[Cite as State v. Beavers, 2012-Ohio-6222.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellant                            :            C.A. CASE NO.    24994

v.                                                     :            T.C. NO.   10CR2971

REUBIN J. BEAVERS                                      :            (Criminal appeal from
                                                                    Common Pleas Court)
        Defendant-Appellee                             :

                                                       :

                                              ..........

                                              OPINION

                         Rendered on the        31st       day of       December      , 2012.

                                              ..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellant

LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 W. Second Street, Suite 400, Dayton,
Ohio 45402
      Attorney for Defendant-Appellee

                                              ..........

FROELICH, J.

        {¶ 1}      The State of Ohio appeals from a judgment of the Montgomery County
                                                                                           2

Court of Common Pleas, which granted the motion of Reubin J. Beavers to dismiss his

indictment for possession of crack cocaine and possession of marijuana due to the

destruction of evidence.    For the following reasons, the trial court’s judgment will be

reversed, and the case will be remanded for reconsideration of defendant’s motion using the

legal standard established by the Ohio Supreme Court.

                                              I.

       {¶ 2}     At approximately 7:22 p.m. on September 15, 2010, Dayton Police Officer

Sean Humphrey stopped Beavers’ vehicle because Beavers’ windows were heavily tinted

and because the officer could smell a strong odor of freshly-cut marijuana emanating from

the vehicle as the officer drove behind it. Officer Kari Staples, who was patrolling the area

in a separate cruiser, saw Humphrey initiate the traffic stop and parked her cruiser behind

Humphrey’s cruiser. Beavers was asked to exit his vehicle, and Humphrey patted him

down for officer safety. During the patdown, Humphrey felt and retrieved small bags

containing marijuana and crack cocaine from Beavers’ front pants pocket.

       {¶ 3}     Both cruisers had audiovisual recording capabilities, and both cruisers

recorded some or all of the stop. The cruisers’ audiovisual recordings were saved and

maintained pursuant to Dayton Police Department General Order 3:02-4, XXI. Under that

policy, audio and video recordings are retained for 45 days, at which point they are

permanently erased and the blank disks are returned to the cruisers to be reused.

       {¶ 4}     On September 21, 2010, Beavers was charged in Dayton Municipal Court

with possession of marijuana in an amount less than 100 grams.                      Case No.

2010-CRM-9724. The case arose from the marijuana retrieved from Beavers during the
                                                                                                                              3

September 15 stop. On October 22 (a Friday), Beavers’ attorney in the municipal court case

filed a demand for discovery, which included a request to “Preserve and provide any

video/audio tapes; See State v. Benton (2000) 136 Ohio App.3d 801.” (Emphasis in

original.)       The audiovisual recordings from Humphrey’s and Staple’s cruisers were

destroyed three days later, in accordance with Dayton Police Department General Order

3:02-4, XXI.

         {¶ 5}        On February 2, 2011, Beavers was indicted with possession of crack

cocaine, a fourth degree felony, and possession of marijuana, a minor misdemeanor.1 These

charges also stemmed from the drugs that were seized during the September 15 stop. The

parties stipulated that the sole reason for the delay in the indictment was that the Miami

Valley Regional Crime Lab had a backlog of cases. The parties agree that the audiovisual

recordings were not preserved by the Dayton Police Department, and they were unavailable

at the time of Beavers’ indictment.

         {¶ 6}        In August 2011, Beavers filed a Motion to Compel and/or Dismiss. He

asserted that the video recordings from the police officers’ cruisers appeared to be

unavailable, despite the fact that the prosecutor was required to provide the “cruiser cam”

under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Beavers

emphasized that the recordings “would be especially probative in this case because the

reason given for the stop was that the officer, riding in his cruiser and following the

defendant while driving down Salem Avenue, could, even at normal traffic speed, smell the


             1
               According to the Dayton Municipal Court online docket, the municipal court case was continued several times.
   The case remained active until October 5, 2011, at which point the charges were withdrawn due to the indictment.
                                                                                            4

odor of marijuana.” (It is undisputed that the unburnt marijuana weighed 1.86 grams.)

