[Cite as State v. Cotten, 2015-Ohio-5405.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2015 CA 00094
THOMAS W. COTTEN

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2014 CR 01330


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        December 21, 2015



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                 JEFFREY JAKMIDES
PROSECUTING ATTORNEY                            325 East Main Street
RENEE M. WATSON                                 Alliance, Ohio 44601
ASSISTANT PROSECUTOR
110 Central Plaza South, Suite 510
Canton,Ohio 44702-1413
Stark County, Case No. 2015 CA 00094                                                       2

Wise, J.

         {¶1}    Appellant Thomas W. Cotten appeals following his felony conviction, in the

Court of Common Pleas, Stark County, for the offenses of manufacturing explosives and

inducing panic. Appellee is the State of Ohio. The relevant facts leading to this appeal are

as follows.

         {¶2}    On February 15, 2014, an explosion and fire leveled a detached garage

located on appellant’s residential property in Hartville, Ohio. Appellant was in said

structure at the time and was seriously injured as a result. The Hartville Fire Department,

Hartville Police Department, and the Stark County Sheriff’s Office responded to the

scene, as well as federal investigators from the Bureau of Alcohol Tobacco and Firearms

(“ATF”). In addition, as firefighters were putting out “hot spots” to prevent further

explosions, Brian Peterman, a fire investigator for the State of Ohio Division of State Fire

Marshall's Office, arrived at the location. Peterman was briefed as to what had occurred

to that point.

         {¶3}    As they worked in the debris, the aforesaid responders and investigators

noticed chemicals, tubing and other items used to manufacture explosive devices. The

Summit County Bomb Squad subsequently took possession of some of the discovered

items.

         {¶4}    In addition, the deputies obtained information that a natural gas heater had

been part of the utilities in the destroyed garage. Sergeant Ryan Carver accordingly

examined the gas line at the scene and took photographs of it, as well as the damaged

heater which was located in the debris. However, the heater and its components were not

seized by law enforcement personnel.
Stark County, Case No. 2015 CA 00094                                                           3


       {¶5}   After completing their investigation, the agencies cleared the scene.

Investigator Peterman completed his work at the scene on February 17, 2014.

       {¶6}   However, on February 18, 2014, Brian Churchwell of Churchwell Fire

Consultants, Inc., who had been tasked by the Erie Insurance Company to investigate

the explosion in relation to potential insurance claims, entered onto appellant’s property.

On that date, appellant was still in an induced coma at the hospital. According to the

adjuster for Erie, Rudy Guy, the entry was made with the consent of appellant’s wife,

Kimberly. Churchwell was accompanied by Investigator Peterman. Churchwell

subsequently prepared a report of his findings, and Peterman drafted a supplemental

report on the incident.

       {¶7}   Churchwell’s report notes inter alia the presence of "a gas-fire Rezner type

heater" at the site of the explosion. The report also includes several photos of Churchwell

and/or his associates touching, moving, and otherwise handling the heater and the

"attached gas piping" located at the scene. The report does not, however, make any

specific mention of an actual removal of the heater or any gas piping from the scene by

Churchwell. However, Investigator Peterman did observe Churchwell collect the remains

of the natural gas heater that had been located in the garage. See Tr. at 28-31.

       {¶8}   On August 25, 2014, appellant was indicted on one count of manufacturing

or processing explosives (R.C. 2923.17(B)), a felony of the second degree, and one count

of inducing panic (R.C. 2917.31(A)(3)(C)(3)), a felony of the fourth degree.1



1 The first statute states that “[n]o person shall manufacture or process an explosive at
any location in this state unless the person first has been issued a license, certificate of
registration, or permit to do so from a fire official of a political subdivision of this state or
from the office of the fire marshal.” The second statute states that “[n]o person shall cause
the evacuation of any public place, or otherwise cause serious public inconvenience or
Stark County, Case No. 2015 CA 00094                                                        4


       {¶9}   On January 12, 2015, appellant filed a “motion to suppress and dismiss,” to

which the State of Ohio responded on February 17, 2015. The key issue was the

preservation of the garage heater unit and riser pipe. Following a hearing on February 20

and 24, 2015, appellant’s motion to suppress and/or dismiss was denied.

       {¶10} Appellant entered pleas of "no contest" on both of the above charges on

April 22, 2015. The trial court thereupon sentenced appellant inter alia to five years of

community control.

       {¶11} On May 12, 2015, appellant filed a notice of appeal. He herein raises the

following sole Assignment of Error:

       {¶12} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

SUPPRESS, AS A THIRD-PARTY INVESTIGATOR ENTERED THE SCENE OF THE

ALLEGED CRIME ACCOMPANIED BY A SELF-DESCRIBED ‘LAW ENFORCEMENT

OFFICER’ WHO WAS STILL INVESTIGATING THE MATTER AND TAMPERED WITH

AND REMOVED POTENTIALLY MATERIALLY EXCULPATORY EVIDENCE, THUS

VIOLATING THE APPELLANT'S DUE-PROCESS RIGHTS UNDER THE FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION.”

                                                 I.

       {¶13} In his sole Assignment of Error, appellant contends the trial court erred in

denying his motion to suppress.

