[Cite as State v. Wilcoxson , 2021-Ohio-4339.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. KEY’AUDI WILCOXSON Defendant-Appellant : : : : : : : : : : Appellate Case No. 29053

Trial Court Case No. 2021-CRB-1 (Criminal Appeal from Municipal Court)

. . . . . . . . . . . O P I N I O N Rendered on the 10th day of December, 2021.

. . . . . . . . . . . STEPHANIE L. COOK, Atty. Reg. N o. 0067101 and ANDREW D. SEXTON, Atty. Reg. No. 0070892, City of Dayton Prosecutor’s Office, 335 West Third Street, Room 390, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, B eavercreek, Ohio 45434 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

WELBAUM, J.-2-

{¶ 1} Defendant-appellant, Key’Audi Wilcoxson, appeals from his convi ction for aggravated menacing following a bench trial in the Dayton Munic ipal Court. In support of his appeal, Wilcoxson argues that his trial counsel provided ineffective assistance by failing to move for a trial continuance and by failing to file a timely jury demand.

Wilcoxson also contends that he was denied his constitutional r ight to due process as a result of the State’s failure to provide certain video evidence in discovery. For the reasons outlined below, the judg ment of the trial court will be affirmed.

Facts and Course of Proceedings {¶ 2} On January 1, 2021, Wilcoxson was charged by complaint with one count of aggravated menacing in violation of R.C. 2903.21(A), a misdemea nor of the first degree, and one count of menacing in violation of R.C. 2903.22, a misde meanor of the fourth degree. The charges stemmed from allegations that Wilcoxson ma de threats of serious physical harm to an employee of a laundromat where Wilcoxson wa s allegedly loitering. Wilcoxson pled not guilty to the charges, and his case was set for a trial. {¶ 3} Wilcoxson’s trial was originally scheduled for January 14, 2021 but was later continued to January 27, 2021. On January 22, 2021, the Januar y 27th trial date was

removed from the trial court’s schedule. Before a new trial da te was scheduled, on February 3, 2021, Wilcoxson filed a handwritten letter requesti ng that the trial court remove his appointed counsel on grounds that counsel was not co mmunicating with him. On February 17, 2021, the trial court removed Wilcoxson’s couns el and appointed new counsel to represent him. Also on February 17th, the trial cou rt sent a notice to-3- Wilcoxson in jail notifying him that his trial date had been re scheduled for February 25,

2021. {¶ 4} At trial, Wilcoxson’s newly appointed counsel made an oral dema nd for a jury trial and filed a written jury demand later the same day. The trial court found that the jury demand was untimely and declined to delay Wilcoxson’s trial any further. The matter

was then tried to the bench as scheduled. {¶ 5} The State’s first trial witness was Tane Smith, who owned a lau ndromat in Dayton called “At Your Service Coin Laundry.” Smith testified that when she arrived at the laundromat at 1:10 p.m. on January 1, 2021, she observed Wi lcoxson inside the laundromat. Smith testified that when she initially saw Wilcox son, she noticed that he was following a lady around. However, Smith testified that she eventually saw Wilcoxson put a load of laundry into a washer sometime before she left th e laundromat at 2:00 p.m. Smith testified that while she was away, she remotely monitored the laundromat’s security cameras using her cell phone; when she checked the cameras at 3 :30 p.m. she saw that

