.Ct. 1555 (1995), quoting United States v. Bagley, 473 U.S. 667, 682, 105 

S.Ct. 3375 (1985). “‘“A ‘reasonable probability’ is probability sufficient to 
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undermine confidence in the outcome.”’” Id., quoting Osie at ¶ 153, quoting State 

v. Johnston, 39 Ohio St.3d 48 (1988), paragraph five of the syllabus.

{¶39} The failure to comply with Crim.R. 16 is governed by Crim.R. 

16(L)(1) which provides, in its relevant part:

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.

Crim.R. 16(L)(1). “‘[I]n determining the appropriate sanction, the trial court must 

make an inquiry into the circumstances of the discovery violation.’” State v. Stiles, 

3d Dist. Allen No. 1-08-12, 2009-Ohio-89, ¶ 45, quoting Engle at ¶ 8, citing 

Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 (1987), paragraph two of the syllabus. 

“Further, ‘the trial court “must impose the least severe sanction that is consistent 

with the purpose of the rules of discovery.”’” Id., quoting Engle at ¶ 8, quoting 

Papadelis at paragraph two of the syllabus. 

{¶40} The overriding purpose of Crim.R. 16 “is to prevent surprise and the 

secreting of evidence favorable to one party”—that is, the purpose of the rule “‘is 

to produce a fair trial.’” Engle at ¶ 8, quoting Papadelis at 3. Thus, the failure to 

comply with Crim.R. 16 is error “only when there is a showing that (1) the 

prosecution’s failure to disclose was willful, (2) disclosure of the information prior 

to trial would have aided the accused’s defense, and (3) the accused suffered 
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prejudice.” State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 131, citing 

State v. Parson, 6 Ohio St.3d 442, 445 (1983). 

{¶41} “The trial court’s decision regarding a Crim.R. 16 discovery sanction 

is reviewed under an abuse of discretion standard.” Stiles at ¶ 45. Again, for this 

court to conclude that the trial court abused its discretion, the trial court’s 

determination must be unreasonable, arbitrary, or unconscionable. Adams, 62 Ohio 

St.2d at 157-158. 

{¶42} On appeal, the State contends that the trial court abused its discretion 

by dismissing the indictment in this case because any Crim.R. 16 discovery sanction

under the circumstances is unreasonable, arbitrary, or unconscionable. Specifically, 

the State asserts that the trial court’s decision is unreasonable, arbitrary, or 

unconscionable because it “took what [Gunther] indicated as true and went on to 

insinuate that the State was attempting to hide evidence and/or was providing 

[Gunther] with other documents” even though the State was not “hid[ing] anything 

since nothing was whited out in the documents, and no agreements were made with 

the [confidential sources].” (Appellant’s Brief at 26). 

{¶43} Gunther disputes the State’s argument and contends that the trial court 

did not abuse its discretion by dismissing the indictment in this case because it “took 

incremental steps, including continuances and exclusions, until it could no [sic] 

other action but dismissal.” (Appellee’s Brief at 24). That is, Gunther advocates 

that “[t]he State forced the issue in its steadfast refusal to disclose information 
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related to benefits received by Mr. Ochs and Mr. Mahmoud despite being faced with 

written documentation evidencing the fact that the two were cooperating in 

consideration of pending charges.” (Id.). Gunther further contends that the State’s 

Crim.R. 16 discovery violations were willful since “the discovery violations had 

been ongoing, despite repeated court orders.” (Id. at 21). According to Gunther, the 

undisclosed evidence would have aided his defense because Ochs, “[a]s the 

unindicted ringleader of the alleged criminal conduct, the impeachment of his 

credibility was crucial to [Gunther’s] defense.” (Id. at 22). Finally, Gunther argues 

that he was prejudiced by the State’s untimely disclosure of this evidence because 

“he will be perpetually unable to use information of which he is unaware.” (Id. at 

23).

{¶44} Based on our review of the record, we conclude that the trial court 

abused its discretion by dismissing the indictment in this case because the trial 

court’s Crim.R. 16 discovery sanction is unreasonable under the specific facts and 

circumstances presented. Indeed, even if we assume without deciding that the State 

willfully failed to comply with Crim.R. 16 (or any order issued by the trial court 

under Crim.R. 16), there is no Crim.R. 16 error on behalf of the State. See State v. 

Williams, 10th Dist. Franklin No. 16AP-350, 2018-Ohio-974, ¶ 22 (observing that 

all three factors must be present to demonstrate a Crim.R. 16 discovery violation). 

