[Cite as State v. McHenry, 2021-Ohio-3118.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellant 

v. 

DONALD J. MCHENRY 

Defendant-Appellee 

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Appellate Case No. 29106 

Trial Court Case No. 2020-CR-852 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 10th day of September, 2021. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422

 Attorney for Plaintiff-Appellant 

 

ANGELINA N. JACKSON Atty. Reg. No. 0077937, Assistant Public Defender, 117 South 

Main Street, Suite 400, Dayton, Ohio 45422 

 Attorney for Defendant-Appellee 

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

 

WELBAUM, J. 
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{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from a judgment of the 

Montgomery County Court of Common Pleas granting defendant-appellee Donald J. 

McHenry’s oral motion in limine as a sanction for the State’s committing an inadvertent 

discovery violation. In support of its appeal, the State argues that the trial court was 

required to impose the least severe sanction for the discovery violation, and that the trial 

court failed to do so when it excluded the evidence at issue. The State asserts that a 

trial continuance would have been the least severe sanction and that excluding the 

evidence was an abuse of discretion, since it was clear that doing so would result in 

McHenry’s case being dismissed. For the reasons outlined below, we agree that the trial 

court’s decision was an abuse of discretion. Therefore, the judgment of the trial court 

will be reversed and the matter will be remanded to the trial court for further proceedings. 

Facts and Course of Proceedings 

{¶ 2} On March 23, 2020, a Montgomery County grand jury returned an indictment 

charging McHenry with one count of violating a protection order in violation of R.C. 

2919.27. The offense was charged as a fifth-degree felony due to McHenry’s having a 

prior conviction for violating a protection order in Dayton Municipal Court Case No. 2019-

CRB-2738. McHenry pled not guilty to the charge and was subsequently released on 

bond on April 17, 2020. 

{¶ 3} During the pendency of the case, the trial court granted several oral motions 

raised by McHenry requesting the trial court to continue the initial scheduling conference 

due to the ongoing COVID-19 pandemic. McHenry also filed a motion to suppress 
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statements that he made to police officers based on an alleged Miranda violation. The 

trial court denied McHenry’s motion to suppress and thereafter scheduled McHenry’s 

case for a jury trial to take place on December 14, 2020. 

{¶ 4} On November 25, 2020, the trial court granted a trial continuance after 

McHenry orally moved to continue his trial due to the COVID-19 pandemic. The trial 

court then scheduled another scheduling conference to take place on January 6, 2021. 

During that scheduling conference, McHenry signed a time waiver and waived his right to 

a speedy trial. Thereafter, the trial court scheduled McHenry’s trial for April 12, 2021. 

On March 31, 2021, trial was rescheduled for April 14, 2021. 

{¶ 5} On April 13, 2021, the day before McHenry’s trial was scheduled to begin, 

the trial court held a hearing on an oral motion in limine that McHenry’s counsel had raised 

while the parties were in chambers on April 12, 2021. During this hearing, McHenry’s 

counsel explained that, while the parties were in chambers discussing McHenry’s case, 

the State referenced a protection order that was issued on April 16, 2019, as the 

protection order that McHenry had allegedly violated. Thereafter, McHenry’s counsel 

indicated in chambers that the only protection order the State had provided him in 

discovery was an expired ex parte protection order that was issued on March 8, 2019. 

{¶ 6} McHenry’s counsel explained that, until that moment in chambers, he had 

believed that the expired protection order was the subject of McHenry’s indictment and 

that his defense plan had been based entirely on the fact that McHenry had been indicted 

under an invalid protection order. As a result, McHenry’s counsel stated that he 

immediately moved for the April 16, 2019 protection order to be excluded from evidence 

on grounds that it would completely change the defense’s theory of the case. 
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{¶ 7} In response to McHenry’s counsel’s statements, the State acknowledged that 

it had inadvertently provided McHenry’s counsel with the wrong protection order. The 

State explained that the investigating detective had accidentally attached the expired 

protection order to the case file that he forwarded to the prosecutor for purposes of 

discovery. The State claimed that it then forwarded the case information to McHenry’s 

counsel believing that the correct protection order was attached. Therefore, the State 

maintained that it did not willfully withhold the protection order from McHenry’s counsel 

and that its discovery violation was inadvertent. 

