[Cite as State v. Buis, 2018-Ohio-1727.]




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

 STATE OF OHIO                                   :
                                                 :
          Plaintiff-Appellant                    :   Appellate Case No. 27778
                                                 :
 v.                                              :   Trial Court Case No. 17-CR-812
                                                 :
 WENDELL BUIS                                    :   (Criminal Appeal from
                                                 :    Common Pleas Court)
          Defendant-Appellee                     :
                                                 :

                                            ...........

                                           OPINION

                               Rendered on the 4th day of May, 2018.

                                            ...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellant

SUSAN F. SOUTHER, Atty. Reg. No. 0058529, 117 S. Main Street, Suite 400, Dayton,
Ohio 45422
      Attorney for Defendant-Appellee

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


HALL, J.

       {¶ 1} The State of Ohio appeals from the trial court’s dismissal of an indictment

against defendant-appellee Wendell Buis based on pre-indictment delay.

       {¶ 2} In its sole assignment of error, the State challenges the trial court’s ruling as

an abuse of discretion.

       {¶ 3} The record reflects that a grand jury indicted Buis on April 18, 2017 on one

count of cocaine possession, a fifth-degree felony. The indictment alleged that the offense

had occurred on or about February 7, 2015. Buis moved to dismiss the indictment. He

asserted that an unjustifiable and prejudicial delay of more than two years between the

alleged offense and the indictment violated his due-process rights. (Doc. #20). Buis noted

that the indictment stemmed from a traffic stop for speeding and that his address and

telephone number had not changed since the date of the offense. He asserted that a

police cruiser-cam recording of the traffic stop no longer existed, that a dispatch recording

about sending a K-9 unit to the scene no longer existed, that the dog involved had retired,

and that the alleged drugs at issue (which had been tested by the State and found to be

cocaine) had been destroyed. (Id. at 2-3). Buis also argued that the Ohio State Highway

Patrol trooper involved in the traffic stop had apparently moved to a local police

department and it would not have been difficult for the State to have located him more

promptly. (Id. at 4-5). Buis insisted that there was no valid reason for the delay, which had

resulted in actual prejudice to him. (Id. at 3-6).

       {¶ 4} The State opposed dismissal. It asserted that the trooper who made the

traffic stop had left the Ohio State Highway Patrol shortly after the incident. The State

acknowledged that a crusier-cam recording of the stop had not been saved and that the
                                                                                         -3-


alleged cocaine had been destroyed. The State asserted that on March 9, 2017 Trooper

Kyle Pohlabel brought the case to the prosecutor’s office for review. The State attributed

the more than two year delay to “a change in officers.” (Doc. # 22 at 2). Despite the delay,

the State insisted that Buis had not shown any actual prejudice. Absent a showing of

prejudice, the State argued that it had no burden to provide a justifiable reason for the

delay. (Id. at 3). With regard to prejudice, the State reasoned:

              In the present case not all of the evidence has been destroyed. The

        testimony of the Officers as well as the laboratory technician is still in

        existence. The testimony would still be subject to cross examination. The

        Defendant’s biggest grievance with the delay is the lack of cruiser cam. A

        lack of cruiser cam is not an uncommon occurrence. A lack of cruiser cam

        footage does not make a case unwinnable for the Defense. It is not an

        essential element. Based upon this, the alleged prejudice claimed by the

        Defendant is minimal at best.

(Id. at 4).

        {¶ 5} Neither party requested an evidentiary hearing on Buis’ motion, which the

trial court sustained in a September 28, 2017 decision and entry. (Doc. # 29). The trial

court began its review by citing the undisputed facts that the alleged cocaine had been

seized during a traffic stop, a cruiser-cam video had been destroyed, and the alleged

drugs had been analyzed and destroyed after the preparation of a report. (Id. at 1).