Critically, based on the facts presented, Gunther was not prejudiced in any 

meaningful way by the State’s alleged belated disclosure. See State v. Harris, 10th 
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Dist. Franklin No. 21AP-678, 2023-Ohio-3994, ¶ 84 (resolving that Harris “was 

[not] prejudiced in any meaningful way by the [State’s] belated disclosure”). See 

also Parson, 6 Ohio St.3d at 445 (analyzing that “there is nothing in the record 

below to indicate that the state’s failure to disclose was a willful violation of Crim.R. 

16 or anything other than a negligent omission on its part”). That is, contrary to 

Gunther’s contention, the disclosure of the BCI Confidential Source packet 

materials would not have aided his defense. See State v. Scoggins, 4th Dist. Scioto 

No. 16CA3767, 2017-Ohio-8989, ¶ 41 (concluding that “disclosure of the document 

prior to trial would not have aided Scoggins’s defense”).

{¶45} Specifically, at the center of the trial court’s decision dismissing the 

indictment in this case is the “[d]ebriefing” memoranda from Brad Doolittle

(“Doolittle”), a special agent with Ohio’s Bureau of Criminal Investigation (“BCI”) 

assigned to the DEA Task Force in Toledo, addressed to his supervisor apprising 

(him) of the status of confidential sources—namely, Ochs and Mahmoud. Each 

document identically statesthat “[t]he [confidential source] has pending charges and 

is providing services and information in consideration of those charges.” (Doc. No. 

115). According to the State, “this is standard form language used by [Doolittle] in 

his [confidential source] packet forms.” (Appellant’s Brief at 25). Nevertheless, 

regardless whether the memoranda reflect “standard form language,” the BCI 

Confidential Source packet materials constitute tenuous impeachment evidence at 

best. See, e.g., State v. Dearing, 8th Dist. Cuyahoga No. 78710, 2001 WL 957690, 
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*5 (Aug. 23, 2001). In other words, the memoranda are not evidence of an 

agreement between the State and Ochs and Mahmoud in exchange for their 

cooperation. That is, while the BCI Confidential Source packet materials evidence 

an understanding between Doolittle and Ochs and Mahmoud, this understanding 

does not evidence the existence of any specific terms of an agreement between the 

State and Ochs and Mahmoud. Critically, the impeachment value of the documents 

is limited since only the prosecutor is authorized to agree to the specific terms of 

such an agreement.

{¶46} Indeed, “‘R.C. 309.08(A) expressly grants the county prosecuting 

attorney the authority to “prosecute, on behalf of the state, all complaints, suits, and 

controversies in which the state is a party.”’” State v. McPherson, 4th Dist. 

Washington No. 18CA4, 2019-Ohio-3482, ¶ 6, quoting State v. Heinz, 146 Ohio 

St.3d 374, 2016-Ohio-2814, ¶ 16, quoting R.C. 309.08(A). See also State v. 

Pittman, 6th Dist. Lucas No. L-15-1043, 2016-Ohio-617, ¶ 10 (“The prosecutor has 

the sole discretion to determine whether to initiate criminal charges.”). “A county 

prosecuting attorney is ‘the only person authorized to enter into a plea agreement 

on behalf of the state with respect to crimes committed wholly’ in the county in 

which the prosecuting attorney has been elected.” McPherson at ¶ 6, quoting State 

v. Billingsley, 133 Ohio St.3d 277, 2012-Ohio-4307, ¶ 38. “Likewise, a county 

prosecuting attorney has authority to enter into non-prosecution agreements which 

‘arises, in part, from the discretion a prosecutor has in initiating a criminal 
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prosecution.’” Id., quoting State v. Moore, 7th Dist. Mahoning No. 06-MA-15, 

2008-Ohio-1190, ¶ 61. 

{¶47} In general, law enforcement does not have the authority to enter into a 

non-prosecution agreement. Pittman at ¶ 10. Specifically, “non-prosecution 

agreements are governed by contract law,” and contract law dictates that “an agent’s 

authority to contract on behalf of its principal is ordinarily limited to the scope of 

the authority granted by the principal.” McPherson at ¶ 8, quoting State v. Parris, 

6th Dist. Ottawa No. OT-14-015, 2014-Ohio-4863, ¶ 12 and Billingsley at ¶ 26. 

Importantly, “‘an agent cannot through [the agent’s] own words and actions create 

apparent authority to bind a principal where there is no evidence that the principal 

permitted the agent to act as if [the agent] had authority.’” Id., quoting Billingsley

at ¶ 39.

