[Cite as State v. Morgan, 2020-Ohio-292.]




                          IN THE COURT OF APPEALS OF OHIO

                                SIXTH APPELLATE DISTRICT

                                       WILLIAMS COUNTY




State of Ohio                                   Court of Appeals No. WM-18-007



        Appellee                                Trial Court No. 18CR00007



v.



John T. Morgan                                  DECISION AND JUDGMENT



        Appellant                               Decided: January 31, 2020



*****



        Katherine J. Zartman, Williams County Prosecuting Attorney, and

        Stacey S. Stiriz, Assistant Prosecuting Attorney, for appellee.
        {¶ 1} Defendant-appellant, John T. Morgan, appeals the July 30, 2018

judgment of the Williams County Court of Common Pleas which, following his no

contest pleas to three counts of aggravated robbery, sentenced appellant to a total of

12 years of imprisonment. For the reasons that follow, we affirm.

        {¶ 2} On January 23, 2018, a six-count indictment was filed charging

appellant with three counts of aggravated robbery, with specifications, one count of

theft of drugs, and two counts of having a weapon while under disability. The

charges stemmed from a series of three armed robberies in November 2015, in

Williams County, Ohio, where the suspect stole cash from two gas stations and

oxycodone from a pharmacy. The suspect in each robbery similarly had his face

covered by a mask and gloves on his hands.

        {¶ 3} Prior to appellant’s indictment, a series of robberies spanning 2015-2016

and involving Ohio, Michigan, and Indiana remained unsolved Law enforcement

from the affected jurisdictions had been conferring in an attempt to apprehend the

suspect or suspects. Following a tip and corroborating evidence, appellant was

singled out as the suspect in the Ohio robberies and several extra-jurisdictional

robberies.

        {¶ 4} On March 16, 2016, following the execution of several search warrants

at appellant’s home in Michigan, appellant was arrested in Williams County, Ohio.

After posting bond in Michigan, appellant and his girlfriend allegedly robbed a bank

in Michigan and fled the jurisdiction. They were apprehended in Hamilton County,

Ohio.
that various items of physical evidence, including a face mask, clothing, gloves, and

a toy gun, that were recovered by law enforcement during appellant’s arrest in

Hamilton County, Ohio, were destroyed following the conclusion of the criminal

proceedings in Michigan and prior to the filing of the indictment in the present case.

Appellant also filed a motion in limine requesting that the court prohibit the state

from introducing evidence of other robberies committed by appellant. Appellant

argued that the robberies were not similar enough to establish the probative value as

outweighing the danger of unfair prejudice.

      {¶ 6} A hearing on the motions was held on June 21, 2018. On June 29, 2018,

as to the other acts evidence the trial court noted that the 15 additional robberies took

place in the tri-state area between August 8, 2015 and March 12, 2016, and that the

multiple similarities between the robberies was sufficient to establish a “behavioral

fingerprint.” The court, however, limited the introduction of such evidence to the

nine robberies where the suspect covered the gun with a plastic bag as occurred in

the robberies at issue.

      {¶ 7} As to the state’s destruction of evidence, the court concluded that

appellant failed to demonstrate either that the evidence was “materially exculpatory”

or that the state acted in bad faith. The court then denied the motion to dismiss or to

exclude the photographic substitute evidence.

      {¶ 8} On July 23, 2018, the matter proceeded to a jury trial. After two days of

trial, appellant withdrew his not guilty pleas and entered pleas of no contest to three

counts of aggravated robbery. Following sentencing, appellant commenced this
               Assignment of Error II: If evidence in the custody of law

      enforcement is destroyed prior to charges being filed and the appellant

      being able to file a motion to preserve evidence, the appellant does not

      need to establish that the evidence was materially exculpatory for the

      case to be dismissed due to a violation of the appellant’s due process

      right.

               Assignment of Error III: Appellant’s due process rights require

      preservation of all evidence until charges are filed and the appellant has

      an opportunity to demand discovery/preservation.

               Assignment of Error IV: The trial court abused its discretion

      when it allowed testimony regarding bad acts evidence against the

      appellant.

