[Cite as State v. Wilson, 2020-Ohio-158.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                       C.A. No.     18AP0037

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
SCOTT D. WILSON                                     WAYNE COUNTY MUNICIPAL COURT
                                                    COUNTY OF WAYNE, OHIO
        Appellant                                   CASE No.   2017 TR-C 009806

                                  DECISION AND JOURNAL ENTRY

Dated: January 21, 2020



        CARR, Judge.

        {¶1}     Defendant-Appellant Scott D. Wilson appeals the judgment of the Wayne County

Municipal Court. This Court affirms.

                                               I.

        {¶2}     Around midnight on September 24, 2017, Deputy Daniel Broome and Sergeant

Charles Ellis with the Wayne County Sheriff’s Office were dispatched to an address on Sterling

Road to investigate a suspected prowler. They arrived in separate vehicles. While Deputy

Broome was speaking with someone outside the residence, Sergeant Ellis crossed the road to the

nearby cornfield to further investigate. Sergeant Ellis saw a vehicle coming towards him at a

high rate of speed. According to Sergeant Ellis, the driver honked the vehicle’s horn and the

vehicle swerved toward him. Sergeant Ellis had to jump the ditch into the cornfield to avoid

being hit. Deputy Broome heard the car horn and observed the vehicle travel back into its lane.

Sergeant Ellis got into his marked cruiser and began to follow the vehicle. Sergeant Ellis
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observed the vehicle turn on to Shorle Road without using a turn signal. Sergeant Ellis then

activated his overhead lights; however, the vehicle did not stop until after turning into a

driveway, again without utilizing a turn signal. The driver was identified as Wilson. Ultimately,

Wilson was arrested for driving while under the influence of alcohol. A warrant was obtained

and a blood draw was performed on Wilson.

       {¶3}   Wilson was charged with violating R.C. 4511.19(A)(1)(a). On September 28,

2017, Wilson’s counsel filed a motion to preserve evidence, which was granted the next day.

Subsequently, Wilson filed a motion to suppress.         On December 4, 2017, Wilson was

additionally charged with violating R.C. 4511.19(A)(1)(f) (prohibited blood alcohol content).

On December 12, 2017, Wilson filed a motion to dismiss alleging that Deputy Broome’s body

camera video was deleted in violation of Wilson’s due process rights. Several exhibits were

attached to the motion. A hearing was held on both Wilson’s motion to dismiss and the motion

to suppress. At the hearing, it was discovered that there also may have been body camera video

from Sergeant Ellis that was not disclosed. The trial court denied the motion to dismiss but

continued the hearing on the motion to suppress. The trial court ordered the prosecution to

determine whether any other videos were available, and, if not, why they were not available.

       {¶4}   In March 2018, Wilson filed a second motion to dismiss after he learned that

Sergeant’s Ellis’s body camera video had also been deleted.         The matter proceeded to a

combined hearing on the second motion to dismiss and the motion to suppress. The trial court

denied both motions. Wilson thereafter entered a plea of no contest to the R.C. 4511.19(A)(1)(f)

charge and the remaining charge was dismissed. The trial court subsequently sentenced Wilson.

       {¶5}   Wilson has appealed, raising a single assignment of error for our review.
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                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. WILSON WHEN
       IT DENIED MR. WILSON’S MOTIONS TO DISMISS BECAUSE OF THE
       STATE OF OHIO’S FAILURE TO PRESERVE EVIDENCE AFTER
       ORDERED TO PRESERVE EVIDENCE BY THE TRIAL COURT IN
       VIOLATION OF THE DUE PROCESS RIGHTS OF MR. WILSON AS
       GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED
       STATES CONSTITUTION.

       {¶6}    Wilson argues in his sole assignment of error that the trial court erred in denying

Wilson’s motions to dismiss.

       {¶7}    “We review the trial court’s decision on a pre-trial motion to dismiss de novo.”

State v. Jackson, 9th Dist. Summit No. 28625, 2018-Ohio-19, ¶ 26, quoting State v. Franchi, 9th

Dist. Summit No. 27797, 2016-Ohio-1195, ¶ 5. “[T]he suppression of materially exculpatory

evidence violates a defendant’s due process rights, regardless of whether the state acted in good

or bad faith.” State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, ¶ 7. However, “[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.” Id. at ¶ 9, quoting Arizona v.

Youngblood, 488 U.S. 51, 58 (1988).

       {¶8}    “Generally, the defendant bears the burden of proving that evidence was

materially exculpatory.” State v. Nastick, 9th Dist. Summit No. 28243, 2017-Ohio-5626, ¶ 11.