{¶ 8} The State also argued that the parties had had numerous discussions about 

this case and numerous scheduling conferences during which it was believed that the 

parties had everything they needed for trial. The State further maintained that the 

technical violation with the expired protection order could have been remedied previously 

had the matter been brought up earlier by McHenry’s counsel. 

{¶ 9} The State additionally argued that the correct protection order was 

referenced in the corresponding police report that was provided to McHenry’s counsel in 

discovery and that the protection order at issue had been served on McHenry over a year 

prior to the instant offense, given that McHenry had previously been prosecuted for 

violating the same protection order in Dayton Municipal Court Case No. 2019-CRB-2738. 

Therefore, the State maintained that McHenry had been aware of the existence of the 

April 16, 2019 protection order on which his violation was based. 

{¶ 10} Based on the foregoing arguments, the State requested that the trial court 

review the circumstances surrounding the State’s discovery mistake and employ the least 

restrictive remedy. The State specifically requested that the trial court order a trial 
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continuance, pointing out that excluding evidence of the protection order would 

necessarily result in the dismissal of McHenry’s case and would prevent the victim from 

having his day in court. McHenry’s counsel, however, was opposed to the trial court 

ordering another trial continuance. McHenry’s counsel also noted that he had exercised 

due diligence and truly believed that he was facing an expired protection order until just 

recently. McHenry’s counsel further argued that it was not the defense’s duty to lay out 

its case for the State. 

{¶ 11} After hearing both the parties’ arguments, the trial court found that the 

State’s discovery violation was not willful, but inadvertent. The trial court noted, 

however, that the State should have reviewed the case file to ensure that everything had 

been produced, especially since there had been multiple discovery demands. The trial 

court also found that knowledge of which protection order McHenry was indicted under 

would have necessarily changed how McHenry prepared for his case. The trial court 

further found that because the indictment did not identify the specific protection order that 

McHenry violated and because the expired protection order had been marked as being 

certified just prior to McHenry’s grand jury proceeding, McHenry’s counsel had every 

reason to believe that McHenry had been indicted under the expired protection order that 

was provided to him by the State. Given these facts, the trial court found that McHenry 

had had no reason to look for any other protection order. 

{¶ 12} Following its findings, the trial court acknowledged that it was required to 

impose the least restrictive sanction. The trial court also acknowledged that excluding 

the protection order from evidence would necessarily result in the dismissal of McHenry’s 

case. Nevertheless, the trial court decided that, under the circumstances of this case, a 
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trial continuance would be extremely unfair to the defendant and thus decided to exclude 

evidence of the April 16, 2019 protection order as a sanction for the State’s inadvertent 

discovery violation. The State now appeals from that decision, raising a single 

assignment of error for review. 

Assignment of Error 

{¶ 13} Under its sole assignment of error, the State contends that the trial court 

erred by failing to impose the least severe sanction for the State’s inadvertent discovery 

violation. Specifically, the State maintains that under the circumstances of this case, the 

trial court should have ordered a trial continuance as opposed to excluding the 

undisclosed protection order from evidence. The State argues that the trial court’s 

decision to exclude the protection order was unreasonably harsh for an inadvertent 

discovery violation since the exclusion necessitated the dismissal of McHenry’s case. 

We agree. 

{¶ 14} Crim.R. 16(B) sets forth the items the State is required to provide to a 

defendant in discovery, and it generally includes “items related to the particular case 

indictment, information, or complaint, and which are material to the preparation of a 

defense, or are intended for use by the prosecuting attorney as evidence at the trial[.]” If 

it comes to the court’s attention that a party has not complied with Crim.R. 16, the trial 

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). 

{¶ 15} “Sanctions for a Crim.R. 16 discovery violation are within the discretion of 
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the trial court and should be imposed equally, without regard to the status of the offending 

party.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 20. 