Applying State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, the trial

court then concluded that Buis had established actual prejudice due to the missing

evidence. The trial court opined that Buis was not required to show that the missing
                                                                                           -4-

evidence necessarily would have exonerated him. (Id. at 3). Rather, the trial court found

it sufficient that the missing evidence would have enabled him to attack the credibility of

the State’s evidence or to minimize the impact of that evidence. (Id. at 3-7). The trial court

then reasoned:

              The charge against Buis is “knowingly” possessing cocaine in an

       amount less than 5 grams. To the extent the seized substance was small or

       otherwise not obvious, defendant would be able to reasonably argue lack

       of knowledge at trial. Without that evidence he is denied the opportunity to

       “minimize or eliminate” the impact of the state’s evidence specifically with

       regard to his “knowingly” possessing cocaine.

                                           ***

              The Court finds that the combination of the missing cruiser cam

       video, dispatch, and the seized substance, would adversely affect the

       defense case at trial. It leaves the accused unable to contest the alleged

       controlled substance with respect to defendant’s alleged knowing

       possession. R.C. 2901.22(B) defines “knowingly” in the sense of awareness

       of circumstances that probably exist. The size of the container seized, its

       location, and particularity may be important to contest the alleged

       awareness. Therefore, the absence of the opportunity to inspect, examine,

       and independently test the alleged cocaine negatively impacts the

       defendant’s ability to defend himself at trial. Even without knowing what

       such testing would reveal as to the amount of cocaine, (no longer material

       after State v. Gonzales, [150] Ohio St.3d [276], [S]lip Opinion, 2017-Ohio-
                                                                                            -5-


       777), the presence of the alleged cocaine is important to the defense. “[I]t

       cannot be said that the missing evidence . . . would not have minimized or

       eliminated the impact of the state’s circumstantial evidence.” Luck, supra,

       15 Ohio St.3d 150, 157.

                Defendant is denied the opportunity to verify by independent analysis

       that the police seized cocaine. He is denied the opportunity to verify whether

       the police violated his Fourth Amendment rights in the traffic stop, search,

       and seizure. He is denied the opportunity to verify whether he was detained

       too long before there was a canine alert justifying a search. See Rodriguez

       v. United States, __ U.S. __, 135 S.Ct. 1609 (2016).

                The state’s response is that the absence of this evidence is harmless

       because defendant can cross-examine witnesses, and it is speculative

       because defendant cannot show that if he had the missing evidence it would

       support a dismissal or acquittal. It does not, and cannot, demonstrate that

       the availability of the missing evidence would have presented the

       opportunity to attack the credibility of the state’s evidence. The

       demonstrably missing evidence does not have to be “directly exculpatory.”

       Jones, supra, ¶ 27.

(Id. at 3-6).

       {¶ 6} On appeal, the State challenges the trial court’s finding of actual prejudice

attributable to pre-indictment delay. The State first insists that the trial court was required

to hold an evidentiary hearing on the prejudice issue. We disagree. The trial court

apparently found itself able to assess prejudice based on undisputed facts contained in
                                                                                         -6-


the parties’ written arguments. Whether the trial court’s decision was correct is a separate

question, which we will address below. But we are unconvinced that it had a per se duty

to hold an evidentiary hearing where the parties did not request one, electing instead to

proceed on their written arguments.

       {¶ 7} The case the State cites to support its argument, State v. Dixon, 8th Dist.

Cuyahoga No. 100332, 2014-Ohio-2185, is not to the contrary. In Dixon, the Eighth

District acknowledged that “a trial court may not always be required to hold an evidentiary

hearing upon a motion for preindictment delay[.]” Id. at ¶ 11. It found a hearing necessary

in that case, however, where the defendant asserted in his motion that prejudice existed

because his memory had faded, he was unable to locate witnesses, and the victim’s

credibility was suspect. Id. at ¶ 4. Under those circumstances, a hearing may have been

proper to test the defendant’s memory and to explore his claim about locating witnesses

and the victim’s credibility. Here Buis’ prejudice claim rested on the undisputed

destruction of evidence including a cruiser-cam recording of the traffic stop, a dispatch

recording about sending a K-9 unit to the scene, and the drugs at issue. Particularly in

the absence of a request by either party, we are unpersuaded that the trial court had an

obligation to hold an evidentiary hearing to assess the prejudice resulting from the loss of

this evidence.

