[Cite as State v. Stubbs, 2019-Ohio-4147.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  JEFFERSON COUNTY

                                             STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                                         QUINTAE STUBBS,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                             Case No. 18 JE 0010


                                    Criminal Appeal from the
                        Court of Common Pleas of Jefferson County, Ohio
                                     Case No. 17-CR-159

                                        BEFORE:
                 Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges.


                                                JUDGMENT:
                                                  Affirmed.



 Atty. Jane Hanlin, Jefferson County Justice Center, Prosecutor’s Office, 16001 State
 Route 7, Steubenville, Ohio 43952, for Plaintiff-Appellee, and

 Atty. Lydia Spragin, 100 North 4th Street, Suite 708, Steubenville, Ohio 43952, for
 Defendant-Appellant.
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                                            Dated:
                                        October 4, 2019

 DONOFRIO, J.

        {¶1}      Defendant-appellant, Quintae Stubbs, appeals from a Jefferson County
Common Pleas Court judgment convicting him of improper handling of a firearm in a
motor vehicle and having a weapon while under disability.
        {¶2}     On November 11, 2017, Ohio State Highway Patrol Trooper Trevor Koontz
was sitting in his stationary cruiser in Jefferson County. Appellant was one of three
passengers in a vehicle that drove past Trooper Koontz’s cruiser. Trooper Koontz pulled
the vehicle over for speeding. The trooper eventually arrested the driver for driving under
the influence.
        {¶3}      After the driver was arrested, the trooper found a handgun and a loaded
magazine under the seat where appellant had been sitting.
        {¶4}     On November 14, 2017, the trooper filed a complaint against appellant for
improper handling of a firearm in a motor vehicle and having a weapon while under
disability.    On November 21, 2017, a preliminary hearing was held in Steubenville
Municipal Court. The Steubenville Municipal Court set the matter for another preliminary
hearing in the Jefferson County Common Pleas Court.
        {¶5}     A Jefferson County Grand Jury subsequently indicted appellant on one
count of improper handling of a firearm in a motor vehicle, a fourth-degree felony in
violation of R.C. 2923.16(B), and one count of having weapons while under disability, a
third-degree felony in violation of R.C. 2923.13(A)(3).
        {¶6}     On January 26, 2018, appellant filed a general request for discovery. Three
days later, he filed another general discovery request. That same day, appellant also
filed a general request that the state preserve all physical evidence in its possession.
        {¶7}     On February 26, 2018, the trial court held a pre-trial hearing. At the hearing,
                                  ,




appellant raised two issues. First, he took issue with the fact that the first preliminary
hearing was held in the Steubenville Municipal Court rather than the Jefferson County
Common Pleas Court. Second, appellant requested a continuance due to how long it
would take to test any fingerprints on the firearm. The court told appellant he could file
motions regarding these issues.


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      {¶8}   On March 14, 2018, appellant filed three motions. First, appellant filed a
motion to compel discovery. Appellant specifically requested that plaintiff-appellee, the
State of Ohio, provide the chain of custody of all the evidence as well as any other
documents relevant to his defense. He also filed a motion to dismiss the case, arguing
that the Steubenville Municipal Court had lacked subject matter jurisdiction to hear the
case. And appellant filed a motion to test the gun for fingerprints and DNA at the state’s
expense.
      {¶9}    The trial court held a hearing on appellant’s motions on April 12, 2018. The
court sustained appellant’s motion to compel discovery, ordering the state to complete
discovery within 14 days. The court overruled appellant’s motion to dismiss the case. It
also overruled appellant’s motion for fingerprint and DNA testing of the gun. The court
reasoned that, at that point, the gun had already been handled and tested for operability
and, therefore, any DNA and fingerprint testing would be a waste of money.
      {¶10} On May 14, 2018, appellant filed a motion to exclude the gun arguing the
state had contaminated the evidence that appellant had specifically requested it preserve
for testing. The trial court treated appellant’s motion as a motion to suppress and held a
hearing on it. The court ultimately overruled the motion.
      {¶11} After the court overruled his motion, appellant changed his plea from not
guilty to no contest in accordance with a plea agreement with the state. In exchange for
his no contest plea, the state agreed to recommend a total sentence of 30 months. The
trial court conducted a plea hearing and accepted appellant’s no contest plea. The court
then found appellant guilty and imposed the recommended sentence of 30 months in
prison: 18 months for improper handling of a firearm and 30 months for having weapon
while under disability to be served concurrently.
       {¶12} Appellant filed a timely notice of appeal on June 19, 2018. He now raises
four assignments of error.
       {¶13} Appellant’s first two assignments of error raise the same argument.
Therefore, we will address them together.
       {¶14} Appellant’s first assignment of error states:

              THE COURT COMMITTED REVERSIBLE ERROR WHEN THE
       COURT FOUND THAT SPOLIATION DID NOT OCCUR WHEN THE GUN


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       WAS TESTED FOR OPERABILITY EVEN THOUGH THE DEFENSE
       REQUESTED IT BE PRESERVED FOR TESTING.

               THE     DESTRUCTION         OF    MATERIALLY         EXCULPATORY
       EVIDENCE, IN THIS CASE THE GUN, WHICH WAS TEST FIRED, BUT
       NOT TESTED FOR LATENT PRINTS OR DNA, RESULTS IN A DENIAL
       OF DUE PROCESS REGARDLESS OF THE EXISTENCE OF BAD FAITH.

       {¶15} Appellant’s second assignment of error states:

               THE [STATE] VIOLATED BRADY AND ITS PROGENY WHEN IT
       DID [NOT] PRESERVE THE DNA/FINGERPRINTS ON THE GUN FOR
       TESTING BY BCI AS REQUESTED BY THE DEFENSE.

       {¶16}   Appellant argues that because he was indigent and the gun was material
to his defense, the trial court should not have denied his request to have the gun tested
at the state’s expense. Further, appellant states that the court’s refusal to test the gun at
the state’s expense made it almost impossible for him to raise a defense so much that it
was necessary to accept a plea deal from the state.
       {¶17}   Appellant further argues that the state failed to preserve “materially
exculpatory” evidence by allowing the gun to be test fired for operability after he had
requested that the state preserve it.
       {¶18} The United States Supreme Court addressed the issue of whether a
criminal defendant is denied due process of law by the state's failure to preserve evidence
in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). The Court
stated:

       The Due Process Clause of the Fourteenth Amendment, as interpreted in
       [Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215],
       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



Case No. 18 JE 0010
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       then that it could have been subjected to tests, the results of which might
       have exonerated the defendant. * * * We think that requiring a defendant to
       show bad faith on the part of the police both limits the extent of the police's
       obligation to preserve evidence to reasonable bounds and confines it to that
       class of cases where the interests of justice most clearly require it, i.e.,
       those cases in which the police themselves by their conduct indicate that
       the evidence could form a basis for exonerating 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.

Id. at 57-58.
       {¶19} As appellant points out, the United States Supreme Court held in Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that the suppression of
materially exculpatory evidence violates a defendant's due process rights, regardless of
whether the state acted in good or bad faith. See State v. Geeslin, 116 Ohio St.3d 252,
2007-Ohio-5239, 878 N.E.2d 1, ¶ 7. But if the evidence in question is not materially
exculpatory, but instead is only potentially useful, the defendant must show bad faith on
the part of the state in order to demonstrate a due process violation. Geeslin, 116 Ohio
St.3d 252, at ¶ 10.
       {¶20} Thus, we must first determine if the gun in this case was “materially
exculpatory” or only “potentially useful.”
       {¶21} 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 reasonable means.”
State v. Benton, 136 Ohio App.3d 801, 805, 737 N.E.2d 1046 (6th Dist.2000), citing
California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).
       {¶22} On the other hand, evidence is potentially useful when “no more can be said
then that it could have been subjected to tests, the results of which might have exonerated
the defendant.” Youngblood, 488 U.S. at 57.
       {¶23} In this case, the gun was not materially exculpatory. The gun, on its face,
did not possess an apparent exculpatory value. Nothing about it clearly exonerated


