*1
Appellee.
Ohio,
Appellant,
The
State
v. Rivas,
469,
[Cite
Jose unlawful sexual conduct with a minor attempted on a trial ruling denying based court him the opportunity by allowing expert state his to examine the state’s court, hard drive. The state of has appealed judgment Ohio to this agreed and we its proposition address law concerning propriety of trial court denying compel discovery motion of a law confidential enforcement investigatory particularized record absent showing need. We conclude that when, pursuant a Crim.R. discovery request, prosecutor has written data purports accurately reflect stored on hard a court not order examination drive unless the defense makes a that the state has provided spoliated evidence. Because Rivas failed burden, meet that judgment appeals of the court of is reversed. History
Facts and Procedural Wilson, a of the Xenia Alonzo member Detective January On *2 Unit, an chat logged onto Internet Police Division’s Internet Child-Protection Rivas, using the Molly. named Jose 14-year-old as a female posing service and JRivasl23, Molly, asking age, gender, for her contacted screen name conversation, e- eventually an online and Wilson The two carried on photograph. Molly a a detective. Rivas e-mailed teenage photo police Rivas a of Xenia mailed and protruding through an erect underwear exposed, penis of a male with picture and offered her him. He then her depicted propositioned to believe it led her day, him. contacted Rivas the next activity in sexual with Wilson engage to $200 at Inn in Holiday to meet her the arranged offered her and again and Rivas $200 to her a agreed page that had a and Rivas send Molly pager, advised she Xenia. Inn Holiday with his room number. conversations, arranged transcript After of the online Wilson printing in the hotel. He waited an office behind the
to have surveillance team watch room, that Inn Rivas checked into a and he observed Holiday front desk at the as name, JRivasl23, in the online suspect’s Rivas matched the screen the name Jose thereafter, to and soon assigned communications. The hotel room 302 that contained the number 302. Wilson page received an electronic Wilson Inn, him Holiday subsequently, grand jury at and indicted arrested Rivas the a minor. attempted and unlawful sexual conduct with importuning trial, preserve Prior to Rivas moved to the state’s electronic evidence to computer by a mirror of the hard drive of the state’s used Wilson sought image him. trial court ordered the state to allow Rivas to communicate with The prosecution the but the refused to allow the defense retrieve inspect computer, drive, “security prosecution of the hard reasons.” The image citing mirror compact containing of the conversations and a disc transcript copy electronic of the online communications. computer-generated compel Rivas moved to the evidence and to suppress trial court image a mirror of the hard drive. The provide
the state concluding motion and the motion to suppress compel, denied the an exact of its require produce copy did not the state “in some evidence that what has been allegations hard drive the absence of In the trial court found no evidence that particular, is not accurate.” Rivas and Wilson had of the Internet communications between transcript in It concerns compromised any way.” explained been “altered or to altered or deleted data on the hard drive were by relating identified Rivas using fact that the same for different rebooting relieved because accuracy integrity transcript not have affected the cases would immediately following of the chats printed had the hard Detective Wilson those sessions. The trial court destroyed further noted Rivas had his own him verify which would have allowed provided by state. At Rivas alleged transcript accurately did not reflect his
Internet communications with Wilson. He asserted that he had communicated woman, 41-year-old with a not a 14-year-old girl, and denied receiving photograph of a 14-year-old girl during the online His contention is exchanges. belied fact that there were several doing references homework, supervision by her her grandmother, the fact that she had to be home hour, aby certain and his assent that she would be able to with that comply time deadline. Rivas challenged of some of the statements appearing the transcript. jury found guilty of importuning and attempted unlawful sexual conduct with a minor. *3 convictions, The court of appeals reversed both holding that trial
{¶ 7}
the
court had violated
right
Rivas’s
to a fair trial when it refused Rivas the
opportunity to verify
the
and completeness of the computer transcripts
state,
prepared by the
stating that “a defendant should not
required
be
to take
* * *
the word of the adverse party
that a transcript of information stored on a
* *
Rivas,
State v.
drive is accurate
473,
App.3d
Ohio
2007-Ohio-
¶
875 N.E.2d
at 15. The appellate court
that
concluded
the trial court
could have upheld the state’s need
safeguard
the confidentiality of information
stored on the computer while protecting
right
Rivas’s
to a fair trial by conducting
¶
in
its own
camera inspection of the hard drive.
