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State v. Canada1/31/2003
h a sanction violates one of the purposes of the discovery rules --to afford a criminal defendant a fair trial -- and also violates the defendant's right to present a defense. State v. Wilmoth (1995), 104 Ohio App.3d 539, 545, jurisdictional motion overruled (1995), 74 Ohio St.3d 1456. Therefore, in this case, sanctioning the attorney would have been a less severe option than sanctioning appellant by excluding her evidence.
. Additionally, there is no reason evident in the record why a short continuance would not have been effective to protect the state's interests. In fact, had the state made its motion in a timely manner, that is, before a jury was seated and the trial had begun, a continuance for a brief period would have been only minimally disruptive. See Wilmoth, 104 Ohio App.3d at 543. We therefore find that at least two less severe sanctions would have been appropriate.
. Further, the exclusion of this evidence had a great impact on appellant's case. Without the expert testimony, appellant had little, if anything, in the way of a defense. She had only her and her sister's testimony about how much appellant ate and drank, the times at which she did so, and the time at which she took ibuprofen for pain in her knee. The state had the testimony of the officer, the tape of the stop, and the results of the breath test. With no manner of rebutting or explaining the results of the breath test, appellant was severely hampered in her defense. We therefore find that, applying Lakewood, the trial court should have imposed a sanction short of exclusion.
. In making its decision to exclude the testimony, the court indicated that it relied on our decision in State v. Itzo (May 22, 1998), Ottawa App. No. OT-97-018. Itzo, like the instant case, involved DUI and exclusion of expert testimony because of late disclosure. We applied Lakewood. In Itzo we held that, since a trial court has discretion to admit or deny evidence, and since exclusion of the evidence did not "completely deny" appellant his right to present a defense, the trial court did not abuse its discretion.
. We believe that the instant case is different than Itzo for two reasons. First, in this case, we believe that exclusion of the evidence in question would deny appellant's right to present a defense. Second, in this case, unlike in Itzo, the record contains evidence that the trial court imposed the sanction that it did because defense counsel had been involved in late discovery situations on earlier occasions. Therefore, in this case, the natural and less severe sanction would have been to sanction the attorney, not appellant.
. Because we find that less severe sanctions could have been effective, we find that the trial court abused its discretion in excluding appellant's expert testimony.
. Upon consideration whereof, we find that substantial justice has not been done the party complaining, and the decision of the Ottawa County Municipal Court is reversed. This case is remanded to the trial court for a new trial. Costs assessed to appellee.
JUDGMENT REVERSED.
Knepper and Glasser, JJ., concur.
Judge George M. Glasser, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.
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