Wilcoxson was still inside the laundromat. Smith testified tha t she then contacted her on-duty employee, Sarah Wagner, and asked Wagner to tell Wilcox son to leave the premises. {¶ 6} The State also called Wagner to testify at trial. During her t estimony, Wagner confirmed that Smith had asked her to tell Wilcoxson to leave the laundromat. Wagner testified that she approached Wilcoxson shortly before 4 p.m. and advised him that he had to leave the premises because he had been there for multiple hours. Wagner testified that Wilcoxson’s response was that “he didn’t have to fucking leave” and that “no one could make him leave.” Trans., p. 27. Wagner testified th at she called Smith back-4- and advised her that Wilcoxson refused to leave the laundromat. Wagner testified that Smith instructed her to call the police in order to have Wilcox son removed from the premises, and Wagner called the police as instructed by Smith. {¶ 7} Wagner testified that, after she called the police, Wilcoxson t old her that he would “punch” and “kill” her and that she “w ould only bleed out for two minutes.” Id . at 28. Wagner testified that these threats were made while she wa s standing by the laundromat’s office and while Wilcoxson was standing 20 to 25 f eet away at the front of the laundromat. Wagner testified that she believed Wilcoxson’s threats and therefore called the police a second time, because she feared that Wilcox son was going to hurt her. {¶ 8} Continuing, Wagner testified that after making her second call to the police, Wilcoxson began to approach her by the laundromat’s dryers. Wa gner testified that as Wilcoxson approached her, he had something in his hand that loo ked like a knife. The “knife” was identified by Wagner at trial, and it is best descr ibed as a serrated cheese spreader. See State’s Exhibit 1. Wagner testified that she told Wilcoxson t o back up as he was approaching her with the cheese spreader. Wagner tes tified that as Wilcoxson was approaching her, a patron of the laundromat, late r identified as Carlos Brewer, intervened. According to Wagner, Brewer and Wilcoxson began exchanging words, and Wilcoxson pulled out a hammer and attempted to hit B rewer with it. The hammer was also identified by Wagner at trial and admitted into evidence as State’s

Exhibit 2. {¶ 9} Wagner testified that she observed Brewer take the hammer from Wilcoxson and throw the hammer outside across the parking lot; Wilcoxson and Brewer then began fighting with each other outside. Wagner testified that Brewer eventually reentered the-5- laundromat, and Wilcoxson followed him. At that time, Wagner s aw Wilcoxson pull out the cheese spreader again. Wagner testified that Wilcoxson cut Brewer on the arm and forehead with the cheese spreader. Thereafter, Wagner saw Wilc oxson go outside and throw the cheese spreader and hammer on the roof of the laundro mat. Wagner testified that Wilcoxson then came back inside the laundromat and began c alling her a whore and a drug user. {¶ 10} Wagner testified that the entire incident with Wilcoxson lasted about an hour and that she was concerned for her safety the entire time; she believed that Wilcoxson would actually hurt her given his angry, aggressive demeanor. Wagner testified that she was very scared at the time of the incident and that she was st ill scared of Wilcoxson. {¶ 11} The State next presented testimony from Officer Gregory Paxton of the Dayton Police Department. Officer Paxton testified that he was the first officer to arrive at the laundromat after Wagner’s call. Officer Paxton testifie d that upon his arrival, he was approached by a very agitated Wilcoxson, and Wilcoxson told him that he threw the hammer and cheese spreader on the roof of the laundromat in ord er to get them away

from Brewer. Officer Paxton tes tified that the fire department recovered the hammer and cheese spreader from the roof, and that his fellow officer, Off icer Hubbard, placed the hammer and cheese spreader in the police department’s property room. {¶ 12} Officer Paxton also testified to transporting Wilcoxson to jail in his police cruiser. Officer Paxton recalled speaking to Wilcoxson during the transport and noted that Wilcoxson had told him that he wanted to press charges aga inst Brewer. On crossexamination, Officer Paxton confirmed that his police cruiser w as equipped with cameras for video and audio recording.-6- {¶ 13} The State also presented testimony from Officer Phillip Hubbard of the Dayton Police Department. Officer Hubbard testified that when he arrived at the scene, he took witness statements from Wagner, Brewer, and Smith. Off icer Hubbard testified that after taking the witness statements, it was decided that W ilcoxson was going to jail.

Officer Hubbard testified that when he advised Wilcoxson that h e was going to jail, Wilcoxson attempted to kick the windows out of Officer Paxton’s police cruiser. Officer

Hubbard testified that when he instructed Wilcoxson to cease an d desist, Wilcoxson

claimed to be a violent individual and indicated that he would not stop kicking the

windows. Officer Hubbard also confirmed that he had collected the cheese spreader and hammer from the fire department and had placed those items in t he police department’s property room. {¶ 14} The last witness at trial was Wilcoxson, who testified in his o wn defense.

