[Cite as State v. Arnett, 2018-Ohio-4227.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                        MIAMI COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 2018-CA-3
                                                   :
 v.                                                :   Trial Court Case No. 2017-CR-388
                                                   :
 TOMMY L. ARNETT                                   :   (Criminal Appeal from
                                                   :    Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                            Rendered on the 19th day of October, 2018.

                                              ...........

RYAN SPITZER, Atty. Reg. No. 0093515, Miami County Prosecutor’s Office, Appellate
Division, Safety Building, 201 W. Main Street, Troy, Ohio 45373
       Attorney for Plaintiff-Appellee

RENEE D. BUSSE, Atty. Reg. No. 0092823, 123 Market Street, P.O. Box 910, Piqua,
Ohio 45356
      Attorney for Defendant-Appellant

                                             .............
                                                                                             -2-


HALL, J.

       {¶ 1} Tommy Arnett appeals from his convictions for assault and harassment by

inmate. Finding no error, we affirm.

                                       I. Background

       {¶ 2} Arnett was first indicted on charges of harassment by inmate in December

2016. The charges resulted from an incident the month before at the Miami County Jail,

where Arnett was incarcerated, between Arnett and corrections officers, when he

allegedly struck one officer and repeatedly spit or tried to spit at the officers. The charges

were dismissed by the State in April 2017 pending the possibility of new evidence.

       {¶ 3} In August 2017, Arnett was reindicted on two counts of harassment by inmate

and also indicted on one count of assaulting a corrections officer. In discovery, the State

produced a video recording from cameras at the jail that it believed captured the incident.

Sometime after the video was produced, it was discovered that the video captured only

the immediate aftermath of the incident. According to the State, it contacted the jail and

asked it to send the full video recording, but jail personnel said that the video no longer

existed.

       {¶ 4} The case was tried to a jury in early 2018. Among those witnesses who

testified for the State were the corrections officers involved in the incident and the Sheriff’s

deputy who investigated. The corrections officers testified that, on November 7, 2016,

Arnett was upset, pounding on his cell wall, threatening officers, and attempting to flood

his cell. Lieutenant Tiffany Upham and Corrections Officers Jack Snyder and Jacob

Kerrigan removed Arnett from his second-floor cell to take him down to the first floor so

that the cell could be cleaned. Snyder testified that when Arnett walked out of the cell, he
                                                                                            -3-


“kind of did a little lunge” in Kerrigan’s direction. (Tr. 132). Snyder said that Arnett was

agitated, had clenched fists, and “just kind of tensed up like he was ready to fight Officer

Kerrigan.” (Id.). Snyder testified that, in the elevator, Arnett had a combative demeanor.

Kerrigan told Arnett to face the back wall, and when Arnett eventually turned around, he

grabbed the handrail. The officers told Arnett multiple times to put his hands behind his

back, but Arnett refused. Finally, the officers forced him to the floor and cuffed him. When

they exited the elevator, Arnett was still resisting, so Lieutenant Upham went to retrieve

the restraint chair. Snyder testified that he then saw Arnett “lift up and do a swinging strike

to the left side of Officer Kerrigan’s face,” striking him on his ear and cheek. (Id. at 137).

Kerrigan testified that as he was walking Arnett, Arnett “pulled away from me and struck

me in the left side of my face with an elbow.” (Id. at 162). Arnett continued to yell threats.

As the officers worked to put Arnett in the restraint chair, he spit at Officer Snyder and

tried to spit again, but Officer Kerrigan had put his hand over Arnett’s mouth.

       {¶ 5} Sergeant Randy Slusher responded to the disturbance and investigated the

incident. He testified that when he arrived not long after the incident had occurred, he

noticed right away that Kerrigan’s ear was “really red.” (Id. at 197). He photographed

Kerrigan’s ear and cheek, and the photograph was admitted at trial.

       {¶ 6} On the first floor of the jail, a camera points directly at the elevator from one

angle and another camera points to the same location from a different angle. The

corrections officers agreed that the cameras should have recorded the entire incident, but

the video recording played at trial submitted as a joint exhibit showed only the moments

immediately after the incident. Sergeant Slusher testified that he never requested or

watched the video from the cameras. No explanation was provided at trial for why the
                                                                                           -4-


preserved portion of video recording did not encompass the assault itself.

       {¶ 7} Arnett testified in his defense and denied assaulting Officer Kerrigan or

spitting at any of the officers. On cross-examination, he read a portion of his written

statement from the night of the incident, in which he stated that an officer, presumably

Officer Kerrigan, “ ‘put me in the chair and I jerked away from him. My elbow rubbed

across the face—across his face.’ ” (Id. at 226).

