[Cite as State v. Brown, 2019-Ohio-1615.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



STATE OF OHIO,                              :   APPEAL NOS. C-180236
                                                             C-180237
         Plaintiff-Appellant,               :                C-180261
                                                             C-180262
   vs.                                      :   TRIAL NOS. C-17TRC-41638A
                                                           C-17TRC-41638B
JEREMY BROWN,                               :              C-18TRC-702A
                                                           C-18TRC-702B
         Defendant-Appellee.                :

                                            :       O P I N I O N.




Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 1, 2019



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Krista Gieske, for Defendant-Appellee.
                    OHIO FIRST DISTRICT COURT OF APPEALS


WINKLER, Judge.

       {¶1}   Plaintiff-appellant the state of Ohio appeals the judgments of the trial

court dismissing the charges against defendant-appellee Jeremy Brown.             We

determine that the trial court erred in holding that the police violated Brown’s due-

process rights by failing to turn over video evidence from Brown’s traffic stop;

therefore, we reverse.

                   Factual Background and Procedural Posture

       {¶2}   On October 23, 2017, Mariemont police initiated a traffic stop of a

vehicle driven by Brown. As a result of that stop, the state charged Brown with

operating a vehicle while under the influence of drugs or alcohol (“OVI”) under R.C.

4511.19(A)(1)(a), OVI with a prior conviction and refusal under R.C. 4511.19(A)(2),

and two counts of failure to yield under R.C. 4511.43. Brown filed a motion to

preserve all video and audio recordings from his stop. When the state did not turn

over video from the police cruiser’s dash camera, Brown filed a motion to dismiss the

charges against him.

       {¶3}   At the hearing on Brown’s motion to dismiss, Officer Tom Ostendarp

testified that he had administered field-sobriety tests to Brown, and that he had

turned on his cruiser’s dash camera before administering the tests.         When he

received Brown’s motion to preserve evidence, Officer Ostendarp looked for the

video from Brown’s stop in the department’s computer system, even though he does

not typically handle such requests. Officer Ostendarp could not locate the video, and

he admittedly forgot to place a request for the video to Officer Adam Geraci, the

person who typically handles the video data collection. By late 2017, someone placed

a request to Officer Geraci for the video of Brown’s stop.


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       {¶4}   Officer Adam Geraci testified that he had looked for the video from

Brown’s traffic stop. Although he found digital video files from the date of Brown’s

stop, he could not access the digital files to view them. Officer Geraci discovered that

the video-downloading system that the department used to retrieve the videos from

all of its patrol-car cameras had malfunctioned and had to be replaced.           After

discovering the system problem, Officer Geraci realized that the problem had begun

as early as August or September.

       {¶5}   The trial court determined that the Mariemont police officers did not

act in bad faith in failing to turn over the video of Brown’s stop, however, the trial

court determined that the recording was materially exculpatory, and that the failure

to preserve the video violated Brown’s due-process rights. The trial court granted

Brown’s motion to dismiss. The state appeals.

                                    Law and Analysis

       {¶6}   In its sole assignment of error, the state argues that the trial court

erred in granting Brown’s motion to dismiss. This court has jurisdiction to review a

trial court’s decision granting a motion to dismiss a criminal complaint under R.C.

2945.67.

       {¶7}   As an initial matter, we address Brown’s argument that the state failed

to prosecute the appeals related to the OVI charge under R.C. 4511.19(A)(1)(a) and

the failure-to-yield charges. Brown urges this court to dismiss the state’s appeals

related to those charges under State v. Benson, 152 Ohio App.3d 495, 2003-Ohio-

1944, 788 N.E.2d 693 (1st Dist.). In Benson, the defendant had been convicted of

OVI and disregarding a traffic-control device. On appeal, the defendant challenged

the trial court’s denial of his motion to dismiss based upon the state’s failure to

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                    OHIO FIRST DISTRICT COURT OF APPEALS


preserve materially exculpatory evidence, and the trial court’s decision to allow the

arresting officer to testify as to the defendant’s sobriety. The court determined that

the defendant’s assignments of error “in no way implicate[d]” the defendant’s

conviction for disregarding a traffic-control device, and therefore the court dismissed

the defendant’s appeal from that charge.

       {¶8}   The case at bar presents a different procedural posture than Benson.

In Benson, the defendant had been convicted of two charges, and the defendant’s

appeal addressed only the trial court’s decisions with respect to the OVI charge.

Here, the trial court dismissed all charges related to Brown’s traffic stop, even the

failure-to-yield charges, after finding that the state’s failure to produce the video of

the field-sobriety tests violated Brown’s due-process rights. Even though the state’s

assignment of error and arguments therein challenge only the trial court’s decision

on Brown’s motion to dismiss, the trial court dismissed all charges. Therefore, the

state has prosecuted its appeal as to all of Brown’s dismissed charges.