Id. at 17. The cause is before
the court upon
acceptance
our
the state’s appeal. State v.
116 Ohio
1455,
Proposition of Law court, appeal On to this the state contends the trial court properly {¶ 8} denied Rivas’s compel motion to discovery because the hard drive contained confidential law enforcement investigatory records protected from disclosure 149.43(A)(1)(h). under the in state, Public Records Act R.C. According the Rivas also failed to meet his burden to discovery show that the provided by the incomplete inaccurate, 16(B) state was or otherwise and therefore Crim.R. did not require an inspection computer’s hard drive. 149.43(A)(1)(h) Rivas maintains that R.C. relates to public records
requests protect police and does not discovery records from in the course of 16(B)(1)(c) litigation. urges He that the plain language of Crim.R. permits him to inspect and copy the hard explaining requires the rule tangible evidence that is material preparation Further, to the of his defense. asserts the hard drive is material evidence expert’s because his transcripts concerns testimony specific regarding established the communications between Wilson and Rivas. represented whether, in in are called to consider a case which the upon We duty provide discovery by delivering has with its prosecutor complied of a the accused has a transcript police computer, of evidence from the hard drive hard drive without image making to obtain mirror right in that the information is adulterated, or spoliated. Analysis
Law and 16(B)(1)(c) governs tangible Crim.R. the disclosure of documents and motion of the by prosecuting attorney: “Upon evidence defendant the court prosecuting attorney permit inspect shall order the defendant books, documents, tangible objects, buildings or photograph papers, photographs, thereof, places, copies portions possession, or available to or within the state, custody preparation or control of the and which are material to the of his defense, or at prosecuting attorney are intended for use as evidence Thus, or were obtained from or to the defendant.” as relevant to belong 16(B)(1)(c) case, permits inspect tangible this the accused to evidence preparation that is material to the of his defense. question party going which bears burden forward with
evidence when the accused seeks to the state pursuant to Crim.R. one of appears impression be first this court. However, (1992), Knight Chillicothe App.3d Ohio 599 N.E.2d 871, the court held that it is initial the accused who bears the burden of *4 16(B) establishing materiality facie case of before Crim.R. prima requires the to turn tangible state over evidence. 16(a)(1)(E) Further, Rule of current Federal Rules of Criminal 13}
{¶ Procedure, 16(B)(1)(c), analogous requires which is to Crim.R. that “the defen- object dant that disclosure of the document or tangible show[ ] is material defense” before it in requires government produce tangible evidence its possession. Advisory Fed.R.Crim.P. 16 Committee Note on the 1974 Amend- 16(a)(1)(E) ment. Fedex-al courts Fed.R.Crim.P. intex-preting predecessor and its 16(a)(1)(C), provision, Advisox-y Fed.R.Crim.P. Committee Notes on the 2002 Amendments, making prima have held the accused bears the burden of facie of entitlement to the materials showing sought discovery before the rule “ 16, requires government produce them. ‘To obtain under Rule ” v. showing materiality.’ United States a defendant must make a facie of prima Zone v. Mandel (C.A.9, 2005), 1101, 1107, (C.A.9, quoting United States 403 F.3d v. 1990), 1215, 1219; (C.A.7, 1991), Thompson United States 914 F.2d 944 F.2d (“To 1331, successfully government 1341 a claim that the violated press [Fed.