Wilcoxson testified that he was homeless and that he was at the laundromat on the day in question for purposes of laundering his multiple layers of c lothing that were wet from the rain. Wilcoxson testified that a laundromat employee, Wagn er, initially approached him outside while he was smoking and drinking with a lady who w as also at the laundromat. According to Wilcoxson, Wagner told him that he wa s loitering and needed to “mother fucking leave.” Trans., p. 87-88. Wilcoxson also c laimed that Wagner told him: “[I]f you won’t leave, I’m gonna call my sons and my boyfr iend, my husband.” Id . at 88. Wilcoxson testified that he looked at Wagner like she was crazy because he was still doing his laundry. Wilcoxson testified that he told Wagn er: “Bitch you ain’t talking to me. * * * You talking to me sideways. I’m not loitering. I’m paying--I’m an actual paying

customer.” Id . at 88-89.-7- {¶ 15} Wilcoxson testified that he and Wagner continued their argument inside the laundromat. Wilcoxson claimed that Wagner told him that her bo yfriend or husband was going to “fuck [him] up * * * because [he] was disrespecting he r.” Id . at 89. Wilcoxson testified that he told Wagner that he doesn’t “fear nobody but God and the police” and that Wagner could call whoever she wanted to call. Id . Wilcoxson testified that he then went back outside to smoke more cigarettes while Wagner called the police. Wilcoxson testified that while he was outside, he placed a hammer that he carried for protection upside down on the sidewalk. Wilcoxson testified that he did t his because he had a violent history and did not want the police to tase or shoot hi m for having a weapon. {¶ 16} Wilcoxson testified that when he went back inside the laundroma t, he noticed that Wagner had stopped the dryer in which he had been drying his clothes. Wilcoxson testified that he began cussing at Wagner and said: “ Bitch, why you touching my clothes.” Id . at 91. Wilcoxson testified that he then went back outside an d noticed that his hammer was missing. Wilcoxson testified that a patron of the laundromat, Brewer, then came from behind the laundromat building and said: “Yeah, bitch I got your

hammer now.” Id . at 92. {¶ 17} Wilcoxson testified that he and Brewer started fighting outside and that Brewer swung the hammer at him. Wilcoxson claimed that he defl ected Brewer’s swing with his arm and scratched Brewer on the head in the process. Wilcoxson also claimed that he pulled out the cheese spreader and threw it on the roof of the laundromat because he realized a cheese spreader was not going to help him defend himself against a hammer. Wilcoxson testified that he eventually took the hammer away from Brewer and threw it on the roof of the laundromat too. Continuing, Wilcox son testified that the police-8- arrived shortly after he threw the cheese spreader and hammer o n the roof. According to Wilcoxson, the police arrested him before he could tell them what happened. Wilcoxson claimed that as he was getting arrested, he asked the officers to get video footage from surveillance cameras that he observed outside the businesses surrounding the laundromat, so that he could prove that he had been defendi ng himself against Brewer. Wilcoxson also confirmed that Wagner was not outside f or most of the altercation, and that he and Wagner had only exchanged threats. {¶ 18} On cross-examination, Wilcoxson admitted that he “went crazy” a nd verbally threatened Wagner after she had threatened to have him removed from the laundromat. Trans., p. 98. Wilcoxson, however, claimed that h e could not remember exactly what he said when he threatened Wagner. Wilcoxson also admitted to saying that he was violent when Officer Hubbard asked him to stop kick ing the back of the

cruiser. {¶ 19} Throughout the trial, Wilcoxson raised objections concerning th e video evidence that was discussed during the trial testimony. Wilcox son advised the trial court that the State had not provided him with the video footage from the laundromat’s security cameras, the video footage from Officer Paxton’s police cruiser , or any surveillance video footage from the businesses surrounding the laundromat. Wilcox son argued that the foregoing video evidence would ha ve bolstered his credibility a nd contradicted the State’s witnesses. Wilcoxson also argued that the video footage from t he laundromat’s security

cameras would have been the best evidence of his altercation wi th Wagner. Wilcoxson clarified that he was not raising a discovery violation under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), but simply claimed th at he was prejudiced by-9- the State’s failure to provide the aforementioned video evidenc e. {¶ 20} In response, the State indicated that it did not provide the vi deo evidence to

