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State v. Adams6/30/2004
idual who engaged in anal intercourse with Roslyn also beat, strangled, and undressed her to engage in the sexual conduct. Although appellant contends that David was the possible culprit, David was incapable of lifting more than fifty pounds due to his prior injuries. Dr. Germaniuk testified that the bruise to Roslyn's hip was consistent with having been dropped in the front seat of the vehicle. Based on this evidence, it would appear improbable that David could have lifted or dropped Roslyn because she weighed approximately one hundred twenty pounds. No credible evidence was introduced at trial to indicate that anyone other than appellant would have beaten, strangled, or raped Roslyn. Therefore, based on Schlee and Thompkins, supra, the jury did not clearly lose its way in convicting appellant of rape, and appellant's conviction should not be reversed because the evidence did not weigh heavily against the conviction. Thus, appellant's fourth assignment of error is without merit.
. For the foregoing reasons, appellant's assignments of error are not well-taken. The judgment of the Trumbull County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J., concurs. JUDITH A. CHRISTLEY, J., dissents with Dissenting Opinion.
JUDITH A. CHRISTLEY, J., dissenting.
. I respectfully dissent. For the following reasons, the trial court should have granted the motion for a new trial.
. The majority's review of the file led it to the conclusion that nothing prejudicial had been withheld. While I agree that the sealed file seemed to be fairly complete, I disagree with the conclusion that appellant was not prejudiced.
. The sealed file that this court received apparently contained all but four seemingly cumulative items sought by the defense. Arguably the withholding of those four items was not prejudicial. However, the sealed file did not clarify when many of the other items in the file were submitted to the defense. Further, as will be discussed, there are numerous references in the trial transcript which clearly indicate that several key items of discovery were submitted so late that it would have been impossible for defense counsel to assess their importance or to investigate further.
. Pursuant to Crim.R. 16(E), the trial court had the authority to order a new trial based upon the state's failure to provide timely discovery. When the state withholds material, exculpatory evidence in a criminal proceeding, the state violates the defendant's due process right to a fair trial, regardless of the good faith or bad faith of the state. State v. Johnston (1988), 39 Ohio St.3d 48, 60. Exculpatory evidence is deemed to be material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley (1984), 473 U.S. 667, 682. The foregoing "reasonable probability" test applies to all cases where the defense alleges the prosecution improperly suppressed exculpatory evidence. Johnston at 61.
. Thus, while the defense may have ultimately received all but these four items, certain material, exculpatory items were among voluminous stacks of files made available for viewing, but not copying, either immediately prior to the beginning of voir dire, during voir dire, or during the first week of trial.
. Defense counsel for appellant were public defenders with all the usual time and expense issues faced by death qualified public defenders. Nevertheless, defense counsel did an outstanding job, as the trial judge first dismis
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