Beavers asked the court to dismiss the action due to the State’s destruction of exculpatory

evidence. In another supporting memorandum, Beavers further noted that the recordings

“would have shown the actions taken by the officers at the scene and would have preserved

the audio recordings made by both officers as the events unfolded.” Beavers argued that the

State should bear the burden of establishing that no due process violation occurred, because

the destruction of the videotapes occurred after Beavers requested those items to be

preserved.

       {¶ 7}     The trial court granted Beavers’ motion to dismiss, finding that Beavers’

right to due process was violated by the State’s destruction of the audio/video recordings.

The trial court followed Columbus v. Forest, 36 Ohio App.3d 169, 522 N.E.2d 52 (10th

Dist.1987), which held that, when the State fails to respond in good faith to the defendant’s

request to preserve evidence, the State bears the burden to show that the destroyed evidence

was not exculpatory, but the defendant must show that the evidence could not be obtained by

other means. The trial court concluded that “[n]othing in the Stipulation of Facts or in the

State’s Response to Defendant’s Motion to Dismiss persuades this Court that the destroyed

audio/video recordings have no exculpatory value.” The court further found that Beavers

was prejudiced by the destruction of the recordings, because “there appears to be no

‘alternate channels’ available to Beavers to challenge the officers’ version of the stop.” The

court thus dismissed with prejudice the possession of crack cocaine and possession of

marijuana charges.

       {¶ 8}     The State appeals from the trial court’s judgment.
                                                                                             5

                                               II.

       {¶ 9}     The State’s sole assignment of error states:

       THE TRIAL COURT ERRED IN DISMISSING THE CASE FOR FAILURE

       TO PRESERVE EVIDENCE IN VIOLATION OF THE FOURTEENTH

       AMENDMENT TO THE UNITED STATES CONSTITUTION.

       {¶ 10}     The State claims that the trial court erred in granting Beavers’ motion to

dismiss the indictment.      It argues that the trial court should not have followed the

burden-shifting analysis in Forest, and that the trial court should have applied the law as set

forth in State v. Brown, 170 Ohio App.3d 235, 2007-Ohio-179, 866 N.E.2d 584 (2d Dist.).

Alternatively, the State asserts that, even if Forest did apply, Beavers did not demonstrate

that he was prejudiced by the destruction of the recordings.

       {¶ 11}     Within the last few years, the Ohio Supreme Court has addressed what

standard should apply when evaluating an alleged due process violation based on lost or

destroyed evidence. State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d

865; State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1. The Ohio

Supreme Court discussed United States Supreme Court case law on the issue, as follows:

                * * * Specific tests are applied to determine whether the state’s failure

       to preserve evidence rises to the level of a due process violation. The test

       depends on whether the lost or destroyed evidence involves “material

       exculpatory evidence” or “potentially useful evidence.”

                In California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d

       413 (1984), the Supreme Court held that the government violates a
                                                                                6

defendant’s due process rights when material exculpatory evidence is not

preserved.   Evidence is constitutionally material when it possesses “an

exculpatory value that was apparent before the evidence was destroyed, and

[is] of such a nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means.” Id. at 489, 104 S.Ct. 2528,

81 L.Ed.2d 413. The defendant bears the burden to show that the evidence

was materially exculpatory. See State v. Jackson, 57 Ohio St.3d 29, 33, 565

N.E.2d 549 (1991).

       In Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d

281 (1988), the Supreme Court reviewed a case in which the state had failed

to properly preserve semen samples and clothing obtained from a child who

was the victim of a sexual assault. A police criminologist performed testing

on the evidence but was unable to identify the assailant. Id. at 53–54, 109

S.Ct. 333, 102 L.Ed.2d 281.     Expert witnesses testified at trial that the

defendant might have been completely exonerated by timely performance of

tests on properly preserved semen samples. Id. at 54, 109 S.Ct. 333, 102

L.Ed.2d 281.   The defendant was convicted of child molestation, sexual

assault, and kidnapping. Id. at 52, 109 S.Ct. 333, 102 L.Ed.2d 281. The

Arizona Court of Appeals reversed the conviction on the ground that the state

had breached a constitutional duty to preserve the semen samples. Id.

