STATE OF OHIO, Plaintiff-Appellant, vs. JEREMY BROWN, Defendant-Appellee.
APPEAL NOS. C-180236, C-180237, C-180261, C-180262
TRIAL NOS. C-17TRC-41638A, C-17TRC-41638B, C-18TRC-702A, C-18TRC-702B
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
May 1, 2019
2019-Ohio-1615
WINKLER, Judge.
Criminal Appeals From: Hamilton County Municipal Court. Judgments Appealed From Are: Reversed and Cause Remanded.
Krista Gieske, for Defendant-Appellee.
OPINION.
{¶1} Plaintiff-appellant the state of Ohio appeals the judgments of the trial court dismissing the charges against defendant-appellee Jeremy Brown. We determine that the trial court erred in holding that the police violated Brown’s due-process rights by failing to turn over video evidence from Brown’s traffic stop; therefore, we reverse.
Factual Background and Procedural Posture
{¶2} On October 23, 2017, Mariemont police initiated a traffic stop of a vehicle driven by Brown. As a result of that stop, the state charged Brown with operating a vehicle while under the influence of drugs or alcohol (“OVI“) under
{¶3} At the hearing on Brown’s motion to dismiss, Officer Tom Ostendarp testified that he had administered field-sobriety tests to Brown, and that he had turned on his cruiser’s dash camera before administering the tests. When he received Brown’s motion to preserve evidence, Officer Ostendarp looked for the video from Brown’s stop in the department’s computer system, even though he does not typically handle such requests. Officer Ostendarp could not locate the video, and he admittedly forgot to place a request for the video to Officer Adam Geraci, the person who typically handles the video data collection. By late 2017, someone placed a request to Officer Geraci for the video of Brown’s stop.
{¶5} The trial court determined that the Mariemont police officers did not act in bad faith in failing to turn over the video of Brown’s stop, however, the trial court determined that the recording was materially exculpatory, and that the failure to preserve the video violated Brown’s due-process rights. The trial court granted Brown’s motion to dismiss. The state appeals.
Law and Analysis
{¶6} In its sole assignment of error, the state argues that the trial court erred in granting Brown’s motion to dismiss. This court has jurisdiction to review a trial court’s decision granting a motion to dismiss a criminal complaint under
{¶7} As an initial matter, we address Brown’s argument that the state failed to prosecute the appeals related to the OVI charge under
{¶8} The case at bar presents a different procedural posture than Benson. In Benson, the defendant had been convicted of two charges, and the defendant’s appeal addressed only the trial court’s decisions with respect to the OVI charge. Here, the trial court dismissed all charges related to Brown’s traffic stop, even the failure-to-yield charges, after finding that the state’s failure to produce the video of the field-sobriety tests violated Brown’s due-process rights. Even though the state’s assignment of error and arguments therein challenge only the trial court’s decision on Brown’s motion to dismiss, the trial court dismissed all charges. Therefore, the state has prosecuted its appeal as to all of Brown’s dismissed charges.
{¶9} This court reviews de novo a trial court’s decision on a motion to dismiss on the basis that the state failed to preserve materially exculpatory evidence, or destroyed potentially useful evidence in bad faith. State v. Battease, 1st Dist. Hamilton Nos. C-050837 and C-050838, 2006-Ohio-6617, ¶ 14.
{¶10} The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects a criminal defendant from being convicted when the state either fails to preserve materially exculpatory evidence or destroys, in bad faith, potentially useful evidence. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865.
{¶12} Evidence is materially exculpatory if it (1) “possesses ‘an exculpatory value that was apparent before the evidence was destroyed’ ” and (2) is ” ‘of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ ” Powell at ¶ 74, quoting California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). “The possibility that [evidentiary material] could have exculpated [the defendant] if preserved or tested is not enough to satisfy the standard of constitutional materiality.” Youngblood at 56. The defendant bears the burden to show that the evidence was materially exculpatory. Powell at ¶ 74. However, if the defendant requests preservation of the evidence, and the state subsequently fails to preserve it, then the burden shifts to the state. State v. Acosta, 1st Dist. Hamilton Nos. C-020767, C-020768, C-020769, C-020770 and C-020771, 2003-Ohio-6503, ¶ 6.
{¶13} The record shows that the video evidence of Brown’s stop was lost before Brown’s request to preserve evidence. After Brown filed his motion, the police could not locate the video of Brown’s stop because of a system-wide malfunction. The police determined that the problem had begun months prior to Brown’s stop. Because the evidence shows that the video had been lost prior to Brown’s motion to preserve, the burden remains with Brown to show that the video was materially exculpatory.
{¶14} At the hearing on Brown’s motion to dismiss, the only testimony offered was that of Officers Ostendarp and Geraci, and no evidence was offered as to
{¶15} If the missing evidence is not materially exculpatory, but “potentially useful,” then a different rule applies. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 77. Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. Youngblood, 488 U.S. at 58, 109 S.Ct. 333, 102 L.Ed.2d 281. “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 fraud. It also embraces actual intent to mislead or deceive another.” (Internal citations and quotations omitted.) Powell at ¶ 81.
{¶16} Here, the trial court determined that the police did not act in bad faith because the cruiser video did not download properly, and the police did not discover this malfunction until after Brown filed his motion. Brown argues that Officer Ostendarp acted in bad faith by failing to submit a request for the video to Officer Geraci, the officer in charge of data collection. Brown likens Officer Ostendarp’s inaction to cases in which courts found bad faith when officers failed to follow
{¶17} At the time of Brown’s stop, the station policy for checking whether the video system worked properly was every three to six months. Officer Geraci checked the system in early or mid-August, and it was working. Brown’s stop occurred in October, and Officer Geraci checked the system in December, when he uncovered the problem. Although the Mariemont police could have discovered the faulty video downloads prior to late 2017, nothing in the record suggests that the police breached a known duty, or acted with a dishonest purpose or ill will in failing to uncover the problem. Therefore, the police did not act in bad faith by failing to preserve the video from Brown’s traffic stop.
Conclusion
{¶18} Brown has not met his burden to show that the video of his OVI traffic stop was materially exculpatory, and the police did not act in bad faith in failing to preserve the video. Therefore, Brown’s due-process rights were not violated, and the trial court erred in granting Brown’s motion to dismiss. We sustain the state’s assignment of error. We reverse the judgments of the trial court and the cause is remanded for further proceedings on Brown’s charges.
MYERS, P.J., and CROUSE, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.