[Cite as State v. Wilder,
2012-Ohio-2288.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26114
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANTHONY WILDER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 10 07 1878
DECISION AND JOURNAL ENTRY
Dated: May 23, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} A jury convicted Anthony Wilder of rape and sexual battery of his girlfriend’s
daughter. This Court affirms the judgment because the trial court exercised proper discretion in
denying Mr. Wilder’s motion for a mistrial because the testimony the jury heard was not so
prejudicial that it deprived Mr. Wilder of a fair trial and, if the State violated the discovery rule,
there was no indication in the record that it did so willfully.
BACKGROUND
{¶2} When she was five years old, L.T. moved with her mother and younger brother
from Warren to Akron to live with her mother’s boyfriend, Anthony Wilder. Although L.T.’s
mother, Laura T., never married Mr. Wilder, they lived as husband and wife for more than a
decade until L.T. told her mother that Mr. Wilder had been sexually molesting her. Within
twenty-four hours of telling her mother, L.T. was living in Warren with her father.
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{¶3} L.T. testified at trial that Mr. Wilder started touching her inappropriately when
she was in the sixth grade and either 11 or 12 years old. She said that, on her thirteenth birthday,
Mr. Wilder took her pants off and had sex with her. L.T. testified that the incidents would vary
in frequency from every day to every week to less frequently for a while. According to her, Mr.
Wilder would generally approach her while she was sleeping in her bedroom, the living room, or
the basement of the house they shared in Akron. Just after her sixteenth birthday, in February
2010, L.T. told her boyfriend what Mr. Wilder was doing. Her boyfriend encouraged her to tell
her mother. When her mother did not immediately force Mr. Wilder to move out of the house,
L.T. went to live with her father and his family in Warren.
MOTION FOR MISTRIAL
{¶4} Mr. Wilder’s first assignment of error is that the trial court incorrectly denied his
motion for a mistrial. He has argued that he was deprived of a fair trial because the jury heard
inadmissible testimony that damaged the credibility of his “main” witness before she took the
stand. The witness was L.T.’s mother, Laura T. On direct examination of L.T. on the first day
of trial, the State asked her about the “custody situation” between her and her mother. Mr.
Wilder objected and the trial court sustained the objection. The State then asked how often she
sees her mother. Mr. Wilder did not object, and L.T. responded that she “do[esn’t] really see her
a whole lot.” The State next asked whether her mother had “give[n] up custody” of her. After
the trial court sustained Mr. Wilder’s objection, L.T. answered, “Yes, she did.” The State
explained to L.T. that she was not permitted to answer a question after the judge sustains an
objection to it. The trial court then said, “That will be stricken.” The trial court did not further
address the matter in front of the jury at that time.
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{¶5} Outside the presence of the jury, Mr. Wilder argued that the question about
whether Laura T. had voluntarily relinquished her parental rights was “tremendously prejudicial”
as it damaged her credibility and character days before she was scheduled to testify for Mr.
Wilder. The defendant moved for a mistrial, arguing that a limiting instruction would not cure
the prejudice to him. The State argued that the evidence was admissible and relevant to the
credibility of both mother and daughter and showed the mother’s bias against the alleged victim.
The State also argued that the testimony was not prejudicial to Mr. Wilder because the testimony
had nothing to do with him. The trial court said that it agreed with the State and overruled the
motion for mistrial.
{¶6} On appeal, Mr. Wilder has argued that the trial court incorrectly denied his
motion for a mistrial because the trial court did not do enough to overcome the prejudice against
Mr. Wilder’s main witness. The State has countered that Mr. Wilder was not deprived of a fair
trial because the court warned the jury about the effect of sustained objections during preliminary
instructions and again during the final jury instructions. During the preliminary instructions, the
court told the jury that, if it sustains an objection, the jury “won’t be able to hear the answer to
the question that’s being asked.” During the final instructions, the court told the jury that it must
disregard any statements or answers that were stricken by the court because they are not
evidence and “must be treated as though you never heard them.” The State has also argued that
the jury would have found Mr. Wilder guilty beyond a reasonable doubt even if it had not heard
that L.T. had voluntarily relinquished custody of her daughter.
