COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
                       COUNTY OF CUYAHOGA
                           NO. 75697
STATE OF OHIO, EX REL.        :    PETITION FOR WRIT OF
MICHAEL PENN                  :    MANDAMUS
                              :
               Relator        :    MOTION NO. 3875
                              :
          vs.                 :    JOURNAL ENTRY AND OPINION
                              :
MICHAEL HORN, ASSISTANT       :
PROSECUTING ATTORNEY          :
CUYAHOGA COUNTY, OHIO         :
                              :
               Respondent     :
                              :
DATE OF JOURNALIZATION   :    FEBRUARY 25, 1999
JUDGMENT                 :    WRIT DISMISSED.
APPEARANCES:
For Relator              :    MICHAEL PENN, Pro Se
                              No. 271-404
                              P. O. Box 5500
                              Chillicothe, Ohio 45601
For Respondent           :    WILLIAM D. MASON,
                                Cuyahoga County Prosecutor
                              LISA REITZ WILLIAMSON, Assistant
                              Justice Center, Courts Tower
                              1200 Ontario Street
                              Cleveland, Ohio 44113
                               -2-
JAMES M. PORTER, A.J.:
     Relator has requested  by letter  that respondent  assistant
prosecuting  attorney copy   the  examination report  done on  my
vehicle as  part of  the investigation   which  led to  relator's
prosecution and conviction in State v. Penn, Cuyahoga County Court
of Common  Pleas Case  No. CR-284542.   In  this action,  relator
requests that this court compel respondent to provide relator with
a copy of the  report.  He also  requests that this court  compel
 disclosure of evidence if there was, favorable to the accused, of
that of a kung fu knife,  or fighting knife having a double  edge
blade with black sheath.   Complaint.
     Relator  argues  that  Crim.R.  16(B)(1)(c)  requires   that
respondent provide a copy of the report as well as  disclosure of
evidence.   Respondent has filed a motion for summary judgment.
     Unfortunately, the motion does not adequately address the
     claim stated  in  relator's  complaint.    Furthermore,
     although this motion  is denominated as  a  motion  for
     summary judgment, it does not rely on matter outside the
     pleading.  Compare Civ.R. 56 and 12.  As a consequence,
     respondent's motion for summary judgment must be denied.
State ex rel.  Smith v. Sutula (May  1, 1996), Cuyahoga App.  No.
70390, unreported.  Likewise, in this action, respondent's motion
for summary judgment does not rely on matter outside the pleading
and must be denied.
     Nevertheless, we dismiss this action sua sponte for failure to
state a claim upon which relief can be granted.
     This court affirmed relator's conviction in State v. Penn (May
26, 1994),  Cuyahoga  App.  No. 65234,  unreported.    Obviously,
                               -3-
relator's trial  occurred  several years  ago.   This  court  has
previously noted that the  continuing duty to disclose  in Crim.R.
16 applies  prior to or during trial,  Crim.R. 16(D), and that it
is doubtful that mandamus lies to compel discovery years after a
trial and  conviction.  State  ex rel. Flagner  v. Arko (Feb.  5,
1998), Cuyahoga App. No. 72779, unreported, at 8-10, affirmed State
ex rel. Flagner v. Arko (1998), 83 Ohio St.3d 176, 699 N.E.2d 62.
Likewise, we dismissed an action in mandamus in which the relator
argued, inter alia, that  Crim.R. 16 required that we compel  the
prosecutor to provide various records to relator.  State ex  rel.
Delgado v. Court of Common Pleas (Feb. 5, 1998), Cuyahoga App. No.
73341, unreported, at 7-8.
     At this time, years after relator's trial, Crim.R. 16 does not
establish  a clear  legal  duty  for respondent  to  provide  the
requested items.  Accordingly, we dismiss this action sua sponte.
Relator to pay costs.
     Writ dismissed.
ANN DYKE, J., CONCURS.
                              JAMES M. PORTER,
                              ADMINISTRATIVE JUDGE
.