       {¶ 8} The State next argues that Buis failed to establish actual prejudice based on

the missing cruiser-cam video, the missing dispatch recording about a K-9 unit, and the

destroyed drug evidence. The State contends it is speculation whether this evidence

would have aided Buis’ defense by undermining the case against him. The State asserts

that the cruiser-cam video and dispatch recording very well may not have revealed
                                                                                         -7-


anything useful to the defense and that the alleged drugs already had been tested and

confirmed to be cocaine. The State further notes that the officers involved in the traffic

stop are available to testify at trial about the size, location, and packaging of the drugs,

that a police report is available, that the lab analyst and a lab report are available, and

that a typed log of the dispatch recording is available.1 (Appellant’s brief at 6-10).

       {¶ 9} In response, Buis insists the missing evidence constitutes “critical

information” material to a determination of his guilt or innocence. His appellate argument

on the actual-prejudice issue addresses only the destruction of the drug evidence. Relying

on State v. Chambers, 8th Dist. Cuyahoga No. 90142, 2008-Ohio-3068, he asserts that

the destruction of this evidence precludes him from conducting independent testing as

authorized by statute and violates due process. (Appellee’s brief at 4-6).

       {¶ 10} It is well established that “[d]elay between a defendant’s involvement in

alleged criminal conduct and an indictment involving such conduct may deprive a

defendant of his constitutionally protected due process rights.” State v. Moore, 2017-

Ohio-1307, 88 N.E.3d 593 (2d Dist.), citing State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d

1097 (1984), paragraph two of the syllabus. When reviewing a decision on a motion to

dismiss an indictment for pre-indictment delay, we afford “great deference” to the trial

court’s factual findings while examining legal issues de novo. State v. Hawkins, 2d Dist.

Montgomery No. 27019, 2018-Ohio-867, ¶ 37-38 (citing cases). In Moore, we recited the


1 The State also asserts that no actual prejudice exists because “Buis was Mirandized
and made incriminating statements” after the traffic stop. (Appellant’s brief at 9).
Unfortunately, the State did not elaborate on the nature of those statements in its
memorandum in opposition to Buis’ motion to dismiss the indictment, and the record does
not reveal what incriminating statements were made. Although incriminating statements
in the nature of a confession might preclude any actual prejudice in the destruction of the
evidence at issue, we cannot make that determination on the record before us.
                                                                                        -8-


framework for analyzing a claim based on pre-indictment delay:

              In State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d

      688, the Ohio Supreme Court recently reiterated that “* * * preindictment

      delay violates due process only when it is unjustifiable and causes actual

      prejudice.” Id. at ¶ 12. The court also reaffirmed its firmly established

      “burden-shifting framework for analyzing a due-process claim based on

      preindictment delay [which states that] [o]nce a defendant presents

      evidence of actual prejudice, the burden shifts to the state to produce

      evidence of a justifiable reason for the delay.” Id. at ¶ 13, citing State v.

      Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998); State v. Adams,

      144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 99.

              A reviewing court must scrutinize a defendant’s claim of prejudice by

      “consider[ing] the evidence as it exists when the indictment is filed and the

      prejudice the defendant will suffer at trial due to the delay.” Jones, 148 Ohio

      St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 20. “* * * [S]peculative

      prejudice does not satisfy the defendant’s burden.” Id. “Actual prejudice

      exists when missing evidence or unavailable testimony, identified by the

      defendant and relevant to the defense, would minimize or eliminate the

      impact of the state’s evidence and bolster the defense.” Id. at ¶ 28.

Moore at ¶ 24-25.