“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.” Lakewood v. Papadelis, 32 

Ohio St.3d 1, 511 N.E.2d 1138 (1987), paragraph two of the syllabus. “In exercising its 

discretion when the discovery violation is committed by the State, trial courts should 

consider: (1) whether the failure to disclose was a willful violation of Crim.R. 16, (2) 

whether foreknowledge of the undisclosed material would have benefitted the accused in 

the preparation of a defense, and (3) whether the accused was prejudiced.” State v. 

Hunt, 2d Dist. Darke No. 2018-CA-9, 2019-Ohio-2352, ¶ 30, citing Darmond at ¶ 35, citing 

State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983). 

{¶ 16} “A review by an appellate court of the sanction imposed by a trial court for 

discovery violations is whether the sanction constituted an abuse of discretion.” State v. 

Johnson, 2d Dist. Montgomery No. 18642, 2001 WL 814993, *1 (July 20, 2001), citing 

Parson at 445. “A trial court abuses its discretion when it makes a decision that is 

unreasonable, unconscionable, or arbitrary.” Darmond at ¶ 34, citing State v. Adams, 

62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). An abuse of discretion most often 

involves an unreasonable decision that is not supported by a sound reasoning process. 

AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 

157, 161, 553 N.E.2d 597 (1990). 

{¶ 17} Multiple appellate courts in Ohio have held that a trial court abuses its 

discretion when it fails to impose the least severe sanction for a discovery violation that 
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is consistent with the purpose of the rules of discovery. See, e.g., State v. Lambert, 6th 

Dist. Ottawa No. OT-96-011, 1996 WL 675637, *3 (Nov. 22, 1996) (finding an abuse of 

discretion where the trial court inquired into the circumstances surrounding a discovery 

violation, but did not impose the least severe sanction that was consistent with the rules 

of discovery); State v. Warfield, 8th Dist. Cuyahoga No. 86055, 2006-Ohio-935, ¶ 14 

(finding the trial court’s decision dismissing an indictment due to an inadvertent discovery 

violation was an abuse of discretion because it “went beyond the least severe sanction 

consistent with the purpose of the rules of discovery” and “was too severe * * * given the 

nature of the infraction”); State v. King, 5th Dist. Muskingum No. CT2010-0010, 2010-

Ohio-5701, ¶ 24 and ¶ 75 (finding an abuse of discretion where the trial court did not 

impose the least severe sanction for a discovery violation, but instead “imposed the most 

severe sanction that it could”). See also State v. Johnson, 169 Ohio App.3d 552, 2006-

Ohio-6227, 863 N.E.2d 1088, ¶ 9-13 (2d Dist.) (finding the trial court abused its discretion 

by dismissing a case for an inadvertent discovery violation where the detective 

accidentally failed to attach certain bank statements to the discovery packet and where 

the trial court relied on the 90-day deadline for trial in Sup.R. 39(B)(1) as a reason for 

dismissing the case as opposed to granting a trial continuance). 

{¶ 18} In this case, the record indicates that the trial court considered all the 

necessary factors when determining what sanction to impose for the State’s inadvertent 

discovery violation. The trial court also specifically acknowledged that it was required to 

impose the least severe sanction that was consistent with the purpose of the rules of 

discovery. Pursuant to Crim.R. 16(A), the purpose of the rules of discovery is “to provide 

all parties in a criminal case with the information necessary for a full and fair adjudication 
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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.” The Supreme Court 

of Ohio has also stated that “[t]he purpose of the discovery rules ‘is to prevent surprise 

and the secreting of evidence favorable to one party.’ ” Darmond, 135 Ohio St.3d 343, 

2013-Ohio-966, 986 N.E.2d 971, at ¶ 19, quoting Lakewood, 32 Ohio St.3d at 3, 511 

N.E.2d 1138. 

{¶ 19} As previously discussed, the trial court decided to exclude the protection 

order as a sanction for the State’s inadvertent discovery violation even though the trial 

court acknowledged that the exclusion would result in McHenry’s case being dismissed. 

