CITY OF CLEVELAND, PLAINTIFF-APPELLEE vs. NATASHA TOWNSEND, DEFENDANT-APPELLANT
No. 99256
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 12, 2013
[Cite as Cleveland v. Townsend, 2013-Ohio-5421.]
McCormack, J., E.A. Gallagher, P.J., and Kilbane, J.
Criminal Appeal from the Cleveland Municipal Court, Case No. 2012 CRB 018014
RELEASED AND JOURNALIZED: December 12, 2013
Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
City of Cleveland Law Director
Victor R. Perez
Chief City Prosecutor
Bidisha Bagchi
Assistant City Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant, Natasha Townsend, appeals her convictions in the Cleveland Municipal Court. For the following reasons, we affirm.
Procedural History and Substantive Facts
{¶2} On June 5, 2012, a complaint was filed against Townsend in the Cleveland Municipal Court, charging her with failure to comply in violation of
{¶3} Thе facts presented at trial were as follows: On June 2, 2012, Cleveland police officer Robert Zubek was directing traffic at Cleveland Hopkins International Airport on the lower baggage claim roadway when he encountered Townsend driving a minivan. Townsend arrived at the airport to pick up her sister. Officer Zubek and Townsend spoke. Officer Zubek testified that he informed Townsend that she could not leave her vehicle unattended outside the baggage claim area and that she needed to park in the parking garage if she intended to go inside the airport. Pursuant to Transportation Security Administration (“TSA“) safety regulations and mandates, no vehicles are permitted to be stopped or unattended near the terminal. Signs informing drivers of this mandate were posted throughout the area. Townsend testified that Officer Zubek instructed her to park outside the baggage claim area in contravention of the mandаte.
{¶4} The baggage claim area was congested during this time, and Officer Zubek continued to direct traffic. Shortly after speaking with Townsend, Zubek observed a
{¶5} Officer Zubek informed Townsend that he intended to cite her for failure to comply with his earlier parking instructions. To this end, Officer Zubek demanded her driver‘s license. Townsend refused to provide her license, and she enterеd the minivan, despite Officer Zubek informing her that he would arrest her if she refused his request. After three requests for Townsend‘s license, Officer Zubek called for backup. Townsend attempted to close the minivan door, but Zubek physically stopped her. As backup arrived on the scene, Officer Zubek informed Townsend that she was under arrest, and he ordered her to step out of the vehicle. Townsend refused and had to be forcefully removed. In the process of еffecting the arrest, Townsend smacked Officer Zubek‘s arm away and shoved him back against his car. Townsend attempted to flee but was taken to the ground by Officer Zubek and another officer. Townsend struggled with the officers, preventing them from handcuffing her on the ground. Only upon threat of being subdued by a taser did Townsend submit to arrest.
Assignments of Error
- The trial court erred, in derogation of defendant‘s right to due process of law, as guaranteed by the 14th Amendment to the Constitution of the United States, in denying defendant‘s motion to dismiss for vindictive prosecution.
- The trial court committed plain error in instructing the jury on the charge of failurе to comply, in that the jury was permitted to base its conviction on the failure of defendant to comply with one of two acts, one of which she had been acquitted of, in violation of defendant‘s right against double jeopardy, as guaranteed by the 5th Amendment to the Constitution of the United States.
- The trial court erred, in derogation of Defendant‘s right to due process of law, as guaranteed by the 14th Amendment to the Constitution of the United States, in denying Defendant‘s motiоn to dismiss for failure to preserve evidence.
{¶7} In her first assignment of error, Townsend argues that the trial court erred in denying her motion to dismiss for vindictive prosecution. The record does not reflect that Townsend filed such a motion. On June 19, 2012, Townsend filed a motion to dismiss based on double jeopardy and collateral estoppel, which was denied. On October 2, 2012, Townsend filed a second motion to dismiss, asserting that the city had destroyed “materially exculpatory” evidence. This motion was also denied. Townsend failed to raise the issue of vindictive prosecution before the trial court, and she now asks this court to find that the trial court erred by not, sua sponte, raising this argument for her and dismissing the case. We decline to do so.
{¶8} Defects in the institution of the prosecution and/or in the indictment must be raised before trial or they are waived.
{¶9} Townsend‘s argument under this assignment of error is based upon a separate Cleveland Municipal Court case that stemmed from the same incident of June 2, 2012, wherein she was charged with failure to display her driver‘s license, in violation of
{¶10} Having failed to either file a pretrial motion to dismiss on the grounds of vindictive prosecution by the city for Townsend‘s successful defense of the display of license refusal charge, or otherwise raise that issue in the trial court, Townsend has not preserved the issue for appellate review, and we will not consider that issue for the first time on direct appeal. State v. Cline, 2d Dist. Champaign No. 07CA02, 2008-Ohio-1866, ¶ 18.