      {¶ 11} With the foregoing standards in mind, we conclude that the trial court erred

in finding actual prejudice to Buis based on pre-indictment delay of a little more than two

years. We recognize that lost evidence can satisfy the actual-prejudice requirement.
                                                                                         -9-

Jones at ¶ 21. We also agree with the trial court that missing evidence need not be

“demonstrably exculpatory” to establish actual prejudice. Id. at ¶ 23. Rather, “the proven

unavailability of specific evidence or testimony that would attack the credibility or weight

of the state’s evidence against a defendant and thereby aid in establishing a defense may

satisfy the due-process requirement of actual prejudice.” Id. at ¶ 25. Here, however, Buis

made a purely speculative argument that the missing evidence would attack the credibility

or weight of the case against him. Although a defendant need not identify precisely what

missing evidence would have shown, Jones at ¶ 27-28, we see no basis on which to

conclude that the destroyed evidence would have yielded anything useful to his defense.

       {¶ 12} With regard to the destroyed drug evidence, which is the focus of Buis’

appellate argument, he concedes that it already was tested and found to be cocaine.

Nothing in the record indicates that the destruction of the evidence was anything other

than routine according to a drug destruction schedule. Although destruction of that

evidence precludes re-testing, a lab report of the test results exists and defense counsel

can cross examine the lab analyst at trial.2 When assessing actual prejudice resulting

from the missing evidence, we must consider this remaining evidence. Id. at ¶ 26. We

note too that destruction of the incriminating drug evidence may work to Buis’ advantage.

If anything, its absence seemingly would benefit the defense. Compare Adams at ¶ 103

(noting that the death of a potential witness was not prejudicial where the witness already


2  Near the end of its decision, the trial court opined that if it had not dismissed the
indictment against Buis “it would have precluded the prosecution’s use of the laboratory
report as prima facie evidence.” (Doc. # 29 at 9). This statement was dicta because the
trial court did dismiss the indictment, and the State has not raised the trial court’s
statement as an issue on appeal. Therefore, for present purposes, we express no opinion
as to whether the trial court on remand may preclude the State from using the lab report
as a sanction for destroying the drug evidence.
                                                                                          -10-

had implicated the defendant in a crime before he died); State v. Brown, 170 Ohio App.3d

235, 2007-Ohio-179, 866 N.E.2d 584, ¶ 21 (2d Dist.) (“Ironically, the most significant

exculpatory feature of the destroyed evidence is the very fact of its destruction. The state’s

error in destroying the evidence, which denies the jury an opportunity to see what it

actually looks like, preponderates in the defendant’s favor.”); see also State v. Barron, 2d

Dist. Greene No. 10-CA-28, 2011-Ohio-2425, ¶ 21 (“The sample already had tested

positive for cocaine, and Barron cannot establish that he was actually prejudiced by his

inability to conduct a second examination.”).

       {¶ 13} Buis’ citation to the Eighth District’s opinion in Chambers, supra, fails to

persuade us that destruction of the drug evidence resulted in actual prejudice. In

Chambers, the trial court refused to allow the defendant to conduct an independent drug

analysis of an existing sample. On appeal, the defendant argued that an independent

analysis was authorized by R.C. 2925.51(E) and that the trial court’s refusal to allow

independent analysis of the drugs violated due process. For its part, the prosecution

simply conceded error. Chambers at ¶ 14-15.

       {¶ 14} Analogizing to Chambers, Buis argues that destruction of the drug evidence

in this case violated his right under R.C. 2925.51(E) to have the substance independently

tested, thereby violating due process and establishing actual prejudice. We disagree. In

Barron, supra, we rejected an argument that destruction of a urine sample violated due

process. Even if destruction of the sample violated R.C. 2925.51(E), we found no due-

process violation where the sample already had tested positive for cocaine and its

destruction was not in bad faith. The same reasoning applies here.

