State v. Nguyen

Citation157 Ohio App.3d 482,811 NE 2d 1180
Decision Date04 June 2004
Docket NumberNo. L-03-1152.,L-03-1152.
PartiesThe STATE of Ohio, Appellant, v. NGUYEN et al., Appellees.
CourtUnited States Court of Appeals (Ohio)

Julia R. Bates, Lucas County Prosecuting Attorney, Thomas A. Matuszak and John J. Weglian, Assistant Prosecuting Attorneys, for appellant.

Spiros P. Cocoves, Toledo, Charles M. Boss, Maumee, and Adrian Cimerman, Toledo, for appellees.

Jeffrey M. Gamso, Toledo, for amici.

HANDWORK, Presiding Judge.

{¶ 1} Plaintiff-appellant, the state of Ohio, appeals from the judgment of the Lucas County Court of Common Pleas, which granted the motion of defendants-appellees, Can T. Nguyen, Quang T. Ton, and Thach Wana, to discover the field performance records ("real world reports") of a trained and certified drug dog.

Part I: Facts and Statement of the Case

{¶ 2} On January 1, 2003, Trooper Stacey Arnold of the Ohio State Highway Patrol was assigned to criminal patrol at the Findlay post. As a certified canine handler, Trooper Arnold was accompanied by her drug dog, Ringo. Shortly before 8:00 a.m., the trooper observed a motor vehicle on the Ohio Turnpike traveling at a speed well below the posted limit of 65 miles per hour. No conditions existed at that time that would indicate that the operator of the vehicle was required to drive so slowly. Trooper Arnold also noticed that the driver, who was later identified as Nguyen, was very rigid, staring straight ahead, and was driving with both hands on the steering wheel.

{¶ 3} The trooper decided to follow the vehicle, and she later saw it drift over the right edge line and then drift back onto the center dotted line. Trooper Arnold determined that these actions constituted a marked lane violation under R.C. 4511.33, and she initiated a traffic stop of the vehicle.

{¶ 4} During the stop, the trooper observed numerous cell phones inside the vehicle, a road atlas, and that the vehicle had a "lived-in" appearance. Because she suspected criminal activity, Arnold engaged appellees in conversation. She discussed the purpose of the stop, asked them about their destination, and asked Nguyen for his driver's license and the vehicle's registration.

{¶ 5} During this conversation, Trooper Arnold was unable to determine whether Nguyen was under the influence of alcohol or was overly tired. However, Nguyen was very nervous, his hands were trembling, and he stared straight ahead, refusing to make eye contact with the trooper. Wana and Ton were also very nervous. None of the defendants was able to locate the vehicle's registration.

{¶ 6} Through the window of the motor vehicle, the trooper saw two large, full, hockey style bags with a blanket thrown over them in the rear of the cargo area. Based on her training and experience, she believed that the bags contained illegal drugs. At that point, the trooper returned to her patrol car and decided that she would use Ringo in order to ascertain whether there were any drugs in appellees' vehicle. She then called for a backup unit.

{¶ 7} As the backup unit arrived, Trooper Arnold started to walk Ringo around the car; he immediately alerted at the left rear portion of the cargo area. Trooper Arnold ordered appellees out of their vehicle. She proceeded to open the back hatch, pulled out the duffel bags, and opened them. The bags contained more than 100 pounds of B.C. (British Columbia) bud marijuana.

{¶ 8} Appellees were arrested and each was charged with one count of trafficking in marijuana, a violation of R.C. 2925.03(A) and R.C. 2925.03(C)(3)(f), and one count of possession of marijuana, a violation of R.C. 2925.11(A) and (C)(3)(f). Different counsel was appointed for each appellee.

{¶ 9} Each appellee filed a motion to suppress the physical evidence seized, asserting that the stop, detention, and search violated the Fourth Amendment to the United States Constitution. They "orally amended" their motions to include an allegation that Ringo was unreliable; therefore, Trooper Arnold lacked probable cause to engage in a warrantless search of their automobile.