473 16(a)(1)(C)], R.Crim.P. the defendant must at a prima showing make least facie requested defense”); that the items are material to his United States v. Carras- (“defendant (C.A.1, 1989), 10, quillo-Plaza 12 873 F.2d did not make a request, with ‘a together showing facie for the materiality,’ statements as 16(a)(1)(C)]”); under required (C.A.5, v. Buckley [Fed.R.Crim.P United States 1978), 498, 16(a)(1)(C) 586 F.2d (“Contrary Buckley’s assertion that Rule ‘mandate(s) the production such documents it upon request,’ upon is incumbent a defendant to make Prima facie showing ‘materiality’ order to obtain discovery”). Moreover, in other situations in which the accused asserts that evidence,
government withheld or destroyed
this court has
held
the accused
bears the burden of establishing his case. The defendant bears the burden of
showing
the state acted in bad faith in destroying
evidence,
potentially useful
¶
Geeslin,
252,
State v.
prosecutor has provided written purports to accurately reflect data stored on a computer hard court not order an examination of hard drive unless the defense makes a prima that the state has or spoliated evidence. *5 no presented evidence that the state to produce refused material evidence or that it him provided with spoliated evidence. he much Although makes of the fact that Wilson continued use the computer after his arrest and that rebooting computer changes the data in thousands of up computer system, files used to start Rivas failed to demon- the content of the e-mails or files at rebooting strate that would alter Further, “if expert agreed issue here. even his own that the officer testified that chats, screen, they obviously these were on his computer he reviewed he immediately they represent reviewed them after and do an accurate replication conversations,” continuing those to use and reboot the would not have integrity affected the and of the hard of the communications discovery. specifically the state its Rather than produced testifying altered, any evidence had in fact been Rivas’s could expert explained he establish the of the state’s discovery assuming any falsification falsification had — actually only by examining computer. the hard drive of the state’s occurred— However, speculation conjecture regarding possibility and of material evi dence on the hard drive do not demonstrate in the appearing inaccuracy discovery that the state so as to entitle Rivas to the hard drive inspect (E.D.N.Y. verify and transcript. Cf. United States Persico 2006), F.Supp.2d (“Basing discovery requests nothing on more than conjecture mere any request renders for information outside the ambit of Rule 16 non-starter”). situation, Pérsico involved a similar factual as the sought included “electronic surveillance recordings reports, physical and surveil reports lance the names of certain photographs, confidential sources with notes, records, related and law enforcement reports telephone various toll information,” register and pen pager and the defendants contended that only they could discern the existence of impeachment exculpatory evidence within these materials. Id. at Noting government’s representations 217-218. that it had complied with its discovery obligations, explained the court that “the claim mere that the sought enough.” items are ‘material’ is not Id. not a Ultimately, this is case about false or or a incomplete discovery 16(B). involving Here,
case the denial of due process or the violation of Crim.R. fully complied state has with and all the discovery required by 16(B). However, based on speculation expert of an witness and altered, unsupported Rivas’s assertion that the transcript has been the court of appeals right verify concluded Rivas had a the discovery provided by the appellate state. The court’s decision makes the wrong presumption about discovery. presumption should be that counsel with comply our rules of discovery. Presuming the state’s lack of with an compliance discovery based on opposing party, assertion the state to ordering its on assertion, such an sends the wrong message legal community to the and does not represent the law this state.
Conclusion case, In having this after received a written transcript purporting reflect a series of chat-room from a police conversations the hard drive of *6 of files from an electronic version containing disc compact and a computer the completeness and drive, verify a the right Rivas asserted hard of the image a mirror by obtaining provided he had been discovery with which hard drive. computer his support allegation However, failed to evidence provide lacked course of during to him provided had
that what been own or discarded his destroyed and he authenticity, completeness, or accuracy, prima to make a ability him the given would have hard which computer adulterated, false, or incomplete, provided the state had showing facie to Crim.R. discovery pursuant a has received party evidence. Where spoliated a image computer of a mirror 16(B)(1)(c), production not order a trial court will adulterated, false, showing incomplete, a face hard drive without Here, compel a motion to Rivas submitted provided. evidence has been spoliated basis, failed to he has therefore evidentiary a and discovery that lacked sufficient satisfy proof. his burden transcript of the printed copy of the provided Because the state has instance, his burden of Rivas has failed meet in this and because
conversations adulterated, false, incomplete, to show that the state has proof evidence, complied obligations pursuant the state has with its spoliated of the 16(B)(1)(c), police a mirror of the hard drive image and access to Crim.R. of the defense. therefore reverse preparation is not material to the We appeals. of the court of judgment Judgment reversed. Lundberg Stratton, JJ., Lanzinger, O’Connor, concur. C.J., Cupp, JJ.,
Moyer, Pfeifer dissent.