       The Supreme Court reversed, stating:

       The Due Process Clause of the Fourteenth Amendment, as
                                                                                         7

                 interpreted in Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,

                 10 L.Ed.2d 215 (1963)] 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.

       Id. at 57, 109 S.Ct. 333, 102 L.Ed.2d 281. In that situation, the court held

       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 58, 109 S.Ct. 333, 102 L.Ed.2d 281. See also

       Illinois v. Fisher, 540 U.S. 544, 545, 124 S.Ct. 1200, 157 L.Ed.2d 1060

       (2004).

                 Youngblood made a clear distinction between materially exculpatory

       evidence and potentially useful evidence. “If the evidence in question is not

       materially exculpatory, but only potentially useful, the defendant must show

       bad faith on the part of the state in order to demonstrate a due process

       violation.”    State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878

       N.E.2d 1, ¶ 10.

(Footnote omitted.) Powell at ¶ 73-77.
[Cite as State v. Beavers, 2012-Ohio-6222.]
        {¶ 12}     As stated above, the defendant generally bears the burden of establishing

that lost or destroyed evidence was materially exculpatory. E.g., Powell at ¶ 74, quoting

Trombetta, 467 U.S. 479. However, several Ohio appellate districts have held that, when

the defendant specifically requests that certain evidence be preserved and that evidence is

subsequently destroyed or lost by the State, the burden shifts to the State to show that the

evidence was not materially exculpatory. E.g., Columbus v. Forest, 36 Ohio App.3d 169,

522 N.E.2d 52 (10th Dist.1987); State v. Benton, 136 Ohio App.3d 801, 737 N.E.2d 1046

(6th Dist.2000). But see State v. Canter, 5th Dist. Fairfield No. 01 CA 51, 2002-Ohio-3473

(rejecting Forest).

        {¶ 13}     In concluding that Beavers’ due process rights had been violated, the trial

court followed Forest, a case decided after Trombetta, but prior to Youngblood. In Forest,

the Tenth District framed the issue before it as “the constitutional duty of the state to respond

to a criminal defendant’s discovery requests and the remedies available upon breach of that

duty.” Forest, 36 Ohio App.3d at 171. The Forest court concluded that the Due Process

Clause places a duty upon the State to respond in good faith to a defense request to preserve

evidence. Id. at 172. The court noted that this duty was limited to a good faith response;

there was no attendant constitutional right to pretrial discovery or to have evidence

preserved, other than evidence which is apparently exculpatory and unique. Id. at 173.

        {¶ 14}     Under Forest, the remedy for the State’s breach of this duty was not

necessarily dismissal of the charges. Rather, where the State breaches its duty to respond in

good faith to a defense request to preserve evidence, “the appropriate remedy is to shift to

the state the burden of proof as to the exculpatory value of the evidence.” Id. If the State

could not demonstrate that the destroyed evidence was not exculpatory, the defendant was
                                                                                           9

still required to show that the evidence could not be obtained through “alternate channels.”

Id.

       {¶ 15}   The trial court followed Forest based on dicta in State v. Kuralt, 2d Dist.

Montgomery No. 20532, 2005-Ohio-4529, that placing “a burden on the State to show that

the destroyed evidence was not exculpatory * * * may be appropriate where the State

destroys evidence after Defendant has requested that it be preserved.” Kuralt at ¶ 26, citing

Forest. See also State v. Terry, 2d Dist. Greene No. 04 CA 63, 2004-Ohio-7257, ¶ 13.

However, we have never adopted the approach taken in Forest, and we have expressly

declined to address it when no request to preserve the evidence was made prior to the

evidence’s destruction.   See Kuralt at ¶ 26; State v. Fuller, 2d Dist. Montgomery No.