{¶7} “[I]n recognition of the fact that the trial judge is in the best position to determine
whether the situation in [the] courtroom warrants the declaration of a mistrial,” “the law grants
great deference to the trial court’s discretion in this area.” State v. Plant, 9th Dist. No. 2599,
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1991 WL 81650 at *2 (May 15, 1991). According to the Ohio Supreme Court, “the law has
invested Courts of justice with the authority to discharge a jury from giving any verdict,
whenever, in their opinion, taking all the circumstances into consideration, there is a manifest
necessity for the act, or the ends of public justice would otherwise be defeated. They are to
exercise a sound discretion on the subject; and it is impossible to define all the circumstances,
which would render it proper to interfere. To be sure, the power ought to be used with the
greatest caution, under urgent circumstances, and for very plain and obvious causes.” State v.
Widner,
68 Ohio St. 2d 188, 190 (1981) (quoting United States v. Perez,
22 U.S. 579, 580
(1824)). “Mistrials need be declared only when the ends of justice so require and a fair trial is no
longer possible.” State v. Franklin,
62 Ohio St. 3d 118, 127 (1991) (citing Illinois v. Somerville,
410 U.S. 458, 462-63 (1973); Arizona v. Washington,
434 U.S. 497, 505-06 (1978)).
{¶8} On appeal, Mr. Wilder has not offered any argument about why the evidence
regarding the custody situation was inadmissible. Assuming it was inadmissible, at least when
offered through L.T.’s testimony, it was not so prejudicial that it deprived Mr. Wilder of a fair
trial. The mother and both children testified, without objection, that they had lived together with
Mr. Wilder in Akron for many years and that the living situation changed after L.T. reported the
alleged abuse. They testified that, following this revelation, both children moved from Akron to
Warren to live with their father. L.T. also testified, without objection, that she did not see her
mother very often anymore. She said that she had attended school with the same kids for many
years before moving to Warren for her junior year and she missed her former high school. She
testified that, by the time of trial, she sees her mother “[j]ust whenever she comes down and
picks up my cousin or comes to my aunt’s house.”
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{¶9} That testimony, admitted without objection from the defense, effectively blunted
the impact of the additional information that Laura T. had officially given up custody of her
children in the wake of these allegations. Nothing in the record supports Mr. Wilder’s
contention that he was deprived of a fair trial because the jury heard L.T.’s response to the
question about whether her mother had officially relinquished custody. The trial court exercised
proper discretion by denying Mr. Wilder’s motion for a mistrial. His first assignment of error is
overruled.
DISCOVERY VIOLATION
{¶10} Mr. Wilder’s second assignment of error is that the State’s “willful failure” to
disclose evidence substantially prejudiced his defense. He has argued that his convictions should
be reversed because the State violated Rule 16 of the Ohio Rules of Criminal Procedure by
failing to timely uncover and disclose a series of angry text messages between the alleged victim
and her mother. He has argued that, because the charges had been pending for over a year, the
State should have uncovered and disclosed the texts before the trial began. On the second
morning of trial, the prosecutor gave Mr. Wilder’s lawyer three pages of text messages between
L.T. and her mother. According to Mr. Wilder’s lawyer, in some of those messages, Laura T.
called her daughter a “slut” and “threatened her should she return [to Akron].” He argued that
the texts damaged Laura T.’s credibility as a defense witness and that the delayed disclosure left
him with insufficient time to prepare a strategy to rehabilitate her as a witness.
{¶11} The prosecutor explained to the trial court that he had first learned of the text
messages on the first day of trial. Although he was aware of some “bad blood” between Laura T.
and her daughter, he told the court that he had never heard that text messages existed that would
prove that Laura T. was hostile toward her daughter after these allegations surfaced. The
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prosecutor explained that L.T.’s younger brother, who at the time of the trial carried the cell
phone that had once belonged to L.T., told him about the texts on the first day of trial. The
prosecutor told the court that he had photocopies made the same day and gave those copies to the
defense the next morning. Mr. Wilder’s lawyer immediately moved to exclude the contents of
the text messages from evidence due to the untimely disclosure by the State under Rule 16 of the
Ohio Rules Criminal Procedure. Mr. Wilder argued that the texts were prejudicial, but did not
argue that the prosecutor had possession of the texts or knowledge of their existence before the
beginning of trial.