Wilcoxson because none of the video evidence was in the State’s possession. The State explained that it did not know about the laundromat security ca mera footage until the owner of the laundromat, Smith, testified at trial. On cross-e xamination, Smith testified that she left a voicemail with the police department advising t hat she had the laundromat security camera footage on a USB drive at her office, but she c laimed that no one from the police department ever collected the USB drive. The State, therefore, advised the trial court that it had never received any surveillance videos from the police department. {¶ 21} The State also indicated that it had never obtained the video f ootage from Officer Paxton’s police cruiser bec ause the aggravated menacing and menacing offenses at issue occurred prior to Wilcoxson’s interaction with police. The State noted that Wilcoxson never requested the video footage in discovery and th at it would have provided Wilcoxson with the cruiser camera footage if Wilcoxson had aske d for it. {¶ 22} After hearing the parties’ arguments, the trial court noted Wil coxson’s objection to the video evidence for the record but ultimately d etermined that the video evidence at issue would not have corroborated or supported eith er party’s case. The trial court found that the State would have been required to tu rn over the laundromat security camera footage to Wilcoxson had it been in the State’s possession. However, since it wasn’t in the State’s possession, and since there was nothing on the record indicating that the laundromat security camera footage was equi pped with audio, the trial court found that the witnesses’ testimony was sufficient eviden ce of the statements made during the altercation.-10- {¶ 23} After the defense rested, and after the trial court addressed W ilcoxson’s arguments, the trial court found Wilcoxson guilty of both aggra vated m enaci ng and menacing. Thereafter, the State advised the trial court that t he two offenses should merge into one conviction and that the State would like to have Wilcoxson convicted for aggravated menacing. The trial court agreed that a merger of t he offenses was appropriate and thereafter sentenced Wilcoxson for aggravated m enacing as elected by the State. The trial court sentenced Wilcoxson to 180 days in jail with 40 days suspended and 68 days of jail-time credit. The trial court als o ordered Wilcoxson to pay a $25 fine and court costs. {¶ 24} Wilcoxson now appeals from his conviction, raising two assignme nts of

error for review.

First Assignment of Error {¶ 25} Under his first assignment of error, Wilcoxson contends that hi s trial counsel provided ineffective assistance because counsel failed to move for a trial continuance despite counsel’s entering the case only a week before trial. Wilcoxson also contends

that his trial counsel was inef fective for failing to file a ti mely jury demand. {¶ 26} In order to succeed on an ineffective assistance claim, a defen dant must establish: (1) his trial counsel’s performance was deficient; a nd (2) the deficient performance prejudiced him. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. The failure to make a showing of either deficient performance or prejudice defeats a claim of ineffective-11- assistance of counsel. Strickland at 697. {¶ 27} To establish deficient performance, a defendant must show that his trial counsel’s performance fell below an objective standard of reaso nable representation. Id

. at 688; Bradley at 142. In evaluating counsel’s performance, a reviewing cour t “must indulge in a strong presumption that counsel’s conduct falls wi thin the wide range of reasonable professional assistance.” Strickland at 689. “[A] debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of

counsel.” State v. Woullard , 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 37 (2d Dist.), citing Strickland at 689. (Other citation omitted.) To establish prejudice, a defendant must show that there is “a reasonable probability t hat, but for counsel’s errors, the proceeding’s result would have been different.” State v. Hale , 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. {¶ 28} As previously noted, Wilcoxson first claims that his trial coun sel provided ineffective assistance by failing to move for a trial continuan ce. However, “the decision whether to request a trial continuance is debatable, and involv es a strategic choice of

counsel that falls ‘within the r ealm of trial strategy and tact ics that will not ordinarily be disturbed on appeal.’ ” State v. Wynn , 2d Dist. Montgomery No. 25097, 2014-Ohio-420, ¶ 90, quoting State v. Warner , 8th Dist. Cuyahoga No. 95750, 2012-Ohio-256, ¶ 11, citing State v. Pasqualone , 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270 and State v.