“However, in cases where a defendant has made a specific request for preservation of a particular

piece of evidence and the evidence has been subsequently lost or destroyed, whether

inadvertently or not, the burden shifts to the state to show that the evidence was not material[ly

exculpatory].” (Internal quotations and citation omitted.) Id.
                                                4


       {¶9}    When missing evidence would not have been used to acquit the appellant of the

charge itself, and, instead, would have been used only with regard to the validity of the stop that

led to appellant’s arrest, the missing evidence could not have been materially exculpatory

evidence. Geeslin at ¶ 13. In that case, the evidence could only have been potentially useful. Id.

                                             Burden

       {¶10} Wilson first argues that the trial court, in ruling on both motions to dismiss, failed

to make an explicit determination as to which party had the burden to demonstrate whether the

video was materially exculpatory. Thus, Wilson asserts that a remand is required so that the trial

court can apply the correct law. Here, while the trial court did not specify which side had the

initial burden, the trial court also did not use any language suggesting it applied an incorrect

burden, nor does Wilson assert that the entry affirmatively indicates that the trial court applied

the incorrect burden. Given our de novo review, and in the absence of evidence that the trial

court incorrectly applied the law, we will proceed to review the merits of the motions and

conclude a remand is unnecessary.

                                    Deputy Broome’s Video

       {¶11} Deputy Broome testified that on the day of Wilson’s arrest, he was investigating a

suspected prowler on Sterling Road. Deputy Broome was wearing a body camera attached to the

left side of his abdomen, which he activated when he arrived at the scene. While Deputy

Broome was speaking with one of the witnesses, he observed Sergeant Ellis walk across the road

to the cornfield. Deputy Broome was facing westbound when he heard a car horn. When he

looked up, he saw a vehicle traveling westbound at a high rate of speed. The vehicle had already

passed Sergeant Ellis. Deputy Broome initially observed the vehicle traveling in the wrong lane

but then saw it return to the correct lane of travel. Deputy Broome had no other contact with the
                                                5


vehicle and turned off the body camera when he finished up at the residence. Deputy Broome

estimated that his camera may have captured Wilson’s vehicle for two to three seconds.

       {¶12} Deputy Broome used the video to verify his observations and from that

information created a supplemental narrative to his report. That narrative was read into the

record and is very similar to Deputy Broome’s testimony at the first hearing.

       {¶13} Because nothing ever came of the investigation at the residence, as per policy,

Deputy Broome placed the body camera video in the category “[g]eneral case reports and

contact.” Those videos are automatically deleted after 30 days. Additionally, this video was

filed in the case for the prowler, not Wilson’s case. The record discloses that, in addition to the

general order for the preservation of evidence, within the thirty-day time frame, Wilson’s

attorney requested that the prosecution provide him with a copy of the body camera video from

Deputy Broome. Prior to the expiration of the 30-day window, the prosecution asked Deputy

Broome for help in locating the video because the prosecutor could not find it. Deputy Broome

discovered the prosecutor had difficulty finding it because it was filed with the prowler case.

Deputy Broome then provided the correct case number to the prosecution. Subsequently, the

prosecution indicated that it still had not received the video, and, at that point, Deputy Broome

forwarded the request to Captain Hunter. Captain Hunter ultimately indicated that, because of

the video’s categorization, it was automatically deleted after 30 days.          Deputy Broome

maintained that he did not tamper with the video or make any attempts to hide or dispose of the

video improperly.

       {¶14} Because the record is clear that Wilson specifically requested Deputy Broome’s

body camera video, and did so prior to its automatic deletion, the burden shifted to the state to

show that the evidence was not materially exculpatory. See Nastick, 2017-Ohio-5626, at ¶ 12.
                                                 6


Given Wilson’s charges, driving while under the influence of alcohol and driving with a

prohibited blood alcohol content, we can only conclude that the State met its burden. At the time

of the first hearing, Deputy Broome’s testimony was unchallenged. Nothing in his testimony

evidences that the video would contain any exculpatory evidence. “[T]he missing evidence

would not have been used to acquit [Wilson] of the impaired-driving charge itself. Rather, it

would have been used only with regard to the validity of the stop that led to [Wilson’s] arrest.”

Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, at ¶ 13. “[T]herefore, [] the missing evidence in

this case could not have been materially exculpatory evidence * * *; but was instead potentially

useful evidence.” Id.

       {¶15} Because the evidence was only potentially useful, Wilson bore the burden of

demonstrating that the police acted in bad faith in the deletion of the video. Id. at ¶ 9. “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 quotations and citations omitted.) Nastick at ¶ 19. Here,

while the video clearly should have been preserved, under the circumstances before us, we

cannot say that Wilson demonstrated that police acted in bad faith. Deputy Broome attempted to

assist the prosecution in procuring the video, yet, unfortunately, the video was destroyed

nonetheless.