“[D]ismissal of a case is an extreme discovery sanction, requiring compelling reasons.” 

State v. Green, 2d Dist. Montgomery No. 16754, 1998 WL 309211, *2 (June 12, 1998). 

Upon review, we are not persuaded that the trial court’s reasons for effectively dismissing 

McHenry’s case were sufficiently compelling. 

{¶ 20} During the hearing on McHenry’s oral motion in limine, the trial court 

indicated that it ultimately decided not to impose the lesser sanction of a trial continuance 

because it believed that a trial continuance would be unfair to McHenry. The trial court 

reached this conclusion primarily because it found that there had been several other trial 

continuances and because McHenry had reluctantly agreed to waive his right to a speedy 

trial at the behest of the trial court.1 Specifically the trial court stated that: 

I agree with you that I’m supposed to consider the least restrictive 

sanction here and I want to do that, but I also know that a continuance here 

1 The trial court explained that “there’s a time waiver only because I was there and I know 

that [defense counsel] did that. He twisted his client’s arm at my behest because I had 

just taken the bench.” Hearing Trans. (Apr. 13, 2021), p. 17. 
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is something that the defense is extremely opposed to, has been since I 

took the bench four months ago. It’s been articulated to me how he did not 

want to continue this case. I believe it was set for trial right after I took the 

bench. It was my idea to continue it at that point because I had just taken 

the bench. He was extremely opposed to it. 

So I think that is the only other sanction other than precluding the 

evidence and outright dismissal which I’m not willing to do. But I also 

understand that precluding the evidence is, in effect, a dismissal because 

you can’t proceed without it. But that’s all the more reason the state 

should’ve been very sure that something as key to their case as the 

protection order at issue was produced to the other side. 

So the fact that the very evidence that’s asked to be precluded is 

something that’s key to the State’s case, I understand that makes the 

sanction more severe, but on the flip side it also means that the State 

should’ve been more careful about making sure that document was

produced to the other side. 

So based on reviewing the factors from the Supreme Court, looking 

at everything that happened here, the fact that this case has been continued 

three times, that the defense has prepared this case based on the protection 

order that now is not at issue, I am going to grant the motion to preclude the 

production or the admission of the protection order. 

And I – I have been thinking about this since it was raised in my 

chambers yesterday. I wish – you know, most of the time when I’m 
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precluding evidence, it’s not something that’s going to prevent the State 

from going forward but I think that because the only other possible sanction 

is one that’s just entirely unfair to the defendant. This is what my decision 

is going to be. 

Hearing Trans. (Apr. 13, 2021), p. 15-17. 

{¶ 21} The trial court also explained its reasoning for not granting a trial 

continuance in its written decision granting McHenry’s oral motion in limine wherein the 

trial court stated the following: 

The only available remedies the Court had at its disposal were: (1) 

outright dismissal; (2) exclude the evidence not produced in discovery; or 

(3) continue the trial. The least severe, of course, would be to continue the 

trial. However, this matter has been pending for over a year. The trial has 

been continued three times already, mostly due to COVID and 

Administrative Orders of the Court discouraging jury trials except in unique 

and urgent circumstances through March 27, 2020, matters outside of the 

Defendant or State’s control. The latest continuance from January 6, 2021 

required Defendant to very reluctantly waive speedy trial time to reset the 

trial for April 14, 2021, the earliest date available after expiration of the 

Administrative Order. Continuing this trial for a fourth time, through no fault 

of the Defendant, would have unnecessarily penalized and prejudiced 

Defendant from having a trial on the charge against him within a reasonable 

period of time. The Defendant objected to a continuance, and the Court 

determined in its sound discretion that a continuance would be unfair to 
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Defendant. 

(Emphasis sic.) Decision Granting Oral Motion in Limine (Apr. 23, 2021), p. 6. 

