[Cite as State v. Darmond, 2011-Ohio-6160.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

Nos. 96373 and 96374 

STATE OF OHIO 

PLAINTIFF-APPELLANT

vs. 

DEMETRIUS DARMOND

 DEFENDANT-APPELLEE

 JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-540709 

BEFORE: Jones, J., Boyle, P.J., and Sweeney, J. 

 

RELEASED AND JOURNALIZED: December 1, 2011 
ATTORNEYS FOR APPELLANT 

William D. Mason 

Cuyahoga County Prosecutor 

BY: Matthew Waters 

Assistant County Prosecutor 

The Justice Center, 8th Floor 

1200 Ontario Avenue 

Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Patricia J. Smith 

4403 St. Clair Avenue 

The Brownhoist Building 

Cleveland, Ohio 44103 

Jeffrey P. Hastings 

50 Public Square 

Suite 3300 

Cleveland, Ohio 44113 

LARRY A. JONES, J.: 

{¶ 1} Plaintiff-appellant, the state of Ohio, appeals from the trial court’s judgment 

dismissing the case with prejudice for a discovery violation. We affirm. 

I. Procedural History and Facts 

{¶ 2} Defendants-appellees, Demetrius Darmond and Iris Oliver, were jointly 
indicted in August 2010. Both defendants were charged with drug trafficking and drug 

possession, and Darmond was additionally charged with possessing criminal tools and 

endangering children.1

 The charges stemmed from the controlled delivery of a FedEx 

package containing marijuana to 16210 Huntmere, Cleveland, Ohio. 

{¶ 3} The defendants waived their right to a jury trial and the case proceeded to a 

bench trial. The state presented the testimony of Special Agent Patricia Stipek. On 

March 13, 2010, Stipek was involved with a package interdiction at a FedEx facility. 

She retrieved three packages at that time, including the one destined for 16210 Huntmere; 

it was addressed to “Tasha Mack.” The packages were all destined for different 

addresses. They all had similar packaging. 

{¶ 4} Stipek obtained a search warrant for the package destined for Huntmere. 

Inside was a package wrapped in happy birthday paper and an envelope; marijuana was in 

the envelope. 

{¶ 5} On March 17, 2010, Stipek did another package interdiction at the same 

FedEx facility and retrieved four packages, including the targeted one that was addressed 

to “Sonya Byrd” at 16210 Huntmere. Stipek testified that the four packages were 

similar to the packages she had retrieved on March 13. 

{¶ 6} The special agent obtained a search warrant for the second package destined 

for Huntmere. The contents were similar to the first package destined for Huntmere — a 

 1

Darmond had previously been under indictment in Case No. CR-535469 for the same 

charges. That case was dismissed without prejudice by the state on August 9, 2010, “for further 

investigation.” The state re-indicted him in this case on August 11, 2010. 
package wrapped in happy birthday paper and an envelope with marijuana in it. 

{¶ 7} Stipek made a separate report for each of the seven packages, but with the 

exception of the two Huntmere packages, did not reference the other packages. The 

record demonstrates that neither the state nor defense had knowledge of the other five 

packages. Stipek did not have the additional reports with her at trial and was unable to 

testify about any investigation relative to those packages. Because of this “surprise,” the 

defense moved to dismiss the case. The court held the request in abeyance, allowed for 

complete examination of Stipek, then reconsidered the defense request and granted it. 

{¶ 8} In dismissing the case, the trial court stated the excluded evidence “could be 

inculpatory or exculpatory.” The court rationalized its decision as follows: 

{¶ 9} “All seven of the boxes were very similar in nature and all were the same 

box size. All seven of them were addressed and came from either the Phoenix or 

Tempe, Arizona area from a Kinko’s store. 

{¶ 10} “All of them were handwritten with the same handwriting. Possibly the 

inside packaging on some of them were not exactly the same, but all of them came in a 

very similar packaging, birthday packaging, birthday cards, and so forth. 