       {¶16} Accordingly, we determine Wilson has not shown that the trial court erred in

denying the first motion to dismiss.
                                                 7


                                     Sergeant Ellis’s Video

        {¶17} Wilson did not learn that Sergeant Ellis had video from his body camera that was

not provided until the first hearing on Wilson’s first motion to dismiss. There is nothing in the

record that suggests that Wilson asked that this particular video be preserved until after it was

automatically deleted. See Nastick, 2017-Ohio-5626, at ¶ 11. Thus, we conclude that Wilson

bore the initial burden to prove that the evidence was materially exculpatory. Id.

        {¶18} The trial court considered the transcript from the first hearing, as well as evidence

presented at the second hearing, in ruling on the second motion to dismiss. At the first hearing,

Sergeant Ellis testified that his body camera was activated the entire time he was on the scene of

the call about the prowler. However, he also indicated the video would not have captured when

Wilson’s vehicle passed because Sergeant Ellis was facing into the cornfield, away from the

road. Sergeant Ellis nonetheless testified that he heard a vehicle coming and began to watch the

edge of the road. He observed the vehicle traveling at a high rate of speed, which he estimated

was 70 miles per hour. Sergeant Ellis testified that the vehicle then honked its horn and swerved

toward him, traveling westbound in the eastbound lane. Sergeant Ellis averred that he had to

jump the ditch into the cornfield to avoid being hit. Sergeant Ellis then got into his marked

cruiser and proceeded to follow the vehicle driven by Wilson.          Sergeant Ellis testified to

witnessing four traffic violations in his pursuit of Wilson: speeding, leaving the lane of travel,

and two instances of failing to use a turn signal, which both happened while Sergeant Ellis was

in pursuit of the vehicle.

        {¶19} At the second hearing, Sergeant Ellis testified that the video from his body camera

was labeled under the case number for the prowler investigation, which was labeled as a general

case report. Because of that, that video was also deleted automatically. However, Sergeant Ellis
                                                 8


was not aware of how long the video was kept in the system until it was deleted. Sergeant Ellis

believed that he had labeled the video properly under the circumstances. He explained that, after

he received the preservation order, he preserved all of the videos associated with Wilson’s case

number. Sergeant Ellis asserted that he did not purposefully leave the video to be deleted and

did not do anything malicious to try to hide the video.

       {¶20} Sergeant Ellis clarified his testimony from the first hearing and explained that he

was able to observe Wilson’s vehicle by turning his head and looking over his shoulder. He

maintained that his body was still facing the cornfield and so the vehicle would not have been

recorded on the body camera video. Sergeant Ellis also explained that prior to getting into his

cruiser to pursue Wilson’s vehicle, he turned off the body camera.

       {¶21} In addition, Wilson also testified at the hearing. Wilson denied committing any

traffic violations. Upon seeing police lights, Wilson maintained that he sounded his horn as a

safety precaution; he maintained that the nearby residence had cattle and he was concerned that

perhaps some had gotten loose. Wilson denied driving on the wrong side of the road. However,

Wilson also admitted to drinking three 16-ounce beers during the hour before he was stopped by

police. He also acknowledged that he was intoxicated that evening, but asserted that it was “not

until [he] got home and [he] did start to feel the effects as [he] got home.” Wilson stated that he

“felt fine to drive home and as [he] got home [he] progressively got worse.” Wilson believed

there was no reason for Sergeant Ellis to stop Wilson’s vehicle.

       {¶22} We conclude that Wilson failed to demonstrate the video contained materially

exculpatory evidence. See Nastick, 2017-Ohio-5626, at ¶ 11. Here, even assuming the video did

record Wilson’s vehicle, the missing evidence would not have been used to acquit Wilson of the

charge itself, and, instead, would have been used only with regard to the validity of the stop that
                                                 9


led to Wilson’s arrest. See Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, at ¶ 13. Thus, at best,

the evidence could only have been potentially useful.          See id.   Further, Wilson has not

demonstrated that the destruction of the video was done in bad faith. See id. at ¶ 9. While the

deletion of the video was unfortunate and should not have occurred, Wilson did not show that

Sergeant Ellis acted with an ulterior motive or ill will. See Nastick at ¶ 19. Accordingly, Wilson

has not demonstrated that the trial court erred in denying his second motion to dismiss.

       {¶23} Wilson’s assignment of error is overruled.

                                                III.

       {¶24} Wilson’s assignment of error is overruled. The judgment of the Wayne County

Municipal Court is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.




                                             DONNA J. CARR
                                             FOR THE COURT



TEODOSIO, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

NORMAN R. “BING” MILLER, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting
Attorney, for Appellee.