Destruction of Evidence

      {¶ 9} Appellant’s first three assignments of error argue that his due process

rights were violated by the court’s failure to dismiss the charges due to the state’s

failure to preserve physical evidence. Alternatively, appellant argues that the state

should have been prohibited from using photographic evidence as a substitute for

the destroyed items. Appellant claims that because the evidence was destroyed prior

to the charges in the indictment, the burden should shift to the state to prove that the

evidence destroyed was not exculpatory and that a showing of bad faith is not

necessary. Conversely, the state asserts that the burden of demonstrating the

exculpatory nature of the evidence remains with appellant and that, at most, he can
479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) and Arizona v. Youngblood, 488 U.S.

51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). But where evidence is only “potentially

useful,” the failure to preserve the evidence does not violate a defendant’s due

process rights unless the defendant can show that the state acted in bad faith. Id. at

¶ 76-77, quoting State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d

1, ¶ 10. Potentially useful evidence is “ ‘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.’ ” Geeslin at ¶ 9, quoting Arizona at 58. See State v.

Johnson, 6th Dist. Lucas Nos.

L-07-1193, L-08-1230, 2009-Ohio-45, ¶ 17-18.

      {¶ 11} Applying the relevant case law to the facts of this case, we conclude

that the physical evidence at issue was not exculpatory1 but was potentially useful in

that the items would have needed further testing in order to exonerate appellant. We

further note that the likelihood that the items would have, in fact, exonerated

appellant was remote.      The items were found in an engine compartment of

appellant’s vehicle. They were not left in the passenger compartment of the vehicle

or in an unattended, neutral location.

      {¶ 12} Since the evidence at issue was only potentially useful, we must

determine whether its destruction was done in bad faith. This court has defined “bad

faith” as “something more than bad judgment or negligence.” State v. Durnwald,

163 Ohio App.3d 361, 2005-Ohio-4867, 837 N.E.2d 1234, ¶ 30 (6th Dist.). “It

imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a
      {¶ 13} In this case it is unclear whether the Quincy Police Department failed

to notify the Montpelier, Ohio authorities or whether the email was sent but police

failed to request that the items be preserved. At the hearing on the motion,

Montpelier Police Chief Daniel McKee testified that in an attempt to gather physical

evidence he visited the Quincy, Michigan police department and spoke with their

chief who indicated that the evidence had been destroyed following email

notification to all potentially interested jurisdictions. He could not recall if the

conversation took place before or after appellant was indicted. Chief McKee did not

indicate an awareness that the department had actually received the email and noted

that he learned that the items had been destroyed several months prior to appellant’s

indictment.

      {¶ 14} Coldwater, Michigan Police Lieutenant Patrick Beeman accompanied

Quincy, Michigan Police to Hamilton County, Ohio, where appellant was arrested

following a bank robbery. During the search of appellant’s vehicle, Lieutenant

Beeman stated that they recovered money and that there were also items recovered

in the engine compartment including gloves, a mask, and a toy gun.

      {¶ 15} As to the destruction of the recovered items, Beeman testified that after

appellant entered a no contest plea in the bank robbery case now-retired Quincy

Police Chief Onley sent out an email to all jurisdictions on the distribution list

informing the interested jurisdictions that the evidence would be destroyed if no one

contacted him expressing interest. According to Lieutenant Beeman, Onley was

never contacted and prior to retiring Onley, in “clearing up” old cases, destroyed the
appellant’s field sobriety tests, in direct contravention of department policy and the

unconvincing story of the “accidental” erasure, demonstrated bad faith. Id. at ¶ 31-

35. Similarly, in In re J.B., 2017-Ohio-406, 84 N.E.3d 23 (6th Dist.), we found that

the destruction of a deputy’s videotaped interview of a juvenile suspect amounted to

bad faith. So finding, we noted that the deputy was initially offered a copy of the

interview but declined, he then failed to request a copy after learning that appellant

had been criminally charged; the tape was ultimately overwritten. Id. at ¶ 35.

      {¶ 17} Based on the forgoing and examining the relevant case law, we find

that appellant failed to demonstrate that the state acted in bad faith in relation to the

destroyed evidence. In addition, we note that the court, being in the best position to

examine and weigh the evidence likewise determined that the state did not act in bad

faith. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 84.

Accordingly, we find that appellant’s first, second, and third assignments of error

are not well-taken.

Other Acts Evidence

      {¶ 18} Appellant’s fourth and final assignment of error contends that the trial

court abused its discretion when it allowed testimony about his prior bad acts.2

Appellant argues that the state’s desire to admit evidence of 18 possibly-related theft

offenses in Ohio, Michigan, and Indiana was unfairly prejudicial. The state counters

that the robberies had a “strikingly similar” theme thus establishing a modus

operandi of the suspect.