18994, *3 (Apr. 26, 2002).

       {¶ 16}   With the issue now squarely before us, we decline to follow Forest. We

reach this conclusion for several reasons. First, we note that Forest was decided one year

prior to Youngblood and 19 years before the Ohio Supreme Court addressed the standard for

evidence that was lost or destroyed by the State in Geeslin. Although Forest ostensibly

interprets Trombetta, the Tenth District in Forest framed the issue differently than the

United States Supreme Court and established a constitutional duty “to respond in good faith

to a defense request to preserve evidence.” Forest, 36 Ohio App.3d at 172-173, 522 N.E.2d

52. That duty was neither addressed nor recognized in Trombetta.

       {¶ 17}   More significantly, the standard established in Trombetta and Youngblood

marks a clear distinction between materially exculpatory evidence and potentially useful

evidence and the State’s duties with respect to each category of evidence. The United
                                                                                           10

States Supreme Court recognized that materially exculpatory evidence was limited to

evidence where the exculpatory nature was apparent and the evidence was unique.

Trombetta at 489, Powell at ¶ 74.

       {¶ 18}    Under Forest, in which the burden is shifted to the State to establish the

inculpatory nature of the destroyed or lost evidence, 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.         Indeed, as the United States Supreme Court

commented, “[w]henever potentially exculpatory evidence is permanently lost, courts face

the treacherous task of divining the import of materials whose contents are unknown and,

very often, disputed.” Trombetta, 483 U.S. at 486. The fact that a defendant has previously

requested that an item be preserved suggests that the evidence may be potentially useful, but

it does not reasonably suggest that the evidence is exculpatory when the exculpatory nature

was not apparent prior to its destruction.

       {¶ 19} We further note that in Illinois v. Fisher, 540 U.S. 544, 124 S.Ct. 1200, 157

L.Ed.2d 1060 (2004), which is cited in Powell, the United States Supreme Court reaffirmed

the burden faced by defendants, even when the defendants had requested that the evidence

be preserved prior to its destruction. In Fisher, the defendant was charged with possession

of cocaine, and eight days later he filed a motion for discovery seeking all physical evidence

that the State of Illinois intended to use at trial. The State responded that all evidence

would be available, upon request, at a reasonable date and time. The defendant absconded

prior to trial. Eleven years later, while Fisher was a fugitive, the substance seized from the

defendant was destroyed in accordance with established procedures.
                                                                                           11

       {¶ 20}    Fisher moved to dismiss the charge due to the destruction of evidence.

The motion was denied, and the defendant was convicted after a jury trial. The appellate

court reversed, however, on the ground that the destruction of the evidence, after the request

to preserve it, violated the defendant’s right to due process, even though the State had not

acted in bad faith. The Illinois Supreme Court denied leave to appeal.

       {¶ 21}    The United State Supreme Court reversed, reasoning that the substance had

been tested and found to be cocaine, and, thus, it was not materially exculpatory. Rather,

the substance was “potentially useful evidence,” the destruction of which violates due

process only upon a showing of bad faith by the State. Although discussing potentially

useful evidence rather than materially exculpatory evidence, the Supreme Court discounted

the significance of a pending discovery request or the importance of the destroyed evidence

to the defense. It stated:

                We have never held or suggested that the existence of a pending

       discovery request eliminates the necessity of showing bad faith on the part of

       police. Indeed, the result reached in this case demonstrates why such a per

       se rule would negate the very reason we adopted the bad-faith requirement in

       the first place: to “limi[t] the extent of the police’s obligation to preserve

       evidence to reasonable grounds and confin[e] it to that class of cases where

       the interests of justice most clearly require it.” 488 U.S., at 58, 109 S.Ct.

       333.

