                           STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     October 11, 2018
               Plaintiff-Appellee,

v                                                                    No. 342044
                                                                     Marquette Circuit Court
FARID YOUSSEF BAZZI,                                                 LC No. 17-055734-FH

               Defendant-Appellant.


Before: MURPHY, P.J., and SAWYER and SWARTZLE, JJ.

PER CURIAM.

        Following a bench trial, defendant was convicted of assault of a prison employee, MCL
750.197c, as a third offense habitual offender, MCL 769.11. Defendant was sentenced to a term
of 2 to 10 years’ imprisonment, to be served consecutively with his prior active sentences and
with no credit for time served. Defendant appeals as of right. We affirm.

                                             I. FACTS

        Robert Ganzel, a corrections officer at the Marquette Branch Prison (MBP), worked the
night shift on January 3, 2017. Ganzel testified that, during his rounds, he noticed that his view
of defendant had been obstructed by a hanging sheet in violation of the prison’s rules. Ganzel
attempted to get defendant’s attention, but defendant did not respond. Fearing that something
was wrong, Ganzel called for assistance, and another correctional officer responded. When the
pair arrived at defendant’s cell, defendant was responsive, and he eventually agreed to take down
his sheet. Ganzel left with the other correctional officer. During his next round, Ganzel noticed
that defendant had repositioned the sheet so that passing correctional officers could not see him.
Ganzel began explaining to defendant that he needed to remain visible. At that point, defendant
pulled back the sheet and spat in Ganzel’s face. Ganzel pulled away and left the scene,
attempting to clear his face as he went. Video evidence of the incident depicted Ganzel
patrolling the cell block, standing for a short period of time in front of defendant’s cell, and then
recoiling sharply, jerking his head back as if struck by something. The video then showed
Ganzel walking away from the cell at a deliberate pace, wiping his face as he left.

        Defendant filed a motion seeking an order compelling the prosecution to produce “the
security camera footage relating to the site of the alleged incident that covers the four hour
period prior to the commission of the alleged offense by the Defendant.” Soon after, defense

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counsel received an email from the prosecution, stating that the prosecuting attorney had been in
contact with an employee of the MBP and learned that this video footage was unavailable
because the prison only retained video footage of the cell block for 29 days, after which it was
automatically destroyed unless a request had been made to preserve it. Defendant’s request for
the additional footage was made after the prison’s video retention period had elapsed.

         At a hearing on defendant’s motion, defendant outlined his narrative of what occurred on
the day in question. The trial court denied defendant’s motion, reasoning that the relevant issue
at trial would be whether defendant assaulted Ganzel and thus, defendant would need to show
that the footage requested was potentially exculpatory with regard to that issue. There was no
indication that the events leading up to the incident would demonstrate that defendant did not
commit the crime of which he was accused. Moreover, there was no evidence that the video
footage was destroyed in bad faith. Rather, it was destroyed as a function of the surveillance
equipment before this case was even filed.

       A bench trial was conducted immediately after the trial court ruled on defendant’s
motion. During the trial, the only evidence presented was (1) Ganzel’s testimony, (2) the
testimony of the officer who investigated the incident, and (3) the video of the actual incident
(which was preserved at the behest of the investigating officer, apparently before the MBP’s
video retention period had elapsed). The trial court found defendant guilty.

                                          II. ANALYSIS

        Defendant argues that his case should have been dismissed because video footage of the
hours immediately preceding the incident were not presented to the parties and were destroyed
before they were ever requested, although they contained potentially exculpatory evidence. We
disagree. This Court reviews a trial court’s decision regarding discovery for an abuse of
discretion. People v Green, 310 Mich App 249, 252; 871 NW2d 888 (2015). An abuse of
discretion occurs when the court’s decision falls outside the range of principled outcomes. Id.

        “[U]nless 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.” Arizona
v Youngblood, 488 US 51, 58; 109 S Ct 333; 102 L Ed 2d 281 (1988). See also People v Anstey,
476 Mich 436, 460-461; 719 NW2d 579 (2006) (“[T]he government’s failure to preserve
potentially exculpatory evidence violates a criminal defendant’s due process rights if the
defendant can show bad faith on the part of the government.”). The defendant bears the burden
of proving that the evidence was exculpatory or that the police acted in bad faith. People v
Dickinson, 321 Mich App 1, 16; 909 NW2d 24 (2017). Where evidence is not preserved due to
processes or policies that mandate its automatic or routine destruction, bad faith is typically not
proven. People v Jones, 301 Mich App 566, 581; 837 NW2d 7 (2013) (defendant could not
show bad faith where evidence of traffic stop recordings was destroyed due to police
department’s policy of automatically destroying recordings six months after the date of the stop,
even where the defendant was not arrested until after evidence was destroyed); People v
Johnson, 197 Mich App 362, 365; 494 NW2d 873 (1992) (“[T]he routine destruction of taped
police broadcasts, where the purpose is not to destroy evidence for a forthcoming trial, does not
mandate reversal.”); People v Petrella, 124 Mich App 745, 753; 336 NW2d 761 (1983) (“Even
though the police destroyed these notes ‘intentionally’, they did not do it either in bad faith or to

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deprive defendant of evidence. The police officer testified that the evidence was destroyed
pursuant to departmental policy to save space.”).

        In this case, the evidence indicated that the video footage of the hours immediately
preceding the incident was destroyed only because the system used by the MBP automatically
erased it in accordance with the prison’s video retention period. No evidence has been presented
to suggest that the correctional officers, or anyone else, took affirmative steps to erase the
footage at any point in time. Further, at trial, defense counsel admitted that (1) the prosecution
had not received any information, including the video that was ultimately produced, until after
the prison’s video retention period had elapsed; and (2) defense counsel had not requested
footage of the four-hour period immediately preceding the incident until after the video retention
period had passed. From these facts, it appears that neither the police nor the prosecution
intentionally destroyed the video footage, let alone in bad faith. Accordingly, defendant cannot
prevail. See Youngblood, 488 US at 58; Jones, 301 Mich App at 581.

        Moreover, defendant has failed to demonstrate that footage of the hours preceding the
incident would have been exculpatory. In arguing that such evidence would have exonerated
him, defendant can only point to his own narrative of potential corruption and conspiracy to
extend his period of incarceration among the correctional officers at the MBP. Generally, a
defendant must offer more than his or her own account of the events at issue to sufficiently show
that the evidence sought would have been exculpatory. Johnson, 197 Mich App at 365.
Regardless, the footage of the four hours leading up to the incident would not have exonerated
defendant because it would not have belied the evidence that defendant spat at Granzel. For
these reasons, the trial court’s decision did not fall outside the range of principled outcomes, and
defendant’s conviction must stand.

       Affirmed.



                                                             /s/ William B. Murphy
                                                             /s/ David H. Sawyer
                                                             /s/ Brock A. Swartzle




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