       {¶ 8} The jury found Arnett guilty on all three counts. The trial court sentenced him

to twelve months in prison on each count and ordered that he serve two of the sentences

consecutively for a total of twenty-four months in prison.

       {¶ 9} Arnett appealed.

                                        II. Analysis

       {¶ 10} Arnett’s sole assignment of error is a claim that trial counsel was ineffective:

       DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

       COUNSEL AT THE TRIAL LEVEL WHERE TRIAL COUNSEL FAILED TO

       FILE A MOTION TO COMPEL, MOTION TO SUPPRESS, OR MOTION TO

       DISMISS RELATIVE TO THE STATE’S FAILURE TO PRODUCE

       POTENTIALLY [EXCULPATORY] VIDEO EVIDENCE.

       {¶ 11} To establish a claim for ineffective assistance, Arnett must show both that

trial counsel’s performance fell below an objective standard of reasonableness and that

there is a reasonable possibility that but for counsel’s deficient performance the result of

the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). Arnett argues that it was objectively unreasonable for trial counsel not to file
                                                                                          -5-


a motion to compel, motion to suppress (testimony from the officers about the incident,

presumably), or motion to dismiss based on the State’s failure to produce or preserve the

video recording of the incident. The ultimate issue in any of these motions would have

been whether Arnett’s due-process rights were violated by the State’s failure to preserve

a portion of the video.

       {¶ 12} “The Due Process Clause of the Fourteenth Amendment to the United

States Constitution protects a criminal defendant from being convicted where the state

fails to preserve materially exculpatory evidence or destroys in bad faith potentially useful

evidence.” (Citation omitted.) State v. Bolden, 2d Dist. Montgomery No. 19943, 2004-

Ohio-2315, ¶ 51. 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.” California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d

413 (1984); State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 74.

“Potentially useful evidence indicates that the evidence may or may not have incriminated

the defendant. The failure to preserve evidence that by its nature or subject is merely

potentially useful violates a defendant’s due process rights only if the police or

prosecution acted in bad faith.” State v. Cox, 2d Dist. Montgomery No. 25477, 2013-Ohio-

4941, ¶ 88. “The defendant bears the burden to prove that the evidence in question was

materially exculpatory, not merely potentially useful.” State v. McClain, 2016-Ohio-838,

60 N.E.3d 783, ¶ 23 (2d Dist.), citing Powell at ¶ 74.

       {¶ 13} Arnett concedes that, under current law, he cannot satisfy his burden to

prove that a video depicting the entire incident would have been materially exculpatory.
                                                                                          -6-


He asks us to alter the burden of proof by placing the burden on the State to prove that

the destroyed evidence was not materially exculpatory. Arnett acknowledges that we

recently declined an invitation to alter the burden in State v. McClain, but he says that his

case presents a more compelling reason for doing so.

       {¶ 14} McClain also concerned unpreserved video recordings. In that case, the

defendant was convicted of heroin possession. The police received a report that a vehicle

was stopped at a light and that the driver was slumped over the steering wheel. Officers

responded, observed signs of intoxication, and administered field sobriety tests. When he

failed the tests, the officers arrested the defendant for operating a vehicle while

intoxicated (OVI) and took him to the police department, where a breathalyzer test was

administered. He was then taken to jail, where a search of the jacket he was wearing

turned up heroin in a pocket. Id. at ¶ 4-7.

       {¶ 15} The police cruiser had a dash camera that should have recorded the traffic

stop, and the jail had cameras that should have recorded the search. Approximately three

and a half months after the arrest, the defendant filed a motion to compel discovery and

to preserve any videos. The State represented that it did not know whether the video had

since been “taped over” but that it would “do everything it can in its power to do what it

can to get the video.” Id. at ¶ 34. Apparently, no video was located and no evidence was

presented that established why, though it appears that police department and jail

retention policies were to blame. 1 In addition to a motion to compel discovery, the


1 Apparently, the trial court found that the police department had a 90-day retention policy
on cruiser camera recordings and that the jail had a 60-day retention policy. We noted,
however, that there was “no evidence in the record of either of those policies (although
neither party appears to contest this), nor is there evidence that the video recordings that
[Defendant] sought were destroyed pursuant to those policies. In fact, there is no
                                                                                           -7-


defendant filed a motion to dismiss or suppress evidence. He argued that the cruiser

video was “highly relevant” to the issue of whether there was probable cause to arrest

him for OVI and that the jail video would have shown that the jacket in which the heroin

was found would not have fit him and did not belong to him. Id. at ¶ 13. The trial court

overruled the motions. The court found that the defendant had not met his burden of

proving that the dash cam video would be materially exculpatory, noting the independent

evidence of his intoxication—the officers’ observations and the failed breathalyzer test.