Frazier , 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263. Because “requesting continuances is a matter of trial tactics and strategy, * * * w e will not second-guess trial counsel’s decision in this regard.” Id. at ¶ 5. Therefore, Wilcoxson has failed to-12- establish deficient performance on the part of his trial counse l. {¶ 29} Wilcoxson also cannot establish that the outcome of his case wo uld have been different had his counsel requested a trial continuance; i t is pure speculation as to whether the trial court would have granted a trial continuance if one had been requested. “Such speculation is insufficient to establish ineffective assi stance.” State v. Short , 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 119, quoting State v. Perez , 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 217, citing State v. Were , 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 219 and State v. Elmore , 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 121. As a result, Wilco xson also cannot establish that he was prejudiced by his trial counsel’s failure to request a trial continuance. Therefore, Wilcoxson’s first ineffective assistance claim lacks merit. {¶ 30} For his second ineffective assistance claim, Wilcoxson contends that his trial counsel performed deficiently and prejudiced him by faili ng to file a timely jury demand. Crim.R. 23(A) provides that “[i]n petty offense cases, where there is a right of jury trial, the defendant shall be tried by the court unless he demands a jury trial.” A jury demand “must be made in writing and filed with the clerk of cou rt not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later.” Crim.R. 23(A). “[A] defendant charged with a misdemeanor waives the right to a jury trial unless he makes a timely written demand in accordance with Crim.R. 23(A).” (Citations omitted.) State v. Matthews , 2d Dist. Greene No. 2015-CA-73, 2016-Ohio-5055, ¶ 11. The time limits s et forth in Crim.R. 23(A) “are to be computed with respect to the last scheduled tr ial date.” City of Tallmadge v. DeGraft-Biney , 39 Ohio St.3d 300, 530 N.E.2d 1310 (1988), syllabus.-13- Therefore “a continuance of the trial will renew the time withi n which to file a jury demand.”

Id

. {¶ 31} In this case, Wilcoxson was tried for first-degree misdemeanor aggravated menacing and fourth-degree misdemeanor menacing, both of which were petty offenses with a right to jury trial. See Crim.R. 2(D) and R.C. 2945.17(A) and (B). Therefore, Wilcoxson was required to file a timely, written jury demand in order to receive a jury trial for those offenses. Crim.R. 23(A). The record indicates that the trial court sent a notice to Wilcoxson on February 17, 2021, informing him that his trial was rescheduled for February 25, 2021. Given the timing of that notice, Wilcoxson was required to file a written jury demand “on or before the third day following the r eceipt of notice of the date set for trial.” Crim.R. 23(A). Wilcoxson therefore had three days from February 17, 2021, to file his jury demand, which was February 20, 2021. Be cause February 20, 2021, fell on a Saturday, pursuant to Crim.R. 45(A), Wilcoxson had until Monday, February 22, 2021, to file his jury demand. {¶ 32} There is no dispute that Wilcoxson’s trial counsel filed an unt imely jury demand on the day of Wilcoxson’s February 25th trial. However, even if we assume that Wilcoxson’s trial counsel performed deficiently in that regard, the test for ineffective assistance is whether any prejudice arose from counsel’s defici ent performance . State v. Ware, 2d Dist. Darke No. 2018-CA-8, 2019-Ohio-2595, ¶ 31, citing Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373, at paragraph two of the syllabus. {¶ 33} In this case, Wilcoxson has not established that he suffered an y prejudice as a result of his trial counsel’s performance. More specifica lly, Wilcoxson has not

demonstrated that the outcome of his trial would have been diff erent had his trial counsel-14- filed a timely jury demand. The mere fact that Wilcoxson could have had a jury trial had his counsel filed a jury demand does not establish prejudice. See State v. Escobar , 1st Dist. Hamilton Nos. C-200423, C-200424, 2021-Ohio-4001, ¶ 28, c iting State v. Fitzgerald , 9th Dist. Summit No. 22381, 2005-Ohio-2411, ¶ 13 (“merely arg u[ing] that he could have had a jury trial had his counsel filed a demand noti ce * * * fails to establish prejudice”) and State ex rel. Maxwell v. Trikilis , 9th Dist. Medina No. 06CA0071-M, 2007- Ohio-1355, ¶ 27 (“[w]ith respect to a jury demand, Appellant ha s failed to demonstrate