Case No. 18 JE 0010
                                                                                        –6–


appellant. Instead, the gun was potentially useful. It is possible that had the gun been
subject to fingerprint or DNA testing, these tests could have revealed fingerprints or DNA
belonging to other occupants of the car instead of appellant. Appellant could have used
this evidence, if it existed, to bolster his defense that the gun did not belong to him. But
testing also could have revealed appellant’s fingerprints or DNA on the gun or the testing
could have been inconclusive. Thus, the gun in this case was potentially useful, not
materially exculpatory.
         {¶24} Because the gun was only potentially useful, appellant had to demonstrate
that the state acted in bad faith in failing to preserve it for testing.
         {¶25} Bad faith usually implies something more than bad judgment or negligence.
State v. Tate, 5th Dist. Fairfield No. 07CA55, 2008-Ohio-3759, ¶ 13. Bad faith involves
such things as “‘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.’” State v. Powell, 132 Ohio St.3d
233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 80-81, quoting Hoskins v. Aetna Life Ins. Co., 6
Ohio St.3d 272, 276, 452 N.E.2d 1315 (1983).
         {¶26}   In this case, appellant did not offer evidence that the state acted in bad
faith.
         {¶27} At a hearing on the matter, appellant did not offer any witnesses or
evidence of bad faith. The prosecutor read from the police report, in which the arresting
trooper stated that the passenger who was seated next to appellant in the backseat told
him that when the trooper activated his lights to stop the vehicle, appellant removed the
gun from his person and stuffed it under the seat. (4/12/17 Tr. 9). The officer also
reported that when he was about to stop the vehicle appellant turned around and looked
at him. (4/12/17 Tr. 9). The prosecutor also noted that the gun was handled by the officer
without gloves when he removed it from the vehicle and transported it to an evidence
locker. (4/12/17 Tr. 9). Defense counsel asserted that the other passenger only identified
appellant as the gun owner when the trooper threatened her with jail time. (4/12/17 Tr.
10).
         {¶28} The trial court found that once the gun had been handled, there was no
point conducting fingerprint or DNA testing. (4/12/17 Tr. 10).



Case No. 18 JE 0010
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       {¶29} Appellant’s argument to the court of bad faith was simply speculation. He
failed to present any evidence that the trooper acted in bad faith in handling the firearm.
Perhaps it was negligent for the trooper to handle the gun without gloves. But perhaps
he was faced with a situation of officer safety that required him to quickly remove the gun
from the reach of the occupants of the vehicle. Appellant could have called the trooper
to testify but did not. Thus, appellant did not demonstrate that the state acted in bad faith
when the trooper handled the gun without gloves.
       {¶30} Appellant also argues the state acted in bad faith when it had the gun test-
fired for operability thus “spoiling” the evidence. He points to the timeline of events in this
case for support.
       {¶31} On January 26, 2018, appellant filed a general request for discovery. Three
days later, he filed another general discovery request. That same day, appellant also
filed a request that the state preserve all physical evidence in its possession. None of
these motions specifically requested having the gun tested for fingerprints or DNA.
       {¶32} On February 14, 2018, the gun was test-fired by the state to test its
operability, which is one of the elements of the offense appellant was charged with.
(5/25/18 Tr. 7).
       {¶33} On February 26, 2018, the trial court held a pre-trial hearing where defense
                                 ,




counsel expressed a need for a continuance due to how long it would take to test any
fingerprints on the firearm. The court granted the continuance and told appellant he could
file motions regarding the gun issue.
       {¶34} On March 14, 2018, appellant filed a motion to test the gun for fingerprints
and DNA at the state’s expense.
       {¶35} Again, appellant has failed to demonstrate bad faith on the part of the state
in handling the gun. At the point in time when the state tested the gun for operability
appellant had not yet requested that fingerprint and DNA testing be performed on the gun.
Moreover, as stated above, the gun had already been handled by the trooper at the traffic
stop thus any fingerprints or DNA evidence was likely contaminated. Therefore, we
cannot conclude that the trial court erred in denying appellant’s request to have the gun
tested at the state’s expense.




Case No. 18 JE 0010
                                                                                           –8–


       {¶36} Accordingly, appellant’s first and second assignments of error are without
merit and are overruled.
       {¶37} Appellant’s third assignment of error states:

               THE COURT ABUSED ITS DISCRETION WHEN IT DENIED THE
       MOTION TO EXCLUDE THE GUN.

