State v. Fox, 2012 Ohio 4805

Appellant Scott Fox was incarcerated at CCI when the incident occurred in the dispensary area on March 31, 2011.
Officers responded to a “man down” alarm; Fox allegedly punched Officer Horton and resisted orders.
Fox was indicted May 27, 2011 for assault under R.C. 2903.13 and pled not guilty.
During discovery Fox learned of surveillance tapes and requested preservation and production of the video.
The State advised the tape had not been preserved; Fox moved for sanctions/dismissal or preservation at an August 25, 2011 hearing.
The trial court found the tape was not materially exculpatory and that no bad faith destruction occurred; Fox ultimately pled no contest and was sentenced to six months; he appealed urging due process violation for the missing tape.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether missing videotape was materially exculpatory evidence	Fox argues tape would exculpate by showing involuntary contact	Fox contends tape could prove innocence if preserved	No; tape not materially exculpatory
Whether missing tape was potentially useful evidence and whether state acted in bad faith	Tape could have been used to impeach witnesses and show timing	State did not act in bad faith; tape destruction was routine	Not bad faith; evidence not shown to be potentially useful in a way that violated due process
Burden-shifting on preservation when evidence was not specifically requested	State had burden to show non-exculpatory nature once specific request was made	No shifting; defendant did not specifically request before destruction	Burden remained with Fox; no shift because no specific pre-destruction request

State v. Geeslin, 116 Ohio St.3d 252 (Ohio Supreme Court 2007) (standard for materiality and bad faith in missing-evidence cases)
State v. Johnston, 39 Ohio St.3d 48 (Ohio Supreme Court 1988) (Brady materiality standard in exculpatory evidence)
United States v. Bagley, 473 U.S. 667 (U.S. Supreme Court 1985) (materiality of exculpatory evidence for due process)
State v. Terry, 2004-Ohio-7257 (Ohio 2nd Dist. 2004) (missing videotape not automatically exculpatory unless bad faith shown)
State v. Durham, 2010-Ohio-1416 (Ohio 8th Dist. 2010) (destruction of video under routine procedure not bad faith)
State v. Acosta, 2003-Ohio-6503 (Ohio 1st Dist. 2003) (missing tape not exculpatory where not proven)
State v. Benson, 2003-Ohio-1944 (1st Dist. 2003) (burden on state when defendant requests tape; possible exculpatory value)
State v. Benton, 136 Ohio App.3d 801 (6th Dist. 2000) (tape potentially exculpatory; burden considerations when requested)
State v. Smith, 2005-Ohio-1374 (2nd Dist. 2005) (tape may be potentially useful; need bad-faith showing)