that the result of his bench trial would have been different bu t for his counsel's failure to make a jury demand”). Accord State v. Stroud , 11th Dist. Ashtabula No. 2017-A-0028, 2018-Ohio-904, ¶ 27; State v. Bullard , 9th Dist. Wayne No. 20AP0032, 2021-Ohio-4044, ¶ 23. {¶ 34} Furthermore, at trial, Wilcoxson admitted to verbally threateni ng Wagner on the day in question and to telling the police that he was a vio lent person. Wagner also unequivocally testified that Wilcoxson threatened to punch and kill her and that she believed those threats due to Wilcoxson’s angry, aggressive dem eanor. Given the testimony presented at trial, especially Wilcoxson’s admission to threatening Wagner, we find that Wilcoxson has not demonstrated a reasonable probabili ty that the outcome of his trial would have been different had his counsel filed a jur y demand. See Ware at ¶ 30 (finding that the evidence against defendant was so overwh elming that there was no reasonable probability that the r esult of the proceedings would have been different absent counsel’s failure to file a timely jury demand). Because Wilco xson has not established prejudice arising from counsel’s failure to file a jury demand, his second ineffective

assistance claim also lacks merit.-15- {¶ 35} Wilcoxson’s first assignment of error is overruled.

Second Assignment of Error {¶ 36} Under his second assignment of error, Wilcoxson argues that his conviction should be reversed because his constitutional right to due proc ess was violated as a result of the State failing to turn over: (1) the video footage recorded by the laundromat’s security cameras; (2) the video footage recorded in Officer Pax ton’s police cruiser; and (3) the video footage recorded by businesses surrounding the la undromat. We note that Wilcoxson’s due process argument is not based on an alleged vio lation of Brady , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, i.e., that the State wi thheld exculpatory evidence in discovery. Instead, Wilcoxson argues that the State’s failu re to provide him with the video evidence in discovery and the trial court’s decision to p roceed with trial despite his never receiving the video evidence prejudiced him and denied hi m due process. We, however, disagree. {¶ 37} Discovery in a criminal case is governed by Crim.R. 16. Pursua nt to Crim.R. 16(B), the prosecution must provide any evidentiary mat erials “which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial” upon written request of the defendant. If a party fails to comply with the disclosure requirements of Crim.R. 16, the trial court has the discretion to “order such party to permit the discovery or inspection, grant a continuanc e, or prohibit the party from introducing in evidence the material not disclosed, or it may m ake such other order as it deems just under the circumstances.” Crim.R. 16(L)(1). {¶ 38} A violation of Crim.R. 16 does not necessarily amount to a due process-16- violation. State v. Long , 2d Dist. Greene No. 2010-CA-47, 2011-Ohio-4293, ¶ 19 (finding that “while the State’s failure to provide [video evidence] con stituted a violation of the discovery rules, we find no basis to conclude that [the defenda nt’s] constitutional rights were violated by the State’s failures and the trial court’s sub sequent orders limiting the State’s disclosure obligations,”); Kyles v. Whitley , 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), citing U.S. v. Bagley , 473 U.S. 667, 675 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (“the Constitution is not violated every time the go vernment fails or chooses not to disclose evidence that might prove helpful to the defens e.”). This court has explained that “[t]he failure to provide copies [of video evide nce in discovery] may result in a denial of due process[,]” but that such a failure “is not a per se denial of the right to due process; there must be evidence of some prejudice to the de fendant.” (Citations omitted.) Long at ¶ 21. {¶ 39} The trial court’s response to an alleged discovery violation un der Crim.R.