                We also disagree that Youngblood does not apply whenever the

       contested evidence provides a defendant’s “only hope for exoneration” and is
                                                                                           12

       “‘essential to and determinative of the outcome of the case.’”                In

       Youngblood, the Arizona Court of Appeals said that the destroyed evidence

       “could [have] eliminate[d] the defendant as the perpetrator.” Similarly here,

       an additional test might have provided the defendant with an opportunity to

       show that the police tests were mistaken. It is thus difficult to distinguish the

       two cases on this basis. But in any event, the applicability of the bad-faith

       requirement in Youngblood depended not on the centrality of the contested

       evidence to the prosecution’s case or the defendant’s defense, but on the

       distinction between “material exculpatory” evidence and “potentially useful”

       evidence.     As we have held, the substance destroyed here was, at best,

       “potentially useful” evidence, and therefore Youngblood’s bad-faith

       requirement applies.

(Citations omitted.) Fisher, 540 U.S. at 548-549.

       {¶ 22}      In addition, in Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d

1, the Ohio Supreme Court gave little weight to the timing of the destruction of the evidence.

 The Court noted that the Third District Court of Appeals had “devoted a portion of its

analysis to whether appellant had requested that the state provide him with the evidence in

question prior to its destruction.” Geeslin at ¶ 8. In that case, the evidence had been

destroyed within 24 hours of the defendant’s arrest. The Court summarily addressed the

Third District’s discussion, stating: “[U]nder those circumstances, appellant could not

reasonably be expected to have requested [the evidence] prior to its loss. We therefore do

not need to address whether appellant had a burden to first request from the state the
                                                                                            13

evidence in question. Our inquiry here is what standard should apply in evaluating an

alleged due process violation based on lost or destroyed evidence.” The supreme court then

articulated the standards established in Youngblood and Trombetta, which placed the burden

on the defendant to establish a due process violation.

        {¶ 23} Geeslin involved the destruction of a portion of a cruiser videotape that

showed the defendant’s driving prior to the stop. In determining that the missing portion of

the recording could not have been materially exculpatory, the Ohio Supreme Court noted

that “the missing evidence would not have been used to acquit appellant of the

impaired-driving charge itself. Rather, it would have been used only with regard to the

validity of the stop that led to appellant’s arrest.” Id. at ¶ 13.

        {¶ 24} In this case, Beavers’ counsel argued to the trial court that the video

recording would have shown the actions taken by the police officers at the scene and would

have provided “objective facts surrounding the decision to search first the defendant and

then the car.” Beavers emphasized that the stop was based in part on Officer Humphrey’s

claim that he could smell unburnt marijuana from his cruiser while driving behind Beavers’

vehicle. Only 1.86 grams of marijuana was found during the stop. Thus, Beavers argued

that the cruiser video recordings would undermine the legitimacy of the stop of the vehicle

and the search of his person. He did not claim that he did not, in fact, possess the baggies of

marijuana and cocaine. Under Geeslin, it would appear that the video recordings would not

be materially exculpatory, but only potentially useful. However, following Forest, the trial

court never engaged in this analysis.

        {¶ 25}    Youngblood has been subject to criticism. See, e.g., Norman C. Bay, Old
                                                                                           14

Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad

Faith, 86 Wash. U.L. Rev. 241 (2008). In our view, that criticism is well-deserved. See,

e.g., State v. Barron, 2d Dist. Greene No. 10-CA-28, 2011-Ohio-2425, ¶ 29-30 (Froelich, J.,

concurring).

       {¶ 26}    Nevertheless, we are bound to follow to the dictates of the Ohio Supreme

Court, which has chosen to follow Trombetta, Youngblood and Fisher.         Accordingly, we

agree with the State that the trial court erred when it applied the analysis in Forest in this

case. In light of this disposition, the State’s alternative argument that Beavers was not

prejudiced by the destruction of the recordings is moot and we need not address it.

       {¶ 27}    The first assignment of error is sustained.

                                              III.

       {¶ 28}    The trial court’s judgment will be reversed, and the matter will be

remanded to the trial court for reconsideration of Beavers’ motion to dismiss the indictment

using the standard established by the Ohio Supreme Court.

                                         ..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

R. Lynn Nothstine
Lucas W. Wilder
Hon. Dennis J. Langer