{¶12} The trial court heard Mr. Wilder’s motion to exclude the texts from evidence and
ruled that the State could not introduce the documents, but that it could ask Laura T. whether she
had said such things to her daughter and could use the documents to impeach her if necessary.
The State did not call Laura T. as a witness in its case in chief. Mr. Wilder called her as his sixth
witness, on the afternoon of the third day of trial. On cross-examination, Laura T. testified that
she “[n]ever” had any animosity toward her daughter after the allegations against Mr. Wilder
came to light. She denied being angry with her daughter, saying that she felt “[c]onfused” and
“[u]pset . . . [n]ot at her but with everything [that was] going on.” She went on to testify that,
during that time, her daughter was mad at her and said things to hurt her.
{¶13} On cross-examination, Laura T. testified that she called her daughter a “slut” in a
text message and warned her that she might be harmed if she returned to Akron. She explained
that she was not threatening her daughter, but warning her that Mr. Wilder’s family was upset
with her due to the allegations, so she would be wise to stay away from the area. Mr. Wilder has
argued that the testimony about the text messages was inadmissible and prejudicial. Mr. Wilder
has not explained his belief regarding what part of Criminal Rule 16 required the State to
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disclose the text messages or what part of the rule required the State to uncover their existence
before trial began.
{¶14} “Prosecutorial violations of [Criminal Rule] 16 are reversible only [if] there is a
showing that (1) the prosecution’s failure to disclose was a willful violation of the rule, (2)
foreknowledge of the information would have benefited the accused in the preparation of his
defense, and (3) the accused suffered some prejudicial effect.” State v. Joseph, 73 Ohio St. 3d
450, 458 (1995). Under Rule 16(B)(3), upon written demand, the prosecution must provide a
defendant with “all . . . papers [and] documents” that are related to the indictment, material to the
preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the
trial. Presumably, Mr. Wilder intended to argue that the photocopies of the text messages were
papers “material to the preparation of a defense.”
{¶15} The first question presented by Mr. Wilder’s second assignment of error is
whether there was a violation of Criminal Rule 16. Assuming without deciding that the content
of the text messages was subject to disclosure under Rule 16, it is unclear whether the prosecutor
failed to disclose it. There is nothing in the record that suggests that the State knew about the
text messages before the first day of trial. According to the prosecutor, he learned of the text
messages on the first day of trial, made photocopies, and provided them to defense counsel
“immediately” on the second morning of trial. There is no dispute that, before bringing in the
jury on the morning of Wednesday, July 27, 2011, the second day of trial, the court heard Mr.
Wilder’s motion to exclude the text messages. Mr. Wilder has not argued, nor does the record
suggest, that the prosecutor held the texts without disclosing them any longer than he described
to the trial court. Furthermore, because Mr. Wilder’s own witness, his long-time live-in
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girlfriend, wrote the text messages, he presumably had an equal opportunity to discover their
existence prior to trial.
{¶16} Even assuming without deciding that the State violated Criminal Rule 16 by
failing to more quickly disclose the information, Mr. Wilder has not presented a basis for
reversal of his convictions. In order to warrant reversal, Mr. Wilder must show that the State’s
failure to disclose was a willful violation of the rule. State v. Joseph, 73 Ohio St. 3d 450, 458
(1995). Mr. Wilder has not even argued, much less showed, that the State willfully violated
Criminal Rule 16 in this case. Further, Mr. Wilder learned of the text messages more than a day
and a half before Laura T. took the stand. It is unclear how his defense would have benefitted
from earlier knowledge of the text messages. Mr. Wilder’s second assignment of error is
overruled.
CONCLUSION
{¶17} Mr. Wilder’s first assignment of error is overruled. The trial court exercised
proper discretion in denying his motion for a mistrial because the testimony the jury heard was
not so prejudicial that it deprived Mr. Wilder of a fair trial. The second assignment of error is
overruled because, if the State violated Rule 16 of the Ohio Rules of Criminal Procedure, there is
no indication in the record that it did so willfully. The judgment of the Summit County Common
Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
WHITMORE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
THOMAS M. DICAUDO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
