[Cite as State v. Wagner,
2025-Ohio-707.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2021-L-101
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
MARK R. WAGNER, JR.,
Trial Court No. 2020 CR 001117
Defendant-Appellant.
OPINION
Decided: March 3, 2025
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Brandon J. Henderson, Justin M. Weatherly, and Calvin Freas, Henderson, Mokhtari &
Weatherly Co., LPA, 1231 Superior Avenue, E., Cleveland, OH 44114 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Mark R. Wagner, Jr., appealed from his convictions
for Felonious Assault, Discharge of a Firearm on or Near Prohibited Premises, Improperly
Handling Firearms in a Motor Vehicle, and Falsification in the Lake County Court of
Common Pleas. This matter is presently before the court on remand from the Ohio
Supreme Court for consideration of the issue previously found to be moot. For the
following reasons, we affirm the judgment of the lower court on the second assignment
of error.
{¶2} On January 29, 2021, the Lake County Grand Jury issued an Indictment,
charging Wagner with Felonious Assault (Count One), a felony of the second degree, in
violation of R.C. 2903.11(A)(2); Discharge of a Firearm on or Near Prohibited Premises
(Count Two), a felony of the third degree, in violation of R.C. 2923.162(A)(3); Improperly
Handling Firearms in a Motor Vehicle (Count Three), a felony of the fourth degree, in
violation of R.C. 2923.16(A); and Falsification (Count Four), a misdemeanor of the first
degree, in violation of R.C. 2921.13(A)(3). Counts One and Two also had firearm
specifications pursuant to R.C. 2941.145 and .146.
{¶3} A jury trial was held in July 2021. The following pertinent testimony and
evidence were presented:
{¶4} On September 22, 2020, Solomon Ford was driving on I-271 North and
encountered another vehicle in front of him, driven by Wagner. According to Ford’s
testimony, Wagner was driving aggressively. Ford testified that Wagner moved into the
right lane while Ford remained in the fast lane. When Ford looked to the right, he
observed Wagner with a gun and then saw and heard two gun shots. Ford allowed police
to access his vehicle, which had two bullet holes, and officers subsequently swabbed the
inside for gunshot residue. At this point in the testimony, defense counsel indicated to
the court that he was unaware a swab had been taken of Ford’s car. The State indicated
that it had included a reference to the kit on the index of discovery provided to the defense.
{¶5} Officer Salvatore Continenza of the Willoughby Hills Police Department
spoke with Wagner, who came to the department after the shooting. According to
Continenza, Wagner stated that Ford fired at him first but Wagner did “not remember if
he [Wagner] fired or not.”
2
Case No. 2021-L-101
{¶6} Patrolman David Cook of the Wickliffe Police Department observed two
bullet holes in the passenger side of Ford’s vehicle and found a bullet on the rear
passenger floorboard.
{¶7} Lieutenant Manus McCaffery of the Wickliffe Police Department searched
Wagner’s vehicle and recovered two shell casings. He swabbed the interior of Ford’s
vehicle for gunshot residue on July 28. He testified that this was not sent into a laboratory
because “there is no laboratory in the State of Ohio that will test them for gunshot residue”
and labs would only test gunshot residue found on a person.
{¶8} As to his supplemental report that discussed swabbing Ford’s vehicle for
gunshot residue, McCaffery testified that he personally gave a copy to the prosecutor for
the first time on the day preceding his testimony, the first day of trial. He was unaware of
when the prosecutor first received the report but he gave them a copy because it had
been indicated to him that they did not have his supplement.
{¶9} Detective Don Dondrea of the Wickliffe Police Department examined
Wagner’s vehicle and did not observe bullet holes. He swabbed the vehicle for gunshot
residue but, after speaking with Ohio BCI, he was informed that they would only test
residue from hands.
{¶10} Wagner testified that Ford tried to merge his vehicle into him while driving,
which resulted in Wagner “brake checking” him. After Ford tailgated him, Wagner moved
to the right lane while Ford remained in the left lane. Subsequently, Wagner observed
Ford holding a gun. Wagner reached for a firearm in his vehicle, heard a shot and saw a
flash, and then fired his gun twice. He told Continenza that he “wasn’t sure if I shot him.
But I fired.” He testified that he fired the shots in self-defense.
3
Case No. 2021-L-101
{¶11} The jury found Wagner guilty of all counts as charged in the indictment. At
the sentencing hearing, the court merged Counts Two and Three with Count One. It
ordered Wagner to serve a term of three years to four and a half years in prison on Count
One, three years for the first firearm specification, and five years on the second, all to be
served consecutively. Wagner was ordered to a concurrent term of 180 days for Count
Four.
{¶12} Wagner appealed to this court, assigning two errors. On appeal, this court
reversed the convictions and remanded for the trial court to amend its jury instruction.
State v. Wagner, 2022-Ohio-4051, ¶ 28 (11th Dist.). The remaining assignment was
found moot. Wagner appealed to the Ohio Supreme Court, which reversed on the
authority of State v. Miree,
2024-Ohio-5714, and remanded for this court to “address the
mooted assignment of error.” State v. Wagner,
2024-Ohio-5939, ¶ 1. We now address
the second assignment of error.
{¶13} Wagner raises the following as his second assignment of error: “The
Defendant was reversibly prejudiced when crucial evidence that was directly related to
the cross-examination of the State’s primary witness—and whose cross-examination had
already been completed—was not given to his defense until one day into the three-day
trial even though the Defendant had triggered Crim.R. 16 by demanding discovery months
previously.”
{¶14} Wagner argues that a violation of Crim.R. 16 occurred when the prosecution
failed to disclose a report from a detective showing that he performed a gunshot residue
swab of Ford’s vehicle. He contends that the defense was unaware this swab had been
conducted, the State knew of the contents of the report, and counsel was unable to
4
Case No. 2021-L-101
adequately prepare to cross-examine Ford or seek to have the swabs tested to determine
whether Ford fired a gun.
{¶15} “Failure to disclose exculpatory evidence, when discovered during trial, is
governed by Crim.R. 16.” (Emphasis sic.) State v. Albanese, 2006-Ohio-4819, ¶ 46 (11th
Dist.). “Crim.R. 16 requires that parties provide discovery when such a request is made”
in order to prevent surprise and produce a fair trial. State v. Kratochvill,
2020-Ohio-7000,
¶ 41 (11th Dist.); Lakewood v. Papadelis,
32 Ohio St.3d 1, 3 (1987).
{¶16} Crim.R. 16(B)(5) requires that the prosecutor, upon written demand,
provide copies of “[a]ny evidence favorable to the defendant and material to guilt or
punishment.” “Prosecutorial violations of Crim.R. 16 are reversible only when 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).
{¶17} In the present matter, there is no question that a supplement to the police
report prepared by Lieutenant McCaffery in relation to the swabbing of Ford’s vehicle was
not provided to the defense until the end of the first day of trial. The State argues that
there can be no prejudice from receiving the report at this juncture since the defense had
already been provided discovery relating to the gunshot residue test. Defense counsel
denies having such knowledge and contends that he first learned of the gunshot residue
test of Ford’s vehicle during Ford’s cross-examination.
{¶18} Pursuant to the State’s argument, made in its brief and before the trial court,
on July 13, 2021, supplemental discovery of the State’s evidence log which “listed two
5
Case No. 2021-L-101
gunshot residue kits,” was sent to the defense and downloaded on July 14. The State
also argued that on July 15, it provided discovery containing the Wickliffe Police
Department’s property log, which listed two separate items as gunshot residue kits, and
stated in the note section that they were “taken from Honda Pilot [Ford’s vehicle].” The
record before this court includes notices of supplemental discovery from those dates, with
the index from July 13 stating that included in the evidence package was “EVIDENCE IN
FROM WICKLIFFE PD 7-13-21,” and the index from July 15 stating that included in the
package was “Wickliffe PD Property Log.” However, the evidence referenced from the
Wickliffe Police Department and the property log were not made part of the record before
this court.
{¶19} Even presuming the items addressed above were not provided to Wagner’s
counsel or did not adequately apprise counsel of the existence of the gunshot residue
swabs, in order to demonstrate a prosecutorial violation under Crim.R. 16, it is necessary
to show a willful violation by the prosecution. We do not find a willful violation. The State
argued extensively that it had provided notice of the gunshot residue kits as noted above.
As to the police report supplement at issue, the State indicated at the beginning of the
second day of trial that it “was never given to the prosecutor,” that it was received during
the first day of trial and as soon as it was received, the prosecutor walked down the
hallway and handed it to the defense. McCaffery testified that he personally had not given
the report to the State until the first day of trial, although he could not speak to whether
the prosecution had received the report prior to that date. While this delay in receiving
and providing the supplement to the police report is not ideal, it does not follow that the
prosecutor committed a willful violation. See State v. Summers, 2012-Ohio-4457, ¶ 30
6
Case No. 2021-L-101
(11th Dist.) (where the prosecution disclosed evidence immediately upon being made
aware the defense did not have it and asserted on the record that this was unintentional,
no willful violation was found). We observe that “all three factors must be present to
demonstrate a Crim.R. 16 discovery violation” so Wagner’s argument fails on the absence
of this ground alone. State v. Addiego, 2024-Ohio-1849, ¶ 40 (3d Dist.), citing State v.
Williams,
2018-Ohio-974, ¶ 22 (10th Dist.).
{¶20} In his reply brief, Wagner cites State v. South, 2005-Ohio-2152 (9th Dist.),
for the proposition that “[a]ny discoverable material in the police’s possession is
considered to be in the possession of the state and must therefore be given to the
defendant.” In South, the court took issue with the fact that the State had a police video
in its possession but refused to provide a copy to the defendant, an issue which is not
present here. Id. at ¶ 11. South does not contain the statement of law quoted by Wagner.
However, this court held the same in State v. Perry,
80 Ohio App.3d 78, 85 (11th Dist.
1992). While it may be accurate that the State must turn over evidence that the police
possess, it does not follow that the prosecutor’s lack of awareness of such evidence and
accompanying failure to timely disclose it constitutes a willful violation of Crim.R. 16. It
has been held that where evidence is not provided to a defendant as the result of a
mistake or misunderstanding, this does not constitute a willful violation for the purposes
of Crim.R. 16.
Summers at ¶ 30; State v. Smith,
2008-Ohio-6998, ¶ 55 (11th Dist.).
{¶21} Additionally, “[i]t has been held that if defense counsel is unprepared to
proceed due to the State’s failure to disclose evidence, it should seek a continuance in
order to remedy the problem” rather than another remedy such as dismissal. Summers
at ¶ 31, citing State v. Eckliffe,
2002-Ohio-7135, ¶ 18 (11th Dist.); see also State v.
7
Case No. 2021-L-101
Meyers, 2015-Ohio-4238, ¶ 27 (11th Dist.) (concluding that a court properly allowed
admission of testimony under Crim.R. 16 where defense counsel did not seek a
continuance but sought exclusion of the evidence). Here, the defense could have
requested a continuance to seek potential testing of gunshot residue or to prepare
additional examination and recall witnesses that had already testified. Instead, defense
counsel stated that he believed not having the report impacted his cross-examination of
Ford and made him “look . . . like an idiot,” that he wanted to put it on the record, he was
“perturbed,” and wanted to have more discussion as to whether there should be “some
type of instruction or something to the jurors,” although he recommended no specific
instruction to be given. No continuance was requested at any time. Nonetheless, counsel
used cross-examination to extensively demonstrate that the police failed to submit
gunshot residue for testing in support of Wagner’s claim of self-defense, demonstrating
that he may have believed it to be a more effective strategy than seeking a continuance
to take further action to test for gunshot residue in Ford’s vehicle. See State v. Salinas,
2010-Ohio-4738, ¶ 24 (10th Dist.) (observing that a failure to seek a continuance is
relevant in determining lack of prejudice).
{¶22} For the foregoing reasons, we find that the second assignment of error
which we were to consider on remand is without merit. We affirm Wagner’s convictions
in the Lake County Court of Common Pleas.
ROBERT J. PATTON, P.J.,
EUGENE A. LUCCI, J.,
concur.
8
Case No. 2021-L-101