Cupp, J., dissenting. language with the majority’s holding plain contrasts Because
{¶22} 16(B)(1)(c) mechanisms otherwise exist within appropriate and because information not relevant Rules to from disclosure safeguard the Criminal defense, I must dissent. respectfully defendant’s of the Criminal discovery provisions in the requirement There is no printed version who wishes to
Rules that defendant first make a prima hard drive must electronic data stored on state’s or spoliated that the state asserting discrepancy for between defendant’s basis Although evidence. that resides on the data and the version version of the printed majority unusual, creating, as justification there is no drive seem does, judicial gloss plain language over the opinion permanent Moreover, discovery request. rules to short-circuit defendant’s such imposing of the rule on the ignores plain language by imposing obligations standard beyond “materiality” defendant the rule’s standard. only evidentiary limitations Crim.R. are materials *7 (1)
must be in the state’s
and must
possession
preparation
be material to the
(2)
defense,
by
prosecuting attorney
intended for use
as evidence at the
(3)
case,
by
or
obtained from or owned
the defendant.1 In this
the computer hard
drive was in the
possession
state’s
and was material
to defendant’s defense
Further,
use,
form,
theory.
prosecutor
printed
intended to
the data
16(B)(1)(c).
contained on the hard drive as
of the state’s
part
evidence. Crim.R.
16(B)(1)(c)
In
majority’s holding, nothing
contrast to the
in the text of Crim.R.
a
requires
any
defendant to demonstrate
unreliability
threshold indicia of
of the
challenged
custody.
evidence
the state’s
The trial court should have ordered
the state to produce the hard drive for the defendant’s
or
inspection
copying. As
court
appellate
recognized, “forcing litigant
rely upon
adverse party’s
representation that a
is
without
transcript”
allowing any
accurate
verification of
v.
is inconsistent with general notions of a fair trial.
State
¶
473,
information
for
needed
his defense are delineated in Crim.R.
time,
the use of protective orders and restrictions on the
place, and manner of the
inspection
copying
of evidence. There has
been no
that the trial
court in this instance
not
could
have allowed Rivas access to the
state’s
16(B)(1)(c)
required by
hard drive as
Crim.R.
simultaneously
while
protecting
obligation
requested
1.
tangible
The initial
to demonstrate that
disclosure of a document or
object
preparation
See,
always
placed
is material
to the
of a defense has
been
on the defendant.
e.g.,
(“Upon
permit discovery
Crim.R.
motion of the
[a
defendant
court shall
* *
tangible
*”);
preparation
documents and
which
items]
are material
to the
of his defense
(1994),
ex rel Steckman v. Jackson
rule);
United
(quoting
70 Ohio St.3d
inspection, the evidence examining trial court best left to the sound discretion decision exists within Crim.R. it, safeguard that such a the fact remains and facts before plain is unsupported than standard improvising 16. Rather we consequences, unforeseen likely criminal rule and to have language by the rule should be contemplated safeguards specifically hold that the should defense. of information not relevant to defendant’s disclosure prevent used I must dissent. respectfully *8 J., Moyer, C.J., Pfeifer, foregoing opinion. concur Elizabeth A. Haller, Attorney, and County Prosecuting K. Greene Stephen Ellis, for Prosecuting Attorney, appellant. Assistant Hinners, Mezibov, Mezibov, A. Stacy Marc D.
Law of Marc Office appellee. Tracy, Appellee, v. Industrial ex rel. Commission State Appellant. AutoZone, Inc., Ohio; Tracy Comm,., ex rel. v. Indus.
[Cite as 477,