      {¶ 19} We note that “the admission of evidence lies within the broad discretion
the absence of an abuse of discretion that has created material prejudice.” State v.

Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62, citing State

v. Issa, 93 Ohio St.3d 49, 64, 752 N.E.2d 904 (2001). An abuse of discretion is

demonstrated where the trial court’s attitude in reaching its decision was

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983).

      {¶ 20} “As a general rule, evidence of previous or subsequent criminal acts,

wholly independent of the criminal offense for which a defendant is on trial is

inadmissible.” State v. Thompson, 66 Ohio St.2d 496, 497, 422 N.E.2d 855 (1981).

Evid.R. 404(B) provides:

             Evidence of other crimes, wrongs, or acts is not admissible to

      prove the character of a person in order to show action in conformity

      therewith. It may, however, be admissible for other purposes, such as

      proof of motive, opportunity, intent, preparation, plan, knowledge,

      identity, or absence of mistake or accident. In criminal cases, the

      proponent of evidence to be offered under this rule shall provide

      reasonable notice in advance of trial, or during trial if the court excuses

      pretrial notice on good cause shown, of the general nature of any such

      evidence it intends to introduce at trial.

      {¶ 21} Appellant argues that the “similarities” in the robberies were too

generic to be probative of the suspect’s identity; this includes the fact that the robber

wore a mask, entered the store when no customers were present, sometimes had his
or crimes unrelated to the charges at issue. It then sustained the objection and gave

the “other acts” evidence limiting instruction.

      {¶ 23} Testimony and evidence was then presented regarding the Ohio

robberies. Thereafter, the trial terminated due to appellant entering his no contest

pleas; thus, there had been very little evidence presented regarding the additional

robberies. Accordingly, in light of appellant’s no contest pleas, we cannot say and

will not speculate as to the nature of and what effect the evidence that had not yet

been presented would have had on the outcome of his trial. Appellant’s fourth

assignment of error is not well-taken.

      {¶ 24} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair proceeding and the judgment of the Williams County

Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to

pay the costs of this appeal.

Judgment affirmed.

                                                          State v. Morgan

                                                          C.A. No. WM-18-007
Mark L. Pietrykowski, J.                     _______________________________

                                                                     JUDGE

Thomas J. Osowik, J.

CONCUR.                                      _______________________________

                                                                     JUDGE




Gene A. Zmuda, P.J.,                         _______________________________

         CONCURS AND WRITES                                          JUDGE

SEPARATELY.




      ZMUDA, P.J., concurring,

      {¶ 25} I concur with the majority’s analysis and conclusions on appellant’s

first three assignments of error. Further, I agree with the majority’s conclusion on

the fourth assignment of error, albeit for different reasons. Specifically, I find that
       {¶ 26} In State v. Smith, 9th Dist. Lorain No. 08CA009338, 2008-Ohio-6942,

the Ninth District examined a trial court’s admission of other acts evidence prior to

a plea of no contest. At the outset, the court in Smith stated: “A no contest plea

generally waives the right to appeal most issues.            Thus, under ordinary

circumstances, this Court would conclude that Smith waived [his other acts

argument] by entering a no contest plea, a plea that admitted the facts alleged in the

indictment.” Id. at ¶ 3. Notwithstanding the foregoing, the court went on to find

that Smith’s appeal was not made knowingly, intelligently, and voluntarily because

Smith entered his plea for the express purpose of challenging the trial court’s other

acts ruling, and he was misled by his defense counsel, the state, and the trial court,

into thinking that a no contest plea would enable him to contest the ruling on appeal.

Id. at ¶ 5-7.

       {¶ 27} Here, there is nothing in the record to suggest that appellant pled no

contest in an effort to challenge the trial court’s evidentiary rulings under Evid.R.

404(B). Further, appellant was not misinformed that such evidentiary rulings could

be appealed following a plea of no contest. Because the trial court’s evidentiary

rulings are nonjurisdictional in nature, I conclude that appellant’s no contest plea

waives his right to contest such rulings. As such, I would dismiss appellant’s fourth

assignment of error outright, and I would refrain from addressing the merits of the

arguments raised therein. With that clarification in mind, I concur.
This decision is subject to further editing by the Supreme Court of

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court’s web site at:

http://www.supremecourt.ohio.gov/ROD/docs/.