{¶48} Decisively, there is no evidence in the record that the prosecuting 

attorney authorized Doolittle to negotiate any agreement with Ochs or Mahmoud on 

behalf of the State. See McPherson at ¶ 8 (analyzing that there was “no evidence 

that the Washington County prosecuting attorney permitted [law enforcement] to 

act as if they had authority to enter a non-prosecution agreement”). Consequently, 

notwithstanding the “standard form language” conveyed in the memoranda, 

Doolittle lacked authority to enter any such agreement on behalf of the Henry 

County prosecutor. See id. at ¶ 10 (concluding “that even if members of law 

enforcement promised McPherson immunity from prosecution in exchange for 
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information, they lacked authority to enter into a non-prosecution agreement on 

behalf of the Washington County Prosecutor”); Pittman at ¶ 10 (resolving that law 

enforcement was “without authority to make decisions regarding whether to 

prosecute Pittman” and that “even if Pittman had done what the officers asked of 

him, there was no enforceable non-prosecution agreement”). Because the 

memoranda are not evidence of any agreement between the State and Ochs or 

Mahmoud, any belated disclosure of the evidence did not prejudice Gunther. See 

State v. Sinbondit, 6th Dist. Fulton No. F-94-028, 1995 WL 112904, *3 (Mar. 17, 

1995). 

{¶49} Furthermore, the record reflects that the evidence was available to 

Gunther. See State v. Collins, 8th Dist. Cuyahoga No. 108878, 2020-Ohio-4136, ¶ 

37 (analyzing whether Collins was prejudiced by the State Crim.R. 16 violation by 

considering that Collins knew that the evidence existed). Importantly, at the 

October 31, 2022 hearing, Doolittle testified that, even though BCI did not provide 

BCI Confidential Source packet materials to the State for the protection of the 

confidential sources, BCI made the packet materials available to Gunther for his 

inspection. Even though Doolittle testified that BCI offered Gunther “the 

opportunity to come review them * * * so it [did not] get distributed beyond the 

scope,” Gunther did not seek to review those materials. (Oct. 31, 2022 Tr. at 43). 

{¶50} Moreover, the record reflects that the trial court “ordered that the State 

make the Confidential Sources available for interview outside the presence of the 
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agents on or before October 10, 2022” to permit Gunther “‘a one-time opportunity 

to have an investigator conduct a Zoom or telephonic interview.’” (Doc. No. 151, 

quoting Doc. No. 72). Critically, the record further reflects that Gunther did not

interview Ochs or Mahmoud. See Scoggins, 2017-Ohio-8989, at ¶ 41 (noting that 

Scoggins was not prejudiced by any discovery violation because “[t]he State 

provided Scoggins with [the State’s witness’s] name and contact information well 

in advance of trial” and that “[t]he defense contacted [the witness] and conducted 

its own pretrial interview”).

{¶51} Encompassing the memoranda, Gunther likewise complained that he 

received discovery that included improperly redacted evidence—that is, he alleged 

that he received evidence that had been redacted using white out. In response to 

these allegations, the State explained that Doolittle “took a previously filled out 

establishment packet that was no longer needed and whited out the filled-out 

portions that contained the previous Confidential Sources [sic] information,” then 

“made multiple copies of the ‘erased’ forms and used those forms for establishment 

packages for future Confidential Sources, which include Ochs and Mahmoud.” 

(Doc. No. 151). Critically, the State asserted that “[n]one of the content of the forms 

was altered, erased, or manipulated as alleged by [Gunther].” (Id.). Indeed, our 

review of the record reveals that, although clumsy, the redacted forms do not reflect

any concealed evidence.
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{¶52} For these reasons, we conclude that any failure by the State to comply 

with Crim.R. 16 as to disclosure of the BCI Confidential Source packet materials 

does not rise to the level of an error since Gunther was not prejudiced by the delayed 

disclosure. See State v. Cheesbro, 4th Dist. Adams No. 95 CA 591, 1996 WL 

107435, *4 (Mar. 4, 1996) (“The trial court’s decision to sanction appellant by 

dismissing the charge was too severe given the nature of the infraction and the nature 

of the evidence at issue.”). Thus, since we conclude that there was no Crim.R. 16 

error, the trial court unreasonably imposed a discovery-violation sanction. 

Consequently, we conclude that the trial court abused its discretion by dismissing 

the indictment in this case. See State v. Zirkle, 4th Dist. Meigs No. 95 CA 21, 1997 

WL 567938, *4 (Aug. 27, 1997); State v. Horton, 90 Ohio App.3d 157, 159-161 

(10th Dist.1993).

{¶53} Accordingly, the State’s assignment of error is sustained. 

{¶54} Having found error prejudicial to the appellant herein in the particulars 

assigned and argued in its assignment of error, we reverse the judgment of the trial 

court and remand for further proceedings.

Judgment Reversed 

and Cause Remanded

WILLAMOWSKI, P.J. and MILLER, J., concur.

/hls