       {¶38} Appellant argues the trial court should have granted his motion to suppress
the gun because he never had the opportunity to test the gun for fingerprints and DNA.
       {¶39} Our standard of review with respect to a motion to suppress is first limited
to determining whether the trial court's findings are supported by competent, credible
evidence. State v. Winand, 116 Ohio App.3d 286, 288, 688 N.E.2d 9 (7th Dist.1996)
citing Tallmadge v. McCoy, 96 Ohio App.3d 604, 608, 645 N.E.2d 802 (9th Dist.1994).
Such a standard of review is appropriate as, “[i]n a hearing on a motion to suppress
evidence, the trial court assumes the role of trier of fact and is in the best position to
resolve questions of fact and evaluate the credibility of witnesses.” State v. Venham, 96
Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). An appellate court accepts the
trial court's factual findings and relies upon the trial court's ability to assess the witness's
credibility, but independently determines, without deference to the trial court, whether the
trial court applied the appropriate legal standard. State v. Rice, 129 Ohio App.3d 91, 94,
717 N.E.2d 351 (7th Dist.1998). A trial court's decision on a motion to suppress will not
be disturbed when it is supported by substantial credible evidence. Id.
       {¶40} In this case, the trial court did not make any findings of fact in its judgment
entry overruling appellant’s motion to exclude the gun.              Nonetheless, appellant’s
argument for suppressing the gun hinges on the arguments he put forth in his first two
assignments of error. Because we have already determined that (1) the gun was only
potentially useful, (2) the state did not act in bad faith in handling the gun, and (3) the trial
court properly denied appellant’s request for fingerprinting and DNA testing of the gun,
the trial court’s decision to deny the motion to suppress is supported by substantial,
credible evidence.
       {¶41} Accordingly, appellant’s third assignment of error is without merit and is
overruled.


Case No. 18 JE 0010
                                                                                        –9–


        {¶42} Appellant’s fourth assignment of error states:

                THE    PRELIMINARY        HEARING         WAS     HELD     IN    THE
        STEUBENVILLE MUNICIPAL COURT INSTEAD OF JEFFERSON
        COUNTY     COURT      #2,   WHICH      IS   THE    COURT     OF    PROPER
        JURISDICTION.     THERE IS NO DENYING THAT MR. STUBBS WAS
        LATER INDICTED BY THE JEFFERSON COUNTY GRAND JURY;
        HOWEVER,      THE     AB    INITIO   VIOLATION       OF    MR.    STUBBS[’]
        CONSTITUTIONAL RIGHT TO HAVE HIS PRELIMINARY HEARING AND
        ITS ATTENDANT RIGHT TO HAVE THE SITTING JUDGE OF THAT
        JURISDICTION TO HEAR AND DETERMINE WHETHER HE SHOULD BE
        BOUND OVER WAS VIOLATED.                A FACT NOT DENIED BY THE
        JEFFERSON COUNTY PROSECUTOR JANE HANLIN.

        {¶43}   Appellant argues that the Steubenville Municipal Court did not have
subject matter jurisdiction over his case. He points out that R.C. 1901.20(A)(1) provides
the municipal courts with jurisdiction to hear felony cases committed within their territory.
Appellant argues the felonies in this case did not occur within the municipal court’s
territory.
        {¶44} A Jefferson County Grand Jury properly indicted appellant on January 10,
2018. This court has observed:

        It has been repeatedly held in Ohio that, “[a]n accused in a felony case is
        not tried upon the affidavit filed against him but on the indictment by the
        grand jury.” State v. Thacker, 4th Dist. No. 04CA5, 2004-Ohio-3978, ¶ 12,
        citing Foston v. Maxwell (1964), 177 Ohio St. 74, 76, 202 N.E.2d 425, 29
        O.O.2d 194. Any alleged defects in the original charging complaint are
        consequently irrelevant to convictions based on the grand jury indictment.
        Thacker, supra, citing State v. Martin, 4th Dist. No. 01CA24, 2002-Ohio-
        6140, at ¶ 24; State v. Jenkins, 4th Dist. No. 02CA5, 2003-Ohio-1058, ¶ 24.

State v. Christian, 7th Dist. Mahoning No. 02 CA 170, 2005-Ohio-2381, ¶ 14.




Case No. 18 JE 0010
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       {¶45} Because appellant was properly indicted by a Jefferson County Grand Jury,
any defect in procedure that may have occurred by holding a preliminary hearing on the
complaint in the Steubenville Municipal Court is harmless error.
       {¶46} Accordingly, appellant’s fourth assignment of error is without merit and is
overruled.
       {¶47} For the reasons stated above, the trial court’s judgment is hereby affirmed.




Robb, J., concurs.

D’Apolito, J., concurs.




Case No. 18 JE 0010
[Cite as State v. Stubbs, 2019-Ohio-4147.]




         For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court that the judgment of
 the Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs to be waived.


         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                         NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