{¶ 11} “To then relate these seven boxes together, [ ] I believe all the other 

information should have been supplied, the reports, the addresses, the names, the 

investigation, whether there were charges, and quite possibly maybe if there was an 

indictment, which I don’t know if there was or wasn’t, and I don’t think anyone can speak 

to that. 
{¶ 12} “* * * [D]id someone own up to a scheme that maybe would have been 

information and evidence that could have been brought in here and testimony by another 

person to exonerate the two individuals that were charged in this case?” 

{¶ 13} The state’s sole assigned error reads: “The trial court abused its discretion 

in declaring a mistrial and by dismissing the state’s case with prejudice due to an 

inadvertent discovery violation.” 

II. Law and Analysis 

{¶ 14} Crim.R. 16 governs discovery in criminal cases and states that the purpose 

of discovery 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.” Crim.R. 16(A). If a party fails to comply with Crim.R. 16’s discovery 

requirements, a trial court “may 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.” 

Crim.R. 16(L). It is within the trial court’s sound discretion to decide what sanction to 

impose for a discovery violation. Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, 3, 

511 N.E.2d 1138. Therefore, a trial court’s discovery sanction will not be overturned 

unless it was unreasonable, unconscionable, or arbitrary. State v. Engle, 166 Ohio 

App.3d 262, 2006-Ohio-1884, 850 N.E.2d 123, ¶7. 

{¶ 15} Citing Lakewood, the state contends that the trial court abused its discretion 
by not imposing a less severe sanction than dismissal with prejudice. This court 

addressed the “least restrictive sanction” element of Lakewood in State v. Jones, 183 Ohio 

App.3d 189, 2009-Ohio-2381, 916 N.E.2d 828, stating the following: 

{¶ 16} “The holding in Lakewood must be read in conjunction with its facts. In 

Lakewood, the defense failed to respond to the prosecution’s demand for discovery. At 

trial, the state objected when the defense called its first witness, arguing that the state had 

not been provided with a witness list. The trial court then excluded the testimony of all 

defense witnesses as a sanction for the failure to respond to the state’s discovery request. 

The defense attorney proffered the testimony of the two witnesses he was precluded from 

calling. 

{¶ 17} “The Ohio Supreme Court explained that the excluded testimony was 

material and relevant to the offense charged, and if believed, the defendant may have 

been acquitted. Consequently, the court concluded that the exclusions denied the 

defendant his Sixth Amendment right to present a defense. The court recognized that 

the state has a compelling interest but explained that any infringement on a defendant’s 

constitutional rights caused by a sanction must be afforded great weight. The court held 

that ‘a trial court must inquire into the circumstances surrounding a discovery rule 

violation and, when deciding whether to impose a sanction, must impose the least severe 

sanction that is consistent with the purpose of the rules of discovery.’ The court also 

stated: ‘We emphasize that the foregoing balancing test should not be construed to 

mean that the exclusion of testimony or evidence is never a permissible sanction in a 
criminal case. It is only when exclusion acts to completely deny defendant his or her 

constitutional right to present a defense that the sanction is impermissible.’” Jones at 

¶10-11, quoting Lakewood at paragraph two of the syllabus and at ¶5. 

{¶ 18} In Jones, this court cited a Seventh Appellate District case, State v. Crespo, 

Mahoning App. No. 03 MA 11, 2004-Ohio-1576, wherein the court held that “[c]ommon 

sense dictates that the [holding in Lakewood] does not mean that a trial court must impose 

the ‘least severe sanction’ in every case. Otherwise, dismissal of an indictment could 

never be an appropriate sanction as there will always be a sanction less severe. 

Similarly, a jail term for contempt could be eliminated as an option because there are a 

plethora of less severe sanctions available.” Crespo at ¶8; Jones at ¶12. The Seventh 

District further noted that a distinction exists in cases, unlike Lakewood, where the state 

fails to provide discovery, as opposed to cases where the defendant violated the discovery 

rules as in Lakewood. Crespo at ¶11 (“Therefore, the holding in Lakewood is not 

directly applicable in cases where sanctions are imposed upon the prosecution.”) 