The trial court concluded that probable cause had existed for the arrest. The court also

found that, because a description of the jacket that the defendant was wearing was

available on a property receipt, the jail video was at best potentially useful, and that there

was no evidence that the video was destroyed in bad faith. Id. at ¶ 15-16.

       {¶ 16} We affirmed. The defendant claimed on appeal that his due-process rights

were violated by the destruction of the videos, arguing that the video recordings were

materially exculpatory and that the apparent destruction of them required the dismissal of

the charges. The defendant argued that we should alter the burden of proof, saying that

“the State should bear the burden of establishing that any destroyed evidence was not

materially exculpatory, particularly when a defendant faced potential incarceration.” Id. at

¶ 25. We declined to do so. Because the burden of proof is mandated by Ohio Supreme

Court and United States Supreme Court precedent, we found that, we “lack[ed] the

authority” to alter it. Id. The majority was critical of the current law placing the burden on

the defendant. 2 Nevertheless, “under current law, the defendant bears the burden to


evidence in the record that the video recordings have been destroyed, although
apparently this is not in dispute.” McClain at ¶ 37.
2 The present author, concurring, was not as critical of current law and wrote separately
                                                                                          -8-


establish that missing evidence is ‘materially exculpatory’ or that it was destroyed in ‘bad

faith,’ ” even though the latter is “a burden that is often overbearing.” Id. at ¶ 31.

       {¶ 17} In the present case, we are again invited to alter the burden of proof. Arnett

says that here, unlike in McClain, there is no independent evidence that establishes his

crime. The only other evidence of what happened was the testimony of those involved—

the officers and Arnett. The unpreserved video, he argues, would have established

conclusively whose version of the events was correct. In the trial court, says Arnett, the

State simply said that it did not have the video, offering no real explanation, and trial

counsel did not press for an explanation on the record, which made it all but impossible

for him to bear the burden of proving that the missing evidence was either materially

exculpatory or destroyed in bad faith.

       {¶ 18} Once again, we decline the invitation to alter the burden of proving material

exculpability or bad faith, and we do so for the reason that we gave in McClain: “As an

intermediate court of appeals, we lack the authority to alter the burden of proof mandated

by Ohio Supreme Court and United States Supreme Court precedent.” Id. at ¶ 25, citing

State v. Beavers, 2012-Ohio-6222, 986 N.E.2d 516, ¶ 26 (2d Dist.) (following high court

precedent to reject shifting the burden to the State to establish the inculpatory nature of

lost or destroyed evidence and rejecting the position that “evidence that has been

destroyed by the State may be treated as exculpatory, even though the exculpatory

nature was not apparent prior to the evidence’s destruction”).

       {¶ 19} Arnett has not satisfied his burden to prove that the missing portion of the


that it “strikes a reasoned balance on the question of who should bear the burden to
prove that unavailable evidence would likely make a difference.” McClain at ¶ 47 (Hall,
J., concurring).
                                                                                        -9-


video was materially exculpatory or that it was missing because of bad faith. The record

here contains almost no evidence that would support either finding.

       {¶ 20} Arnett admits that he cannot prove that the missing portion of the video was

materially exculpatory, because there was no evidence of what the video showed. As the

Eighth District has said, “[g]enerally, missing videotape evidence that purports to contain

images of an actual crime or event at issue speaks for itself. Simply put, such direct

evidence is by its very nature either inculpatory or exculpatory, or some combination of

the two, and there is likely no ‘test’ of that footage that would be necessary to yield a

result that would exonerate the accused.” State v. Durham, 8th Dist. Cuyahoga No.

92681, 2010-Ohio-1416, ¶ 16. Here, no one disputes that the jail video cameras should

have captured what happened, which means that the missing video was either

inculpatory—showed that Arnett assaulted Officer Kerrigan and spit at the officers—or

exculpatory—showed that Arnett was assaulted by the officers and that he did not spit at

them. (Alternatively, the video might show a combination of the two.) There was no

evidence that anyone ever saw the missing video who could say which version of events

it would have supported. While the video might have supported Arnett’s version of events,

it cannot be concluded that it would have shown a clear set of facts that supported either

a dismissal or a limitation on the testimony about the events. Compare id. at ¶ 21

(concluding the same on very similar facts).

