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YOUNGSTOWN -- The Mahoning County Prosecutor's Office has filed a motion asking county Common Pleas Court Judge Maureen Sweeney to reconsider her dismissal last week of a felonious assault charge against defendant Marquez Jones, 27.
Jones' attorney, David Betras, requested the dismissal as a result of late arriving evidence -- photographs and a crime lab report -- fewer than 24 hours before Jones' bench trial was set to begin July 29 in Sweeney's courtroom.
Betras said he wanted to use one of the photos during the trial that he learned about late but did not know whether the other photos would be useful because he hadn't had time to see all of them yet. He said one photo showed a single bullet shell casing in a car, which is relevant to the number of shots fired inside of a car.
Betras also told Sweeney that there is a "consistent pattern of (evidence) being provided late" to the defense in criminal cases in Mahoning County. "The court's always doing the least restrictive thing to sanction them," Betras said of the county prosecutor's office and police personnel. "The underlying problem is an institutional, decadelong problem of (evidence) violations that need to be sanctioned appropriately so it stops," Betras said.
County Prosecutor Lynn Maro issued a news release later July 29 stating that "In this case, more than a week before trial, the Mahoning County Prosecutor's Office reached out to YPD to ensure all discovery was produced. The police department failed to comply with our request."
During the discussion about what to do about the late-arriving evidence, Betras offered to enter guilty pleas on Jones' behalf to Jones' two lower-level felonies in the case -- tampering with evidence and failure to comply with the order or signal of a police officer -- if Sweeney dismissed the felonious assault.
A short time later, Sweeney agreed, saying "The court will dismiss the felonious assault" and the hearing was quickly adjourned. Later that day, Jones did enter guilty pleas to the two lower-level felonies and will be sentenced later.
On Wednesday, county Assistant Prosecutor Patrick Fening filed a written response to Betras' motion to dismiss the felonious assault, which Betras submitted to the court at 7:49 a.m. July 29. Fening received a copy when he arrived for court that morning.
"Shortly thereafter, an evidentiary hearing was held on the defendant's motion," and the motion was approved. Betras cited case law in State v. Jackson in his motion for dismissal, which Fening said "addressed the elements necessary to find the State of Ohio committed a violation" of the rules related to prosecutors turning over evidence in criminal cases to the defense.
That ruling states that "prosecutorial violations" of the rule result in a "reversible error only when there is a showing that ... the prosecution's failure to disclose was willful," that the "disclosure of the information prior to trial would have aided the accused's defense" and that the defendant was put at a disadvantage because of it.
"The non-disclosure regarding the photographs and crime lab sheet was not willful, nor" harmful to the defense, Fening stated.
He first learned of the photos Tuesday, July 28, when Betras informed him of them at 1:51 p.m. July 28, Fening stated. Prosecutors "immediately obtained the photographs from the Youngstown Police Department and provided defense counsel with both digital and physical copies of the photographs by 2:30 p.m."
As for the crime lab sheet, the prosecutor's office contacted the Youngstown Police Department crime lab officer July 22 and at that time learned that the crime lab sheet existed and that prosecutors had not received it, Fening's filing states. It was agreed that the crime lab would email it as soon as possible. Prosecutors "did not hear anything further from the officer until the physical copy of the report was delivered to the prosecutor's office (July 28) at the same time as the photographs."
The crime lab sheet does indicate that 15 photographs were taken during the investigation, the filing states. Therefore, if the crime lab sheet had been obtained earlier, prosecutors would have known then that there also were missing photographs, the filing adds.
When the crime lab officer learned of the dismissal of the felonious assault charge, he told his superiors that he had sent the crime lab sheet to prosecutors. But while obtaining supporting documentation, he discovered that the email never made it to prosecutors. He found a computer-generated email indicating that the email failed to send because of an incorrect email address.
"While the events described above are somewhat embarrassing and do not excuse the untimely disclosure, the state asserts that it demonstrates that it was not a willful violation of the (evidence-providing) rules."
Fening's filing adds, "As (he) discussed during the July 29 evidentiary hearing, the photographs provided to the defendant on July 28 did not contain any information that was not previously known to (defense) counsel. The facts alleged in this matter were largely agreed upon by the parties, including the locations of the incidents, the acts that both parties discharged firearms and the vehicle that the defendant was operating at the time of the incident."
Of the 15 photos, six were of the exterior of Jones' car, one is a blurry duplicate, and four are of the location and address placards of where the incident occurred. Two photos show a shell casing at the scene and two photos show a shell casing in the vehicle, Fening stated.
"The police report indicated that one shell casing was found at the scene and one shell casing was found in the vehicle," the filing states.
The Harris case established that judges being asked to dismiss charges in a criminal case over late evidence should "inquire into the circumstances surrounding a (late evidence) 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."
Fening's filing asked Sweeney to reverse the dismissal of the felonious assault. But if she believes that prosecutors committed an evidentiary-rule violation, he asked her to "consider a less severe sanction than dismissal of the offense."
THE INCIDENT
Jones was charged following a March 2025 incident on Youngstown's South Side in which he is accused of firing shots at a man on West Judson Avenue as part of an argument between Jones and another person. A friend went there to assist, and Jones was accused of firing his gun at the friend. The friend said he fired a gun also but only as Jones was driving away. No one was injured.