{¶ 22} The record indicates that the trial court ultimately decided not to impose the 

least restrictive sanction in the form of a trial continuance because McHenry’s trial had 

already been continued three times and because a fourth trial continuance would have 

been unfair to McHenry. The State, however, did not request any of the trial 

continuances. Also, while the trial court continued several scheduling conferences in 

this case, the record establishes that McHenry’s trial was only continued twice. 

{¶ 23} The first trial continuance occurred after McHenry moved to continue the 

original trial date of December 14, 2020, due to the ongoing COVID-19 pandemic. After 

that continuance was granted, the matter was set for a scheduling conference on January 

6, 2021. During the scheduling conference, McHenry reluctantly waived his right to a 

speedy trial at the behest of the trial court, and his trial was thereafter rescheduled for 

April 12, 2021. The April 12th date was then administratively continued to April 14, 2021. 

The record, therefore, indicates that the delay in this case was not as extreme as the trial 

court indicated and was largely due to the trial court encouraging McHenry to waive his 

right to a speedy trial. 

{¶ 24} Regardless, what we find most concerning about this case is the fact that 

the trial court’s reason for not imposing a trial continuance as a discovery sanction had 

little to do with the circumstances surrounding the State’s discovery violation. As 

previously noted: “[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 
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discovery.” (Emphasis added.) Lakewood, 32 Ohio St.3d 1, 511 N.E.2d 1138 at 

paragraph two of the syllabus. Here, the trial court decided against a trial continuance 

primarily because McHenry’s trial had already been continued multiple times and because 

McHenry was pressured into waiving his speedy trial rights. The trial court’s statements 

at the hearing and in its written decision indicate that but for those circumstances, it would 

have granted a trial continuance as opposed to excluding the evidence. Those 

circumstances, however, have nothing to do with the State’s discovery violation. In other 

words, the trial court’s decision to exclude the evidence was not based on the 

circumstances surrounding the State’s inadvertent discovery violation, but on prior trial 

continuances and actions by the trial court that were out of the State’s control. We find 

this to be unreasonable, thereby constituting an abuse of discretion. 

{¶ 25} Although we appreciate the fact that McHenry wanted to get this matter 

behind him and did not want his trial to be delayed any longer, an additional continuance 

would have been a fair and feasible option in this case. This is particularly true given 

that McHenry was out on bond and not in custody. A trial continuance would have also 

permitted McHenry’s case to be resolved on the merits as opposed to on a procedural 

technicality, which is always preferable. Staub v. Miller, 2d Dist. Greene No. 2018-CA2, 2018-Ohio-3603, ¶ 29; Ohio Furniture Co. v. Mindala, 22 Ohio St.3d 99, 101, 488 

N.E.2d 881 (1986), quoting Perotti v. Ferguson, 7 Ohio St.3d 1, 3, 454 N.E.2d 951 (1983) 

(“ ‘a basic tenet of Ohio jurisprudence [is] that cases should be decided on their merits’ ”). 

It is also significant that the State’s discovery violation was inadvertent and that the record 

indicates that McHenry was aware of the undisclosed protection order’s existence, as he 

had been convicted for violating the same protection order in Dayton Municipal Court 
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Case No. 2019-CR-2738. Therefore, despite McHenry’s claims otherwise, there was no 

real element of surprise here. 

{¶ 26} For all the foregoing reasons, we find that the trial court abused its discretion 

by excluding the April 16, 2019 protection order as a sanction for the State’s inadvertent 

discovery violation, which necessarily resulted in the dismissal of McHenry’s case, when 

a less severe sanction in the form of a trial continuance was a fair and feasible option 

under the circumstances. 

{¶ 27} The State’s sole assignment of error is sustained. 

Conclusion 

{¶ 28} Having sustained the State’s sole assignment of error, the judgment of the 

trial court granting McHenry’s oral motion in limine excluding the April 16, 2019 protection 

order is reversed, and the matter is remanded to the trial court for further proceedings. 

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

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

Copies sent to: 

Mathias H. Heck, Jr. 

Heather N. Ketter 

Angelina N. Jackson 

Hon. Susan D. Solle