       {¶14} As an initial matter, we note appellant’s above assigned error language at

first blush suggests that a trial court errs to the prejudice of a defendant in denying his or



alarm, by *** [c]ommitting any offense, with reckless disregard of the likelihood that its
commission will cause serious public inconvenience or alarm.” Inducing panic is a fourth-
degree felony if physical harm results.
Stark County, Case No. 2015 CA 00094                                                       5


her motion to suppress alleged materially exculpatory evidence, in this instance a garage

heater and related components. We find such an argument to be non-cognizable, as it

would be self-contradictory for a defendant to urge that evidence allegedly in his or her

favor should not have been allowed. Indeed, “[t]he very purpose of a motion to suppress

is to escape the inculpatory thrust of evidence in hand ***.” See State v. Dimmings, 8th

Dist. Cuyahoga No. 80149, 2002–Ohio–803, quoting Illinois v. McCray, 386 U.S. 300,

307, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), emphasis added. The trial court file reveals

appellant’s pertinent motion was captioned as a “motion to suppress and dismiss,” but it

focused exclusively on the argument that the State violated his due process rights by

failing to preserve exculpatory or potentially exculpatory evidence. In the interest of

justice, we will herein analyze the issues in this matter along similar lines, addressing

appellant’s essential contention that the State's alleged destruction of or failure to

preserve the garage’s heater and riser pipe, which he claims are materially exculpatory,

violated his due process rights.

       {¶15} In order to establish a violation under Brady v. Maryland (1963), 373 U.S.

83, 83 S.Ct. 1194, 10 L.Ed.2d 215, a defendant must prove that the prosecution failed to

disclose evidence upon request, the evidence was favorable to the defense, and the

evidence was material. State v. Garn, 5th Dist. Richland No. 02CA45, 2003-Ohio-820, ¶

23, citing Moore v. Illinois (1972), 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706. It is well-

established that the defendant carries the burden to prove a Brady violation rising to the

level of a denial of due process. See State v. Kulchar, 4th Dist. Athens No. 10CA6, 2015-

Ohio-3703, ¶ 42 (citations omitted). We generally review a Brady materiality question on

appeal as a matter of law. See State v. Fox, 985 N.E.2d 532, 2012-Ohio-4805, ¶ 25 (4th
Stark County, Case No. 2015 CA 00094                                                       6

Dist.), citing State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 12-

13. See, also, United States v. Bullock, 6th Cir. Nos 02–5854, 02–6229, 02–6232, 130

Fed.Appx. 706, 722 (2005).

       {¶16} It is initially noteworthy in the case sub judice that appellant was not charged

per se with causing an explosion; nonetheless, because the second count, inducing

panic, was effectively tied to the occurrence of the explosion, it is incumbent that we

consider the import of the State’s handling of the heater and related components.

       {¶17} In regard to appellant’s claim of destruction of evidence, we first find he

provides scant refutation of the trial court’s conclusion that the private consultant for the

insurance company, Churchwell, had collected the heater and riser from the scene,

wrapped it in plastic, and placed it in his company’s storage room. See Judgment Entry,

March 3, 2015, at 6-7. Thus, as the trial court recognized, “[t]he heater and riser have

been available for the defendant, his counsel, or anyone else to view upon request.” Id.

at 7. Appellant nonetheless argues that Churchwell, with the involvement of Investigator

Peterman, tampered with the heater and related components such that they “effectively

destroyed any opportunity for [appellant] to secure evidence that the explosion at issue

was in fact caused by a natural gas leak.” Appellant’s Brief at 6. However, other than

appellant’s own recollection in deposition that he smelled natural gas in the garage just

before the explosion, appellant provides nothing definitive to indicate that the heater was

causally connected to the explosion in the garage. We note Churchwell’s report instead

concluded that there was no evidence that the heater or the riser pipe was involved in the

explosion or resulting fire. See Appendix B at 16, 20. Appellant further points to nothing
Stark County, Case No. 2015 CA 00094                                                        7


in the record to show that the heater and riser were damaged or contaminated for

evidentiary purposes by being left at the scene for four days.

       {¶18} Moreover, in Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 333,

102 L.Ed.2d 281, the United States Supreme Court stated: “The Due Process Clause of

the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the

State irrelevant when the State fails to disclose to the defendant material exculpatory

evidence. But we think the Due Process Clause requires a different result when we deal

with the failure of the State to preserve evidentiary material of which no more can be said

than that it could have been subjected to tests, the results of which might have exonerated

the defendant. * * * We therefore hold that 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.”

       {¶19} Id. at 57-58, emphasis added.

       {¶20} 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.” Hoskins v. Aetna Life

Ins. Co. (1983), 6 Ohio St.3d 272, 276, 452 N.E.2d 1315 (citation omitted).

       {¶21} Accordingly, even assuming arguendo that the overall handling of the

heater by Churchwell, acting in the presence of a state investigator on the property,

constituted a failure of the State to properly preserve evidence which is still extant and

might have been subject to further expert review, we find no demonstration of bad faith

on the part of the State in this instance.
Stark County, Case No. 2015 CA 00094                                                  8


      {¶22} Therefore, we hold the trial court did not err in denying appellant’s motion

to suppress and/or dismiss.

      {¶23} Appellant's sole Assignment of Error is overruled.

      {¶24} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.



By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.




JWW/d 1204
