[Cite as State v. Lazier, 2013-Ohio-5373.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             WARREN COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :       CASE NO. CA2013-03-030

                                                   :              OPINION
    - vs -                                                         12/9/2013
                                                   :

TIMOTHY W. LAZIER,                                 :

        Defendant-Appellant.                       :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 12CR28789



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee


Diehl & Hubbell, LLC, Martin E. Hubbell, 304 East Warren Street, Lebanon, Ohio 45036, for
defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Timothy W. Lazier, appeals his conviction in the Warren

County Common Pleas Court for one count of failure to comply with an order or signal of a

police officer. Prior to trial, appellant moved to dismiss the charge due to the state's failure to

produce material evidence. The trial court denied appellant's motion. Appellant appeals

from the trial court's denial of his motion to dismiss and seeks reversal of his conviction. For
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the reasons set forth below, we affirm the judgment of the trial court.

       {¶ 2} On November 11, 2012, Officer Steven Dunham of the Franklin Police

Department was driving a marked cruiser equipped with a video recording system. Dunham

was patrolling for a white Ford Explorer that was possibly involved in a theft in Middletown,

Ohio. While driving southbound, Dunham came upon appellant driving a white Ford Explorer

traveling northbound in Franklin, Warren County, Ohio. As Dunham believed appellant's

vehicle may have been the white Ford Explorer involved in the Middletown theft, Dunham

activated his overhead lights and sirens and turned his cruiser around to pursue appellant.

At this time, Dunham witnessed appellant's vehicle rapidly accelerating and continuing north.

       {¶ 3} Initially, Dunham lost sight of appellant and traveled between 60 and 70 m.p.h.

in a residential area in order to catch up to appellant's vehicle. Dunham believed appellant

must have been traveling at speeds in excess of 60 m.p.h. in a 35 m.p.h. zone in order to

escape detection. Eventually, Dunham located appellant in his vehicle in the backyard of a

residence. The total distance of the pursuit was approximately six-tenths of a mile.

       {¶ 4} Appellant claimed he was driving the speed limit the entire time Dunham was

allegedly in pursuit of him and had slowed down a number of times as he passed various

residences to determine whether friends and family members were at home. Eventually,

appellant arrived at the residence where he had been traveling to in order to sell "tools" to the

occupants. Appellant asserted he only saw Dunham's cruiser twice, did not believe Dunham

was in pursuit of him, did not alter his route because of Dunham, and did not pull into the

backyard of the residence to hide from Dunham.

       {¶ 5} On January 22, 2013, appellant was indicted for failure to comply with an order

or signal of a police officer in violation of R.C. 2921.331(B). Appellant moved to dismiss the

case based upon the state's failure to produce the November 11, 2012 surveillance video

from Officer Dunham's cruiser. Appellant alleged this evidence was materially exculpatory to
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the case. The trial court denied the motion on March 15, 2013 without a hearing.

       {¶ 6} The case proceeded to a trial by jury on March 18, 2013, and appellant was

convicted on the failure to comply charge. Appellant was sentenced to serve six months in

jail and his driver's license was suspended for one year.

       {¶ 7} From his conviction, appellant appeals, raising a single assignment of error:

       {¶ 8} THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

DISMISS WITHOUT AN ORAL EVIDENTIARY HEARING.

       {¶ 9} In his sole assignment of error, appellant argues the trial court violated his due

process rights by failing to hold an evidentiary hearing on his motion to dismiss based on the

missing surveillance video. Specifically, appellant alleges the trial court was required to hold

a hearing to determine whether the surveillance video contained exculpatory evidence that

appellant was not speeding, could not see Dunham's cruiser, was not fleeing, and did not fail

to comply with Dunham's signal or order. Appellant maintains that the state improperly

withheld this evidence and that, even if the evidence is only "potentially useful" to appellant

rather than exculpatory, his due process rights were violated because it is "plausible" the

video was destroyed in bad faith.

       {¶ 10} Depending on the nature of the evidence, different tests are applied to

determine whether the unavailability of evidence amounts to the level of a due process

violation. State v. Gatliff, 12th Dist. Clermont No. CA2012-06-045, 2013-Ohio-2862, ¶ 40,

citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 73-77. "The state's failure to

preserve 'materially exculpatory' evidence, regardless of whether such failure was done in

good faith or bad faith, violates due process." Id., citing California v. Trombetta, 467 U.S.

479, 489, 104 S.Ct. 2528 (1984). 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
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reasonably available means." (Internal quotations omitted.) Id., quoting Powell at ¶ 74. The

defendant generally bears the burden of showing that the evidence was materially

exculpatory. