[Cite as State v. Woelke, 2017-Ohio-4034.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-16-27

        v.

MARK D. WOELKE,                                           OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-16-28

        v.

MARK D. WOELKE,                                           OPINION

        DEFENDANT-APPELLANT.


                 Appeals from Seneca County Common Pleas Court
                    Trial Court Nos. 15CR0256 and 16CR0032

                                     Judgments Affirmed

                              Date of Decision: May 30, 2017


APPEARANCES:

        Dorothy L. Williams for Appellant

        Angela M. Boes for Appellee
Case No. 13-16-27, 13-16-28


SHAW, J.

       {¶1} Defendant-appellant, Mark D. Woelke (“Woelke”), appeals the October

28, 2016 judgment of the Seneca County Court of Common Pleas, in case number

15CR0256, journalizing his conviction by a jury for one count of Burglary, in

violation of R.C. 2911.12(A)(3),(D), a felony of the third degree, and sentencing

him to a prison term of thirty-six months. Woelke also appeals the October 28, 2016

judgment of the Seneca County Court of Common Pleas, in case number 16CR0032,

journalizing his conviction by a jury for six counts of Burglary, in violation of R.C.

2911.12(A)(2),(D), all felonies of the second degree, and three counts of Grand

Theft of a Motor Vehicle, in violation of R.C. 2913.02(A)(1),(B)(5), all felonies of

the fourth degree, and sentencing him to an aggregate prison term of eighteen years

and thirty-six months to run consecutive to his prison term imposed in case number

15CR0256.

       {¶2} On appeal, Woelke assigns as error the trial court’s decision overruling

his motions to compel and motions for acquittal. Specifically, Woelke challenges

the trial court’s finding that the investigating detective’s notes, which were not

disclosed in discovery by the prosecution, were not exculpatory evidence.

                           Facts and Procedural History

       {¶3} On October 19, 2015, at 11:50 a.m., Officer Gabriel Wedge of the

Fostoria Police Department was traveling to his office from his residence in Seneca


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County when he observed a female driving a vehicle suspected to be involved in a

number of daytime burglaries and thefts in the area. Officer Wedge followed the

vehicle to his neighbor’s home and witnessed Woelke exit the home and throw

something into the trunk of the vehicle, which was later determined to be a flat

screen television. Knowing that Woelke was not a resident of the home, Officer

Wedge pulled into the driveway to attempt to block the vehicle from leaving, but

Woelke, who was now in the driver’s seat, was able to drive through the adjacent

field and around Officer Wedge’s vehicle. Detective Wedge pursued the vehicle in

a high-speed chase, but eventually lost track of it in Wood County and decided to

stop the pursuit due to the fact that the rate of speed at times was dangerously high

and that he was driving an unmarked vehicle which did not have lights or sirens.

       {¶4} Officer Wedge was later able to determine the identity of the female he

observed driving the car as Jennifer Godsey. Woelke was indicted for a third degree

felony burglary offense, in case number 15CR0256, to which he entered a plea of

not guilty. Godsey was also indicted for complicity to burglary. Godsey eventually

entered into a plea agreement with the prosecution and agreed to provide

information regarding the burglaries and thefts. Godsey revealed that she helped

Woelke break into numerous homes and buildings to steal personal property from

April 2015 to October 2015. She explained that Woelke chose a property to enter

looking for ATVs, guns, televisions, money or jewelry. She then drove around the


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area while Woelke was in the home or out structure and, after sufficient time had

passed, she circled back to pick him up with the stolen items. The two then drove

to Toledo to exchange the objects for heroin, or sometimes money, that they

received from a drug dealer named “Freddie.” The pair then returned to Woelke’s

mother’s home where they used the drugs. They stayed at the home for days or

weeks at time, depending on how much heroin they received. Once they consumed

all the drugs in their possession they set out to find another residence to burglarize.

       {¶5} On January 6, 2016, Godsey agreed to ride in a vehicle with Detective

Reinbolt of the Seneca County Sheriff’s Office and the investigator from the Seneca

County Prosecutor’s Office.      The three drove around the county as Godsey

identified the locations where Woelke committed the burglary and theft offenses.

She also recalled the items that were taken from each location and the mode of

Woelke’s entry. Detective Reinbolt wrote down the addresses and information as

Godsey relayed it. Detective Reinbolt returned to his office and cross checked the

addresses and details of the offenses in his database, which confirmed the

information given by Godsey.

       {¶6} On February 18, 2016, in case number 16CR0032, an eleven count

indictment was returned against Woelke alleging that Woelke committed eight

counts of second degree felony Burglary and three counts of Grand Theft of a Motor




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Vehicle, each a fourth degree felony. Woelke entered pleas of not guilty to the

charges and the case proceeded to discovery.

         {¶7} On September 15, 2016, the trial court granted the prosecution’s motion

to consolidate case number 15CR0256 and case number 16CR0032 for purposes of

trial.

         {¶8} On October 13, 2016, Woelke filed a Motion to Compel Additional

Discovery in each case claiming that the prosecution had failed to provide certain

requested discovery, including any written or recorded statements made by Godsey

during the course of the investigation, as well as any investigative reports or notes

made by law enforcement. The prosecution filed a response claiming it had fully

complied with the discovery request.

         {¶9} On October 17, 2016, the trial court granted the prosecution’s motion

to dismiss with prejudice Counts Ten and Eleven of the indictment in case number

16CR0032.

         {¶10} On October 25, 2016, the case proceeded to a two-day jury trial on the

remaining charges. Prior to opening statements, and outside the presence of the

jury, the trial court addressed the pending motions to compel with the parties on the

record. Defense counsel raised an issue with respect to a reference made by

Detective Reinbolt in a recorded interview with Godsey to handwritten notes

Detective Reinbolt had taken during the “ride-along” with Godsey. The defense


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claimed that they had not received any handwritten investigation notes from the

prosecution in discovery despite the specific request being made. (Tr. Trans. at 142,

144). The prosecution explained that any material or notes used in the investigation

in relation to Godsey’s interview was incorporated into Detective Reinbolt’s

investigation report. The prosecutor further contended that any and all notes were

work product and were destroyed after they were compiled into the formal report,

which was provided to the defense in discovery. (Id. at 143).

       {¶11} The prosecutor informed the trial court that she had not seen the notes

and conferred with Detective Reinbolt who relayed to her that the notes in question

“consisted only of five different addresses on a piece of paper when [Detective

Reinbolt and Godsey] went to the location in the County where many of [the]

reported burglaries had occurred. There weren’t many notes taken on them at all.

What the notes consisted of were basically the location, what—was entry made,

how was entry made, was Ms. Godsey with the Defendant at the time and what

items were stolen from the locations. ” (Tr. Trans. at 162).

       {¶12} The prosecutor confirmed that the handwritten notes had been

destroyed, but the contents were rewritten in Detective Reinbolt’s formal

investigation report and that there was no intention to conceal the contents from the

defense. Moreover, the prosecutor stated that the State planned on calling both

Godsey and Detective Reinbolt to the stand during its case-in-chief. Woelke’s


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defense counsel renewed the objection asserting that the prosecution had failed to

comply with its discovery request and moved for acquittal. The trial court overruled

the motions for acquittal and motions to compel additional discovery concluding

that the defense’s discovery request had fully been complied with by the State and

therefore there was no ground for acquittal on that basis.

       {¶13} The case continued to trial where the State presented the testimony of

thirteen witnesses, including Godsey and Detective Reinbolt, and the defense

presented the testimony of two witnesses in its case. In addition, the recorded

interview with Godsey, which provided the basis for the defense’s discovery

objection, was also played for the jury at trial on Godsey’s cross-examination by the

defense. The jury returned a verdict convicting Woelke of one count of third degree

felony Burglary in case number 15CR0256, and six counts of second degree felony

Burglary and three counts of fourth degree felony Grand Theft of Motor Vehicle in

case number 16CR0032.

       {¶14} Woelke filed this appeal, asserting the following assignment of error.

       THE TRIAL COURT ERRED IN RULING THAT THE
       DETECTIVE’S NOTES WERE NOT EXCULPATORY
       EVIDENCE.

       {¶15} In his sole assignment of error, Woelke contends that Detective

Reinbolt’s handwritten notes taken during the January 2016 “ride along” with

Godsey, which the record indicates were subsequently incorporated into Detective


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Reinbolt’s final report and destroyed, were exculpatory evidence that the

prosecution should have disclosed in discovery and that the State’s failure to do so

violated his due process rights.