       {¶ 21} Assuming that the missing video was potentially useful, there was no

evidence that it was destroyed, or at least was unavailable, because of bad faith. There

was no evidence that the officers, or anyone else, acted to destroy or hide the missing

video. Indeed, we can find no explanation in the record, or even a hint, as to what
                                                                                         -10-


happened to it. Arnett says that it was not reasonable to believe that the aftermath of the

incident was preserved but not the incident itself. He points out that the witnesses all

agreed that the cameras should have captured the incident. From these premises, Arnett

leaps to the conclusion that the missing video must have supported his version of the

events and, for that reason, was erased. Based on this record, we simply do not know

why the unpreserved portion of the video was unavailable, and an innocent act is just as

likely as a nefarious one. We will not speculate as to which type of act was to blame.

Consequently, we cannot conclude that the failure to preserve the video was the result of

bad faith.

       {¶ 22} Arnett asserts that he cannot satisfy his burden because trial counsel

rendered ineffective assistance by failing to file a motion that would have forced the State

to explain what happened at an evidentiary hearing. Based on the trial transcript, it is

apparent that counsel knew that a portion of the video was not available. But there is

nothing in the record to suggest that it was unavailable because of bad faith. As such,

there is nothing in the record to indicate that the result would have been any different if

such a motion had been filed.

       {¶ 23} Another reasonable possibility, of course, is that trial counsel did not want

the video of the assault produced. It is conceivable that counsel believed the missing

video would not help the defense of his client and might result in little chance of

exoneration. In that case, not pursuing the video would have been a defensible strategic

decision. At trial, counsel did forcefully argue that the State did not meet its burden of

proof because the State did not produce the relevant video, and that therefore the jury

should return a not guilty verdict. That could have been the best defense.
                                                                                         -11-


       {¶ 24} Either way, we cannot say that counsel’s conduct in this matter was

objectively unreasonable and, even if it were, there is no evidence of a reasonable

possibility that but for counsel’s failure to pursue the unpreserved video, Arnett would not

have been convicted.

       {¶ 25} Finally, as we indicated, resolving this matter in Arnett’s favor would be

purely speculative so it is not appropriate to consider his claim on direct appeal. The Ohio

Supreme Court reached a similar conclusion about a similar ineffective assistance claim

in State v. Madrigal, 87 Ohio St.3d 378, 721 N.E.2d 52 (2000). In that case, the defendant-

appellant maintained that he was not the person who committed the crime. Seeking to

bolster that defense, defense counsel questioned witnesses about the fact that the

defendant had facial hair when the crime was committed, but that no witness described

the suspect as having facial hair. On appeal, the defendant argued that counsel was

ineffective for not getting an expert to testify about the problems inherent in eyewitness

identification, because if such an expert had testified, there was a reasonable probability

that the outcome of the trial would have been different. In addition to concluding that

counsel was not ineffective, the Court said that it was not appropriate to consider the

claim on direct appeal:

       [R]esolving this issue in [Defendant]’s favor would be purely speculative.

       Nothing in the record indicates what kind of testimony an eyewitness

       identification expert could have provided. Establishing that would require

       proof outside the record, such as affidavits demonstrating the probable

       testimony. Such a claim is not appropriately considered on a direct appeal.

       See State v. Keith (1997), 79 Ohio St.3d 514, 536, 684 N.E.2d 47, 67; State
                                                                                         -12-

       v. Scott (1989), 63 Ohio App.3d 304, 308, 578 N.E.2d 841, 844 (claim of

       failure to present mitigating evidence is properly considered in a post-

       conviction proceeding because evidence in support of claim could not be

       presented on direct appeal).

Madrigal at 390.

       {¶ 26} Here, resolving the due-process issue in Arnett’s favor would be purely

speculative. Nothing in the record suggests what kind of testimony could have been

provided about what happened to the missing portion of the video. This would require us

to speculate about what evidence might have been presented at a hearing and then to

speculate about what the trial court might have found. To establish material exculpability

or bad faith at this point, Arnett must present proof outside the record, such as affidavits

describing probable testimony. Such evidence may not be considered on direct appeal.

                                      III. Conclusion

       {¶ 27} The sole assignment of error is overruled. The trial court’s judgment is

affirmed.

                                      .............



WELBAUM, P. J., concurs.

DONOVAN, J., concurs in judgment only.


Copies sent to:

Ryan Spitzer
Renee D. Busse
Hon. Christopher Gee