{¶ 19} The state also contends that both it and the defense were surprised by the 

additional evidence, and absent a finding by the trial court that the additional evidence 

was exculpatory, and thus that the lack of knowledge was prejudicial to the defense, the 

court abused its discretion. The record is clear that both the prosecution and the defense 

were surprised by the additional evidence, but the fact that the state was surprised did not 

lessen the purposes of discovery, which in part, is to “protect the integrity of the justice 

system and the rights of defendants.” Crim.R. 16(A). When potentially exculpatory 
evidence is at issue, “the prosecutor may not hide behind the shield of innocence, 

claiming that the police failed to advise him of such evidence. Whether the 

non-disclosure is the responsibility of the officer or the prosecutor makes no difference. 

It is the government’s failure that denies the accused the process due him.” State v. 

Sullivan (Aug. 6, 1990), Tuscarawas App. No. 89AP120094, citing United States ex rel. 

Smith v. Fairman (1985), 769 F.2d 386. 

{¶ 20} In regard to the nature of the evidence, that is, whether it was exculpatory or 

inculpatory, we are not able to make that determination. The trial court correctly stated 

that the evidence could have been exculpatory or inculpatory. Whatever its nature, it 

was discoverable, a point conceded by the state. 

{¶ 21} We are not persuaded by the state’s reliance on State v. King, Muskingum 

App. No. CT2010-0010, 2010-Ohio-5701. In King, the defendant was charged with 

theft. In its opening statement, the state made reference to text messages sent by the 

defendant to the victim without objection from the defense. During the defense’s voir 

dire and opening statement, counsel several times stated that the defendant was going to 

take the stand and tell her side of the story. Defense counsel also stated that the 

defendant had a prior theft conviction. 

{¶ 22} The state’s first witness to testify was the victim. The victim testified 

about the incident and also stated that after the incident the defendant sent her text 

messages apologizing for the incident. The defense did not object while the victim was 

testifying, but at the conclusion of the state’s direct examination of her, it alerted the court 
that it had not received the text messages during discovery and requested a mistrial. The 

state acknowledged that it had committed “an oversight in the discovery process.” Id. at 

¶31. The trial court granted the defense’s motion and dismissed the case with prejudice, 

stating that the “act of the State hints toward intentional overreaching to gain an unfair 

tactical advantage.” Id. at ¶11. 

{¶ 23} The Fifth Appellate District found that the trial court abused its discretion. 

Specifically, the court found there was no evidence that the state’s mistake was an 

intentional oversight. The court also noted that the defense did not timely object. This 

case differs from King. 

{¶ 24} In King, the evidence was inculpatory, while here it was not certain whether 

the evidence was inculpatory or exculpatory. Moreover, further investigation into the 

matter was likely not needed in King, whereas further investigation would have been 

needed in this case. Additionally, the court here did not find that the state’s act was 

intentional despite a lack of evidence on that. Rather, the court here found that the 

evidence was relevant evidence to which the defense was entitled for further 

investigation, irrespective of how it came to be overlooked. 

{¶ 25} The record here evidences that the trial court gave careful and deliberate 

consideration to the defense’s request for a mistrial. “[T]he trial court is in far the better 

position to monitor the criminal process. When he elects to exercise discretion we are 

well advised to recognize and honor it in the absence of error of law.” Sullivan, supra, 

citing State v. Everhart (July 23, 1990), Tuscarawas App. No. 89-AP-40036. 
{¶ 26} On the record before us, we cannot find that the trial court abused its 

discretion, especially in light of the fact that the state had already indicted and dismissed 

charges against Darmond for “further investigation,” and then two days later re-indicted 

him and Oliver, his mother-in-law. The state’s sole assignment of error is therefore 

overruled. 

Judgment affirmed. 

 It is ordered that appellee recover of 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. 

 

LARRY A. JONES, JUDGE 

MARY J. BOYLE, P.J., and 

JAMES J. SWEENEY, J., CONCUR