                        Discussion of the Handwritten Notes
                             in the Recorded Interview

       {¶16} As previously indicated, the recorded interview of Godsey with

Detective Reinbolt was played for the jury at trial during Godsey’s cross-

examination by defense counsel. The interview took place approximately a week

after Godsey completed the “ride along” with Detective Reinbolt and Mr. Noffs, the

investigator with the county prosecutor’s office. The record demonstrates that the

contents of the interview are duplicative of the testimony given by Godsey and

Detective Reinbolt at trial.

       {¶17} In the interview, Godsey gave a general background on how she and

Woelke met, described the pattern of conduct they employed to facilitate the

burglaries and thefts, and their motive for committing the offenses. Detective

Reinbolt explained to Godsey during the interview that he had written down the

addresses of the locations she had identified on the ride along and took pictures of

the properties.

       Det. Reinbolt: Okay. Okay. So what I’m going to do now is I’m
       just going to show you pictures. What I did is after we went out
       last Wednesday, I wrote down the addresses and I went out and
       took pictures of the residences. I just need you to confirm. I’m
       going to show you pictures. And if you’re not sure, say it. If you,

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      you know, just let me know. And on each one just let me know
      what you believe was stolen. If you were there. And all that good
      stuff, okay.

      Mr. Noffs: Now, these houses, these are the houses that she
      pointed out to us.

      Det. Reinbolt: Correct, correct.

      Mr. Noffs: We did not, you told us all along as we were driving
      down the road, you would tell us if this is the one house.

      Godsey: Correct.

      Det. Reinbolt: None, there’s none that’s added here to try and
      trick you or left out. These are all the addresses, all the residences
      that you took us to last week, okay.

      Godsey: uh-huh.

(Tr. Trans at 326-27). At trial, Woelke’s defense counsel highlighted the following

exchange on the recorded interview to insinuate that Detective Reinbolt’s

handwritten notes were material exculpatory evidence.

      Det. Reinbolt: Okay. Okay. This one, I forgot the picture, but this
      is one that you, it was 11267 West Township Road 35. And it was
      a burglary. And let me just see if this is on the report.

      Mr. Noffs: She pointed this house out.

      Det. Reinbolt: She pointed this house out. Yeah. I just don’t have
      a picture. Shotgun and a flat, 55-inch flat screen TV was stolen.

      Godsey: Yeah.

      Det. Reinbolt: Does that ring a bell?



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Case No. 13-16-27, 13-16-28


        Godsey: It does. The shotgun does because I (inaudible)
        anything. He had put a thing—I don’t know what the house
        looked like.

        Det. Reinbolt: Right. I apologize. But he forced his way into this
        house?

        Godsey: Yes.

        Det. Reinbolt: Okay.

        Mr. Noffs: And we should note that they, that that incident and
        in your notes of that house that you pointed out to us under that—

        Godsey: Is this the one where he was trying to take meat out of
        the, out of the freezer?

        Detective Reinbolt: That’s Sandusky County.

(Tr. Trans at 328-30). At this point, defense counsel stopped the audio recording of

Godsey’s interview and questioned Godsey about Detective Reinbolt’s notes on the

stand at trial.

        Defense Counsel: All right. So I assume you were listening along,
        Ms. Godsey?

        Godsey: Yes.

        Defense Counsel: And the detective mentioned that he took some
        notes and was referencing notes to refresh your memory; is that
        right?

        Godsey: No, sir.

        Defense Counsel: You didn’t hear that?




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       Godsey: They weren’t refreshing my memory with any of their
       notes. There were two places I was getting confused, and one of
       them was in a separate county.

       Defense Counsel: Okay. But they indicated that they had taken
       notes and they were refreshing your memory. No? You’re saying
       that didn’t happen?

       Godsey: They never relayed information from their notes to me.
       Everything that I said was by my own free will. They never told
       me to say anything or reminded me of anything. They simply
       showed me pictures and I told them how he got in and what he
       took.

(Tr. Trans at 330-31).