{¶11} Even were we to assume for the sake of argument that Townsend had properly raised this issue before the trial court, we note that the timeline does not suggest vindictiveness on the part of the city. Townsend‘s parking incident occurred on Saturday June 2, 2012, at which point she was not only issued a ticket for her refusal to produce her driver‘s license pursuant to
Jury Instructions on Failure to Comply
{¶13} As discussed above, in addition to the charges in the present case, Townsend was charged with failure to display her licensе in the separate case to which we refer in the first assignment of error. Although she pleaded no contest in that case, she was found not guilty and the case was dismissed. Townsend now argues that the trial court erred by not including a jury instruction clarifying that she could not be found guilty of the failure to comply charge based upon her refusal to provide Officer Zubek with her driver‘s license.
{¶14} Because Townsend did not object to the jury instructions, we review this claim for plain error. State v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-Ohio-1446, ¶ 32;
{¶15} Tоwnsend bases her argument on this court‘s decision in State v. Jackson, 8th Dist. Cuyahoga No. 95920, 2011-Ohio-5920. The defendant in Jackson was charged with felonious assault, domestic violence, and endangering children. Jackson argued that
{¶16} This court noted that pursuant to
{¶17} In Jackson, we noted that it was impossible to determine if the jury convicted the defendant of child endangering based on punching his son in the stomach or burning him, or if some of the jurors convicted based upon оne incident and other jurors convicted him based on another. Id. at ¶ 45. We concluded that each member of the jury may not have based his or her decision on the same facts, thereby denying Jackson his right to a unanimous verdict. We also noted that the indictment failed to protect Jackson against double jeopardy in that it did not apprise Jackson of what occurrences formed the basis of the charges he faced, and the jury had no idea which charge referred to which act. Id. at ¶ 46-47.
{¶18} The present case differs from Jackson in an important respect. The failure to comply charge in the complaint against Townsend specifically contains a “to wit”
{¶19} Townsend‘s second assignment of error is overruled.
Failure to Preserve Evidence
{¶20} On July 10, 2012, Townsend filed a motion to preserve evidence, requesting the city preserve “any and all videotapes, audiotapes, DVD that may not have been used in charging the defendant.” Prior to trial, Townsend moved the court to dismiss the case, arguing that the city had destroyed materially exculpatory evidence, and in the alternative, that the city had, in bad faith, destroyed potentially useful evidence. Townsend‘s argument concerns video surveillance evidence made by Cleveland Hopkins Airport that would have recorded Townsend‘s interactions with Officer Zubek on June 2, 2012.
{¶22} This court has рreviously held that the possibility that evidentiary material could have exculpated the defendant if preserved or tested is not enough to satisfy the standard of constitutional materiality. State v. Durham, 8th Dist. Cuyahoga No. 92681, 2010-Ohio-1416, ¶ 12, citing Arizona v. Youngblood, 488 U.S. 51, 56, 109 S. Ct. 333, 102 L.Ed.2d 281 (1988). “A clear distinction is drawn by Youngblood between materially exculpatory evidence and potentially useful evidence. If the evidence in question is not materially exculpatory, but only potentially useful, the defendant must show bad faith on the part of the state in order to demonstrate a due process violation.” Geeslin at 254. Therefore, when evidence is only potentially useful, its destruction does not violate due
{¶23} The term “bad faith” generally implies something more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive, or ill will partaking of the nature of the fraud. It also embraces actual intent to mislead or deceive another. Durham at ¶ 13, citing State v. Smith, 2d Dist. Montgomery No. 20247, 2005-Ohio-1374, ¶ 7.
{¶24} In Durham, this court examined a situation where an alleged criminal incident was caught on videotape but no one viewed the videotape before it was erased. We noted that the videotape evidence might have been inculpatory or exculpatory or a combination of the two. We, therefore, held that the defendant was unable to demonstrate that the evidence was materially exculpatory, and we treated the erased video as only potentially useful.
{¶25} The holding in Durham, 8th Dist. Cuyahoga No. 92681, 2010-Ohio-1416, controls in this case as well. None of the parties viewed the video evidence prior to Cleveland Hopkins Airport erasing or recording over the incident. Furthermore, Officer Zubek testified that the cameras outside the airport are not fixed on one location and, as such, may not have recorded the incident at all. Pursuаnt to Durham, we cannot treat the missing video as materially exculpatory.
{¶26} Because the video does not qualify as materially exculpatory evidence, our inquiry turns to whether it would be potentially useful and whether the video was
{¶27} Although we find it troubling that neither the police nor the city bothered to make an earlier effort to inquire into the existence of potential video evidence prior to Townsend filing a motion to preserve evidence, we cannot say the facts of this case demonstrate a dishonest purpose, moral obliquity, or conscious wrongdoing on thе part of the city such that bad faith is established. See, e.g., State v. Gatliff, 12th Dist. Clermont No. CA2012-06-045, 2013-Ohio-2862, superceded on other grounds (finding no bad faith where the state failed to preserve potentially useful video evidence that was destroyed by a restaurant in the ordinary course of business).