       {¶ 15} Finally, we are unpersuaded that Buis established actual prejudice based
                                                                                               -11-


on destruction of the cruiser-cam video or the K-9 dispatch recording. It appears that the

officers involved in the traffic stop are available to testify at trial, and a police report of the

incident exists. Therefore, to the extent that the size, location, and packaging of the drugs

may be relevant to whether Buis knowingly possessed cocaine, those issues can be

addressed on cross examination (and, of course, Buis is free to testify about them himself

if he chooses). The availability of the officers militates against a finding of actual prejudice

resulting from destruction of the cruiser-cam video, which was of speculative evidentiary

value anyway.

       {¶ 16} We reach the same conclusion with regard to the K-9 dispatch recording.

The trial court reasoned that the missing recording prevented Buis from challenging

whether he was detained too long before a drug dog alerted. Of course, whether Buis

actually was detained too long is purely speculative. Although the recording conceivably

might support such an argument, “speculative prejudice does not satisfy the defendant’s

burden.” Jones at ¶ 20. We note too that a typed log of the dispatch call remains available.

Buis argued below that the typed log would be hearsay (although it seemingly would

qualify as a business record). In any event, the State insists on appeal that Buis may use

the typed log at trial in lieu of the actual recording. (Appellant’s brief at 9). This assertion

reasonably may be construed as a waiver of any possible hearsay objection.

       {¶ 17} For the reasons set forth above, we conclude that Buis failed to establish

actual prejudice stemming from the pre-indictment delay in this case. That being so, we

have no need to consider the State’s argument about whether a justifiable reason for the

delay existed. Absent a showing of actual prejudice, the trial court erred in dismissing the

indictment regardless of the reason for the delay. Jones at ¶ 16. Accordingly, the State’s
                                                                                       -12-


assignment of error is sustained.

      {¶ 18} The judgment of the Montgomery County Common Pleas Court is reversed,

and the cause is remanded for further proceedings consistent with this opinion.

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



WELBAUM, P. J., concurs.

FROELICH, J., concurring:

      {¶ 19} The difficulty faced by a defendant to prove the relevance, let alone

materiality, of destroyed evidence was discussed in State v. South, 162 Ohio App.3d 123,

2005-Ohio-2152, 832 N.E.2d 1222 (9th Dist.); the Ninth District, with one judge concurring

in judgment only and one dissenting, cited both Alice in Wonderland and Catch-22 and

commented, “The tautology is too obvious.” South at ¶ 13.

      The defendant has not justified his right to have the evidence presented for

      testing, which might help prove him not guilty, because he has not shown

      that the testing would produce evidence which would prove him not guilty.

      That is to say, if the defendant cannot prove the tests would have come

      back negative, he could not be prejudiced by not being able to test the

      substance which potentially would have come back negative. This

      argument proves nothing but that the defendant has conducted no testing

      on a sample he does not have. It is a logical truism that the absence of

      evidence is not the evidence of absence and it is impossible for anyone to

      prove a negative or, specifically in this case, for the defendant to prove a

      negative test without the sample to test.
                                                                                      -13-

State v. Barron, 2d Dist. Greene No. 10-CA-28, 2011-Ohio-2425, ¶ 28 (Froelich, J.,

concurring), citing South at ¶ 13.

       {¶ 20} Nonetheless, I concur that based on this record – or lack of record – Buis

did not sustain his burden of demonstrating actual prejudice. For limited examples, did

the content of the police report(s) – if any – raise questions about the stop and/or the

seizure; did Buis make incriminating statements; were there photographs of the scene

and/or suspected drugs; what did the dispatch log demonstrate? Further, if Buis meets

his burden of showing prejudice, can the State provide a justifiable reason for the over-

one-year delay in testing and the additional eight-month delay on indictment?

       {¶ 21} The destruction of certain evidence may or may not be a per se violation of

due process. While there is no requirement for a hearing, there is the need for a record

that supports the defendant’s burden and avoids speculation.




Copies mailed to:

Mathias H. Heck
Heather N. Jans
Susan F. Souther
Hon. Richard Skelton