{¶ 10} In addition, appellees made discovery requests in which they asked the trial court to disclose information about Ringo that included his real world reports. The state provided Ringo's training and certification records, his veterinarian records, and his real world reports that occurred in those instances where (1) Ringo alerted to the presence of the odor of drugs that he was trained to detect and these drugs were actually discovered or their recent presence was confirmed; and (2) Ringo did not alert to the presence of the odor of drugs he was trained to detect but these drugs were actually discovered or their recent presence was confirmed. The state declined to produce Ringo's real world records where (1) Ringo alerted to the presence of the odor of drugs that he was trained to detect, but those drugs were neither discovered nor their recent presence confirmed; and (2) Ringo did not alert to the presence of the odor of drugs that he was trained to detect, but those drugs were neither discovered nor their recent presence confirmed.

{¶ 11} Appellees subsequently filed a supplemental discovery request in which they asked the trial court to, among other things, compel the production of the real world reports that were not disclosed by appellant, the state of Ohio. After a joint hearing on the motion to suppress and discovery issues, the trial court determined that, because they are material to proof of his reliability, all of Ringo's real world reports are discoverable under Crim.R. 16(B)(1)(c).

{¶ 12} Appellant filed a timely motion for leave to appeal. We granted that motion. Appellant asks this court to consider the following assignment of error:

{¶ 13} "The trial court erred when it ordered the prosecution to disclose the contested canine reports to the defendants."

{¶ 14} Appellant contends that the trial court's discovery order is contrary to law because canine real world reports are immaterial to a determination of reliability and are, therefore, not subject to disclosure under Crim.R. 16. Before addressing appellant's assignment of error, we must determine the appropriate standard to employ in our review of the case sub judice.

Part II: Standard of Review

{¶ 15} This case provides an interesting issue as it relates to the standard of review to be employed by this court. The prosecution stated in its motion that discovery motions are governed by an abuse of discretion standard. That assertion is generally correct, as this and other courts have noted.1 In fact, if sanctions are levied by the trial court under Crim.R. 16(E)(3) for failing to comply with its order to produce discovery under Crim.R. 16(B)(1)(c), abuse of discretion is the proper standard for the review of those sanctions.2 However, this case is different. This court recognizes that when an "assignment of error calls for us to review a legal question, we review it de novo."3

{¶ 16} A de novo review is proper in certain situations that are, arguably, present here. In State v. Today's Bookstore, Inc., the Second District Court of Appeals ruled that "when the trial court's discretionary decision is based on a misconstruction of the law or an erroneous standard, that decision will not be accorded the deference that is usually due to the trial court, but instead will be reviewed de novo; it is appropriate for an appellate court to substitute its judgment for that of the trial court where matters of law are involved."4 In fact, in the leading case on this issue, Castlebrook, Ltd. v. Dayton Properties Limited Partnership, the court stated that "in determining a pure question of law, an appellate court may properly substitute its judgment for that of the trial court, since an important function of appellate courts is to resolve disputed propositions of law."5 The court then went on to state that "confusion has been engendered by an unfortunate choice of words when courts have said on occasion that an abuse of discretion connotes `more than an error of law.' It would be more accurate to say that an abuse of discretion is `different from an error of law.' A trial court's purely legal determination will not be given the deference that is properly accorded to the trial court with regard to those determinations that are within its discretion."6

{¶ 17} Other appellate courts, moreover, adopted Castlebrook and applied its rule to criminal cases.7 Additionally, the Eighth District Court of Appeals found that "while an appellate court will give great deference to the factual findings of a trial court, an appellate court must independently determine, as a matter of law, whether the trial court erred in applying the substantive law to the facts of the case."8 Indeed, the Fourth District Court of Appeals employs a de novo review when issues of materiality under Crim.R. 16 are involved.9

{¶ 18} Here, as will be addressed more fully later, the trial court employed the improper legal standard when it determined that the real world records for drug dog Ringo were material and, thus, discoverable under Crim.R. 16(B)(1)(c). Therefore, even though in a normal case an abuse of discretion standard may be used for an objection to a criminal discovery decision, this court's review is de novo because the trial court's decision was "based on a misconstruction of the law or an erroneous standard."10

Part III: Materiality Under Crim.R. 16

{¶ 19} The standard for materiality under Crim.R. 16 is defined by the Ohio Supreme Court in the syllabus to State v. Johnston.11 That court ruled that "in determining whether the prosecution improperly suppressed evidence favorable to an accused, such evidence shall be deemed 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...

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