{¶28} Townsend‘s third assignment of error is overruled.
{¶29} The judgment of the trial court is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
It is ordered that a special mandatе issue out of this court directing the municipal court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
TIM McCORMACK, JUDGE
MARY EILEEN KILBANE, J., CONCURS;
EILEEN A. GALLAGHER, P.J., DISSENTS (SEE ATTACHED DISSENTING OPINION).
CITY OF CLEVELAND vs. NATASHA TOWNSEND
No. 99256
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT
EILEEN A. GALLAGHER, P.J., DISSENTING
{¶30} I respectfully dissent from my learned colleagues. Because I find that the third assignment of еrror is dispositive of this case, it, alone, will be addressed.
{¶31} Appellant‘s third assignment of error states:
The trial court erred, in derogation of Defendant‘s right to due process of law, as guaranteed by the 14th Amendment to the Constitution of the United States, in denying Defendant‘s motion to dismiss for failure to preserve evidence.
{¶32} On July 10, 2012, appellant filed a motion to preserve evidence requesting the city preserve “any and all videotapes, audiotapes, DVDs that may not have been used in charging the dеfendant.” Prior to trial, appellant moved the court to dismiss the case, arguing that the city had destroyed materially exculpatory evidence and, in the alternative, that the city had, in bad faith, destroyed potentially useful evidence. Appellant‘s argument concerns alleged video surveillance evidence from the Cleveland Hopkins International Airport that potentially could have recorded appellant‘s interactions with Officer Zubek on June 2, 2012.
{¶34} Incredulously, it is the position of the city, and its witness testified, that any cameras at the airport are not stationary, may not have recorded this incident and that such recordings are retained for only 17 days.
{¶35} That position, and testimony, is beyond the pale. To suggest that the Cleveland Hopkins Internationаl Airport, the Department of Homeland Security or the Transportation Security Administration do not have security cameras that cover every square inch of airport property, its ingress and egress and further, that the video recording generated by these cameras is destroyed or taped over every 17 days is preposterous, particularly when there has been an incident, injury and subsequent arrest.
{¶37} In this case, the testimony of Officer Zubek and appellant are dichotomous and the surveillance video would have been the only unbiased evidence as to each of the interactions between the two. Therefore, a video recording of this incident was vital. However, we cаn never determine if the evidence was exculpatory because it allegedly had not been retained by the city.
{¶38} This court has previously held that the possibility that evidentiary material could have exculpated the defendant if preserved or tested is not enough to satisfy the standard of constitutional materiality. State v. Durham, 8th Dist. Cuyahoga No. 92681, 2010-Ohio-1416, ¶ 12, citing Arizona v. Youngblood, 488 U.S. 51, 56, 109 S.Ct. 333, 102 L.Ed. 2d 281 (1988).
A clear distinction is drawn by Youngblood between materially exculpatory evidence and potentially useful evidence. If the evidence in question is not materially exculpatory, but only potentially useful, the defendant must show bad faith on the part of the state in order to demonstrate a due process violation.
Geeslin, 116 Ohio St.3d at 254, 2007-Ohio-5239, 878 N.E.2d 1.
{¶39} Therefore, when evidence is only potentially useful, its destruction does not violate due process unless the police acted in bad faith when destroying the evidence. State v. Miller, 161 Ohio App.3d 145, 2005-Ohio-2516, 829 N.E.2d 751 (2d Dist.).
{¶41} In Durham, 8th Dist. Cuyahoga No. 92681, 2010-Ohio-1416, this court examined a situation where an alleged criminal incident was caught on videotape but no one viewed the videotape before it was erased. We noted that the videotape evidence might have been inculpatоry or exculpatory or a combination of the two. Therefore, we held that the defendant was unable to demonstrate that the evidence was materially exculpatory and treated the erased video as only potentially useful.
{¶42} The holding in Durham controls in this case as well. Allegedly, none of the parties viewed the video evidence prior to Cleveland Hopkins Airport erasing or recording over the incident. Pursuant to Durham, we cannot treat the missing video as materially exculpatory.
{¶43} Because the video does not qualify as materially exculpatory evidence, our inquiry turns to whether it would be potentially useful and whether the video was destroyed in bad faith. There is no dispute that the video qualifies as potentially useful because it could have provided the only objective view of the events in this case. I further find that the video was destroyed in bad faith.
{¶45} In the present case, the arresting officer testified that he was awаre of the surveillance cameras at the airport and that he knew the exact number of days that the airport would retain video evidence prior to its destruction. Despite this knowledge, the law enforcement officers involved in the case willfully ignored an opportunity to secure the best available evidence of the alleged crime. The city cannot possibly claim ignorance of surveillance video evidence of an incident in the middle of the roadway outside of Cleveland Hopkins Airport‘s baggage claim. Under these circumstances I would hold that the video evidence was destroyed in bad faith and appellant‘s due process rights were violated when the city willfully chose not to secure the video evidence prior to its destruction.