16 is reviewed for an abuse of discretion. State v. Parson , 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983). “A trial court abuses its discretion when i t makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted .) State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. “An abuse of discretion includes a situation in which a trial court did not engage in a ‘ “sound reasoning process.” ’ ” Id ., quoting State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “Abuse-of-discretion re view is deferential and does not permit an appellate court to simply substitute its jud gment for that of the trial

court.” Id

.-17- {¶ 40} In this case, Wilcoxson conceded at trial that the State’s fail ure to provide the video evidence in discovery was not due to a dereliction of the State’s obligation to provide discovery. See Trans., p. 77. In addition, the record establishes that the St ate did not provide the video evidence to Wilcoxson because the vid eo evidence was either unknown to the State and/or never in the State’s possession. T he record also establishes that Wilcoxson’s discovery request did not specific ally request any of the video evidence at issue. Accordingly, there appears to be no v iolation of the State’s obligations under Crim.R. 16. While the police department’s fa ilure to collect the video footage from the laundromat’s security cameras may have constit uted sloppy police work, there is nothing in the record to indicate that the police’s fa ilure to retrieve that footage was purposeful or in bad faith. {¶ 41} In any event, we find that Wilcoxson was not prejudiced by the lack of video evidence in question and that the trial court did not abuse its discretion when it found that the video evidence would not have corroborated either party’s v ersion of the relevant events. Although the video footage from the laundromat’s secur ity cameras would have showed the altercation between Wilcoxson and Wagner, the trial court correctly

determined that it was never established on the record that the video was equipped with

audio. See Trans., p. 37. Without audio, the video would have had little value, since it was undisputed that Wilcoxson and Wagner had an altercation ins ide the laundromat on the day in question and that Wilcoxson verbally threatened Wagn er. Therefore, the video would only have been helpful if it had audio, as it could have been used to determine whether Wilcoxson threatened to cause Wagner serious, physical harm. Since it was not established that the video was equipped with audio, the tri al court reasonably relied-18- on the witnesses’ testimony to determine what statements were m ade during the altercation. Because it is highly unlikely that the video foot age from the laundromat’s security cameras would have aided Wilcoxson’s defense, and give n that Wilcoxson admitted to threatening Wagner, we do not find that the lack of this evidence prejudiced

Wilcoxson at trial. {¶ 42} With regard to the video footage from Officer Paxton’s police c ruiser, the record establishes that the State never obtained that footage b ecause the State’s case in chief only concerned the verbal threats that Wilcoxson made to Wagner inside the laundromat. Because the altercation between Wilcoxson and Wagn er occurred prior to the arrival of the police, the cruiser camera footage would not have aided Wilcoxson’s defense against the aggravated menacing and menacing charges fo r which he was tried. Accordingly, Wilcoxson was not prejudiced by the State’s failur e to obtain the cruiser camera footage. {¶ 43} Similarly, any surveillance video footage taken from businesses surrounding the laundromat would have only shown Wilcoxson’s al tercation outside with Brewer. Wilcoxson’s and Wagner’s testimony both indicate that Wilcoxson threatened Wagner while they were inside the laundromat. Wilcoxson himsel f testified that Wa gner was not outside the laundromat for much of the event. Therefor e, surveillance footage taken from neighboring businesses would not have aided either p arty’s case with regard to the aggravated menacing and menacing charges. Accordingly, Wilcoxson was not prejudiced by the State’s failure to obtain that video footage either. {¶ 44} Because Wilcoxson was not prejudiced by the lack of video evide nce at issue, we find no due process violation. The record indicates that Wilcoxson received a-19- fair trial that resulted in a verdict worthy of confidence desp ite the absent video footage.

We also find that the trial court did not abuse its discretion when it decided to proceed with trial, as the trial court reasonably determined that the v ideo footage would not have corroborated either party’s version of the relevant events. {¶ 45} Wilcoxson’s second assignment of error is overruled.

Conclusion {¶ 46} Having overruled both of Wilcoxson’s assignments of error, the judgment of

the trial court is affirmed.

. . . . . . . . . . . . .

TUCKER, P.J. and EPLEY, J., concur.

Copies sent to: Stephanie L. Cook Andrew D. Sexton Robert Alan Brenner Hon. Christopher D. Roberts