       {¶9}   This court reviews de novo a trial court’s decision on a motion to

dismiss on the basis that the state failed to preserve materially exculpatory evidence,

or destroyed potentially useful evidence in bad faith. State v. Battease, 1st Dist.

Hamilton Nos. C-050837 and C-050838, 2006-Ohio-6617, ¶ 14.

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

States Constitution protects a criminal defendant from being convicted when the

state either fails to preserve materially exculpatory evidence or destroys, in bad faith,

potentially useful evidence. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102

L.Ed.2d 281 (1988); State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971

N.E.2d 865.


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       {¶11} In Brown’s motion to dismiss, Brown argued that the video of his

traffic stop was materially exculpatory, and that the state failed to preserve the video

in bad faith.

       {¶12} 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.’ ” Powell at ¶ 74, quoting California v. Trombetta, 467

U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).            “The possibility that

[evidentiary material] could have exculpated [the defendant] if preserved or tested is

not enough to satisfy the standard of constitutional materiality.” Youngblood at 56.

The defendant bears the burden to show that the evidence was materially

exculpatory. Powell at ¶ 74. However, if the defendant requests preservation of the

evidence, and the state subsequently fails to preserve it, then the burden shifts to the

state. State v. Acosta, 1st Dist. Hamilton Nos. C-020767, C-020768, C-020769, C-

020770 and C-020771, 2003-Ohio-6503, ¶ 6.

       {¶13} The record shows that the video evidence of Brown’s stop was lost

before Brown’s request to preserve evidence. After Brown filed his motion, the police

could not locate the video of Brown’s stop because of a system-wide malfunction.

The police determined that the problem had begun months prior to Brown’s stop.

Because the evidence shows that the video had been lost prior to Brown’s motion to

preserve, the burden remains with Brown to show that the video was materially

exculpatory.

       {¶14} At the hearing on Brown’s motion to dismiss, the only testimony

offered was that of Officers Ostendarp and Geraci, and no evidence was offered as to


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                   OHIO FIRST DISTRICT COURT OF APPEALS


what occurred during Brown’s stop, except that Officer Ostendarp performed field-

sobriety tests. The officers’ testimony indicated that the video from Brown’s traffic

stop did not properly download due to a system malfunction, and that no one viewed

the video. On this record, Brown has not met his burden to show that the evidence

was materially exculpatory. See State v. Durham, 8th Dist. Cuyahoga No. 92691,

2010-Ohio-1416 (defendant did not meet his burden to show that the videotape of his

OVI stop was materially exculpatory where no one viewed the videotape before it was

erased).

       {¶15} If the missing evidence is not materially exculpatory, but “potentially

useful,” then a different rule applies. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577,

971 N.E.2d 865, at ¶ 77. 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. Youngblood, 488 U.S. at 58, 109 S.Ct. 333, 102 L.Ed.2d

281. “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.”

(Internal citations and quotations omitted.) Powell at ¶ 81.

       {¶16} Here, the trial court determined that the police did not act in bad faith

because the cruiser video did not download properly, and the police did not discover

this malfunction until after Brown filed his motion.      Brown argues that Officer

Ostendarp acted in bad faith by failing to submit a request for the video to Officer

Geraci, the officer in charge of data collection. Brown likens Officer Ostendarp’s

inaction to cases in which courts found bad faith when officers failed to follow


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                   OHIO FIRST DISTRICT COURT OF APPEALS


departmental policies to safeguard evidence. See State v. Combs, 5th Dist. Delaware

No. 03CA-C-12-073, 2004-Ohio-6574; In re J.B., 6th Dist. Williams No. WM-16-

002, 2017-Ohio-406. In this case, the videos from Officer Ostendarp’s cruiser should

have automatically downloaded and been stored within the department for six

months. Because the department’s system malfunctioned, the video from Brown’s

stop did not download properly, and nothing in the record suggests that the video

could have been saved had Officer Ostendarp submitted a request to Officer Geraci.

       {¶17} At the time of Brown’s stop, the station policy for checking whether the

video system worked properly was every three to six months. Officer Geraci checked

the system in early or mid-August, and it was working. Brown’s stop occurred in

October, and Officer Geraci checked the system in December, when he uncovered the

problem. Although the Mariemont police could have discovered the faulty video

downloads prior to late 2017, nothing in the record suggests that the police breached

a known duty, or acted with a dishonest purpose or ill will in failing to uncover the

problem. Therefore, the police did not act in bad faith by failing to preserve the

video from Brown’s traffic stop.

                                       Conclusion

       {¶18} Brown has not met his burden to show that the video of his OVI traffic

stop was materially exculpatory, and the police did not act in bad faith in failing to

preserve the video. Therefore, Brown’s due-process rights were not violated, and the

trial court erred in granting Brown’s motion to dismiss. We sustain the state’s

assignment of error. We reverse the judgments of the trial court and the cause is

remanded for further proceedings on Brown’s charges.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



                                                Judgments reversed and cause remanded.


MYERS, P.J., and CROUSE, J., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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