                                   Relevant Law

       {¶18} Whether the State’s failure to preserve evidence rises to the level of a

due process violation depends on whether the lost or destroyed evidence involves

“material exculpatory evidence” or “potentially useful evidence.” State v. Powell,

132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 73. Evidence is constitutionally material

when it possesses “an exculpatory value that was apparent before the evidence was

destroyed, and [is] of such a nature that the defendant would be unable to obtain

comparable evidence by other reasonably available means.” Id. at ¶ 74, quoting

California v. Trombetta, 467 U.S. 479, 489 (1984). If evidence is materially

exculpatory, its suppression violates a defendant’s due process rights, and requires

dismissal of the charge. State v. Glunt, 10th Dist. Franklin No. 09AP-962, 2010-

Ohio-3024, ¶ 9, citing State v. Johnston, 39 Ohio St.3d 48 (1988). If the evidence


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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. Powell at ¶ 77, quoting State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-

5239, ¶ 10.

                                      Analysis

       {¶19} Woelke contends on appeal that Detective Reinbolt’s handwritten

notes were material to determine whether the notes were consistent with Detective

Reinbolt’s investigative report and his testimony regarding the interview with

Godsey. However, the record does not support Woelke’s characterization of the

handwritten notes as either “material” or “exculpatory.” Godsey provided similar,

detailed testimony at trial to that given in the narrative by the State and disputed

defense counsel’s claim that Detective Reinbolt used his notes to refresh her

memory during her interview. Moreover, Detective Reinbolt’s testimony provided

the only evidence in the record regarding the nature of these handwritten notes,

which he stated consisted of five addresses of possible locations where the

burglaries had occurred. He testified that he did not show or mention the addresses

on the piece of paper to Godsey during the ride along.

       {¶20} The prosecution also presented additional evidence which supported

the jury’s verdicts convicting Woelke of the burglary and theft offenses. For

example, Officer Wedge testified to the events on October 19, 2015, that led to the


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apprehension of Woelke and Godsey for the burglary offense charged in case

number 15CR0256. Detective Reinbolt also testified that at several of the crime

scenes law enforcement had found physical evidence, such as a single shoe print

consistent with the size of a male footprint on a door indicating a forced entry, as

well as images from a trail camera of a male, who Godsey identified at trial as

Woelke, making a forced entry into one of the homes.

       {¶21} Based upon the evidence presented at trial, Woelke has failed to

demonstrate that Detective Reinbolt’s handwritten notes possessed any exculpatory

value that was apparent before they were destroyed and were of such a nature that

Woelke would be unable to obtain comparable evidence by other reasonably

available means.    Furthermore, Woelke has not established that there was a

reasonable probability that the result of the proceedings would have been different

if these handwritten notes had been disclosed to the defense. See State v. Johnston,

39 Ohio St.3d 48, 61 (1988), citing U.S. v. Bagley, 473 U.S. 667, 682 (1985).

       {¶22} Moreover, we note that at trial defense counsel objected based upon

the prosecution’s failure to preserve “potentially exculpatory evidence,” however

we find that on appeal Woelke has failed to demonstrate that the State acted in bad

faith in failing to preserve Detective Reinbolt’s handwritten notes. (Tr. Trans. at

438); See State v. Mapp, 3d Dist. Union No. 14-10-34, 2011-Ohio-4468, ¶ 25 (“[I]f

evidence is not materially exculpatory, but only ‘potentially useful,’ the State’s


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failure to preserve it does not violate due process unless the defendant can show the

State acted in bad faith.”). “Bad faith implies something more than mere bad

judgment or negligence; rather, ‘[i]t 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.’ ” Glunt, 2010-Ohio-3024 at ¶ 16, quoting

State v. Benson, 152 Ohio App.3d 495, 2003-Ohio-1944, ¶ 14 (1st Dist.) (citations

omitted); Powell, 2012-Ohio-2577 at ¶ 81. Any indication of such conduct on

behalf of the State is simply not present in the record.

       {¶23} Accordingly, we do not find that the trial court erred in overruling

Woelke’s motions to compel additional discovery and motions for acquittal on the

basis of the State’s failure to preserve Detective Reinbolt’s handwritten notes.

       {¶24} The assignment of error is overruled and the judgments are affirmed.

                                                               Judgments Affirmed

PRESTON, P.J. and ZIMMERMAN, J., concur.

/jlr




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