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State of Ohio v. John B. Feliciano

December 28, 2012

STATE OF OHIO APPELLEE
v.
JOHN B. FELICIANO APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 10CR080051

The opinion of the court was delivered by: Moore, Presiding Judge.

Cite as

State v. Feliciano,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Defendant-Appellant, John Feliciano, appeals from his sentence and conviction as set forth in the July 19, 2011 judgment entry of the Lorain County Court of Common Pleas. For the following reasons, we affirm.

I.

{¶2} S.H., a minor child, regularly spent time at Jonathan and Sabrina Feliciano's (collectively "the Felicianos") house. In February of 2010, S.H. went sledding with her father, her fifteen year-old neighbor C.D., the Felicianos, and their two young children. After sledding, she and C.D. went over to the Felicianos' house to watch television. Mr. Feliciano, Jonathan's father, was also present. S.H. sat on the couch between C.D. and Mr. Feliciano. While watching television, S.H. alleged that Mr. Feliciano reached over and rubbed her stomach, and then rubbed her vagina. At the time of the incident, S.H. was ten years old.

{¶3} Mr. Feliciano was indicted for gross sexual imposition, in violation of R.C. 2907.05(A)(4), with a sexually violent predator specification. He pleaded not guilty, and the matter proceeded to jury trial on the charge of gross sexual imposition. Mr. Feliciano waived his right to a jury trial on the sexually violent predator specification, and the matter was subsequently heard by the trial court.

{¶4} The jury found Mr. Feliciano guilty of gross sexual imposition, a third degree felony. In addition, the trial court found him to be a sexually violent predator. Mr. Feliciano was sentenced to four years to life imprisonment.

{¶5} Mr. Feliciano timely appealed and set forth four assignments of error for our consideration.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN WHOLLY PRECLUDING THE DEFENSE FROM CALLING IT'S ONLY WITNESS, OF WHOM THE STATE WAS AWARE, IN VIOLATION OF BOTH THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AS WELL AS SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION[.]

{¶6} In his first assignment of error, Mr. Feliciano argues that the trial court erred in precluding the testimony of Detective Carpentiere as a sanction for an alleged violation of the rules of discovery. Specifically, Mr. Feliciano argues that, although the detective was not listed as a potential witness in discovery, prohibiting his testimony was not the appropriate sanction.

{¶7} In response, the State contends that the sanction was proper because Mr. Feliciano's attorney, Mr. Stepanik, (1) failed to provide a witness list pursuant to Crim.R. 16, (2) failed to lay a proper foundation for the impeachment of the State's witnesses, (3) and failed to proffer the details of Detective Carpentiere's testimony to the trial court.

{¶8} "Although a criminal defendant has the right to present witness testimony on his behalf, a trial court may 'exclude such evidence when the orderly administration of justice is threatened by the accused's failure to promptly disclose witnesses.'" State v. Calise, 9th Dist. No. 26027, 2012-Ohio-4797, ¶ 30, quoting State v. Moon, 74 Ohio App.3d 162, 169 (9th Dist.1991). "The rules of discovery, and more specifically Crim.R. 16, imbue trial courts with the discretion to exclude testimony that is not disclosed in a timely manner in order to prevent surprise and ensure a fair trial." Calise at ¶ 30, citing State v. Barrios, 9th Dist. No. 06CA009065, 2007-Ohio-7025, ¶ 18. "Exclusion is a permissible sanction 'as long as it would not completely deny the defendant his constitutional right to present a defense.'" Barrios at ¶ 18, quoting State v. Sinkfield, 2d Dist. No. 18663, 2001 WL 1517314, *8 (Nov. 30, 2001). Because a trial court's decision to exclude testimony is a discretionary one, we review a court's decision to exclude evidence under an abuse of discretion standard of review. Barrios at ¶ 18. An abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶9} We look to the Supreme Court of Ohio's decision, Lakewood v. Papadelis, 32 Ohio St.3d 1 (1987), for guidance with this matter. In Papadelis at paragraph two of the syllabus, the Court stated that "[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." Further, the Court noted that "'[t]he philosophy of the Criminal Rules is to remove the element of gamesmanship from a trial.'" Papadelis at *3, quoting State v. Howard, 56 Ohio St.2d 328, 333 (1978). As such, "[t]he purpose of discovery rules is to prevent surprise and the secreting of evidence favorable to one party. The overall purpose is to produce a fair trial." Papadelis at *3.

{¶10} Papadelis also sets forth a list of factors to be considered by the trial court prior to issuing a sanction, including: "the extent to which the prosecution will be surprised or prejudiced by the witness' testimony, the impact of witness preclusion on the evidence at trial and the outcome of the case, whether violation of the discovery rules was willful or in bad faith, and the effectiveness of less severe sanctions." Id. at *5.

{¶11} In the present matter, it is undisputed that defense counsel did not comply with the State's request for discovery. The Prosecutor indicated that she had asked counsel to file discovery at their last hearing, but he never filed any discovery or reciprocal discovery. Further, defense counsel admitted that, although he did not provide the State with a witness list, he contemplated the possibility of calling Detective Carpentiere to testify as an impeachment witness. Defense counsel proffered that the only thing he wanted to ask Detective Carpentiere was "whether the statements that were represented to have even been made or not made by [S.H. and C.D.] are in fact true."

{¶12} Defense counsel indicated that he verbally informed the Prosecutor that he might call Detective Carpentiere as a witness. However, the Prosecutor denied being put on notice regarding defense counsel's intentions. In addressing defense counsel, the trial court stated:

I guess maybe that is the troubling thing is that you thought there was a possibility you might call a witness, and yet you chose never to file any discovery, not even the most basic that almost every attorney I've ever seen files, even when they don't plan a case, any witness on the Prosecutor's witness list or any that may be adduced at a later time and informed of to the State.

But what you are telling me is that you anticipated the possibility of calling Detective Carpentiere.

And I've got to be honest with you. The whole point of the changes in the Rules of Discovery were [sic] to remove the concept of gamesmanship. To provide notice through the Court.

I'm not going to put * * * on that type of gamesmanship.

You can decide you are not going to give any witnesses, but then you can [sic] decide in the middle of trial that you are going to call somebody in your case in chief when you have provided no witnesses.

(Emphasis added.)

As to the verbal notice issue, the court said:

Once again, [Mr. Stepanik], I'm not disputing that you said that. [The Prosecutor] doesn't remember that. But be that as it may, all that indicates to me is that you had prior knowledge that you might call him and provided no written notice as required and chose at this point for your case in chief to call somebody from the other side who you gave no notice of their being a witness for your side.

So, that being said, I'm going to deny your request to call Detective Carpentiere based on the Rules of Discovery. I don't think I even have to get to the inconsistent statement question at this point, though I think there is a strong chance that you would, even if given notice, you would have had a difficult time getting that evidence out based on the foundation that was laid during the cross- examination.

{¶13} Unlike the attorney in Papadelis, defense counsel in this case did not proffer the specifics of Detective Carpentiere's anticipated testimony. In Papadelis at *5, the appellant's attorney proferred that the first witness would have testified that:

[H]e inspected the boiler located in the building on the date the violation allegedly occurred. He found the boiler was set at seventy-five degrees and that it was fully operational. He would have further testified that heat was being adequately provided. Additionally, he would have explained that he went to Cinema Transit, the tenant that had complained about the heat, and found the building to be cool; that he brought the fact that the garage doors in the back had been left open all day to the attention of individuals at Cinema Transit; and that he had questioned them on a number of occasions and told them it was difficult to provide heat to these premises when the garage doors were left open because the building was not well insulated.

The second witness would have testified "that she saw the garage doors open on February 6 and 7." Id.

{¶14} Here, the record indicates that defense counsel merely advised the trial court that he planned to use the detective's testimony to offset the prior inconsistent statements of S.H. and D.C. In addition, he alleged, without further explanation, that "[t]he witnesses have made several statements which are not accurate[.]"

{¶15} Because the trial court was not apprised of Detective Carpentiere's anticipated testimony, it could not fully consider and weigh all of the factors set forth in Papadelis, including: the extent to which the State would be surprised or prejudiced by the detective's testimony, the impact of precluding the detective's testimony on the evidence at trial and the outcome of the case, and the effectiveness of less severe sanctions. However, even with limited information, the trial court's colloquy indicates that it did inquire into the circumstances surrounding this discovery rule violation. See Papadelis at paragraph two of the syllabus. In doing so, the trial court concluded that (1) the State was not put on notice of defense counsel's intention to call Detective Carpentiere as a witness, (2) defense counsel chose not to file even the most basic form of discovery, (3) Detective Carpentiere's testimony would likely be excluded for other procedural reasons, and (4) permitting the testimony would encourage gamesmanship in violation of the spirit of the criminal rules. Therefore, based upon the record before us, we cannot say that the trial court abused its discretion in excluding Detective Carpentiere's testimony.

{¶16} Mr. Feliciano's first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN DENYING [MR.] FELICIANO'S MOTIONS FOR JUDGMENT OF ACQUITTAL AS THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE OF GUILT[.]

{¶17} In his second assignment of error, Mr. Feliciano challenges the sufficiency of the State's evidence. Specifically, Mr. Feliciano argues that: (1) pursuant to R.C. 2907.01(B), the State did not put on any evidence that the alleged touching of S.H. was done for the purpose of sexually arousing or gratifying either person, (2) two out of three the State's witnesses, C.D. and Sabrina Feliciano, did not actually see any inappropriate touching of S.H., and (3) the State told

S.H. to use the word "vagina" on the witness stand.

An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. See also State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). "In essence, sufficiency is a test of adequacy." Id.

{¶18} Mr. Feliciano was convicted of one count of gross sexual imposition in violation of R.C. 2907.05(A)(4). R.C. 2907.05(A)(4) states that "[n]o person shall have sexual contact with another, not the spouse of the offender * * * when * * * [t]he other person * * * is less than thirteen years of age, whether or not the offender knows the age of that person." Further, "'[s]exual contact' means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B).

{¶19} In State v. Clay, 9th Dist. No. 04CA0033-M, 2005-Ohio-6, this Court addressed the issue of sexual arousal or gratification, stating that "[t]here is no requirement that there be direct testimony regarding sexual arousal or gratification." Further, "[i]n the absence of direct testimony regarding sexual arousal or gratification, the trier of fact may infer from the evidence that [the appellant's] purpose was such from the 'type, nature and circumstances of the contact, along with the personality of the [appellant].'" Id., quoting State v. Cobb, 81 Ohio App.3d 179, 185 (9th Dist.1991).

{¶20} Here, in describing the incident, S.H. testified as follows:

Q. What did you do when you got into the house?

A. We just sat down and watched TV.

Q. Who was sitting watching TV with you?

A. [Mr. Feliciano and C.D.]

Q. Tell me when you were sitting--where were you sitting on the couch?

A. I was sitting in the middle.

Q. And what happened next?

A. [Mr. Feliciano] rubbed my ...


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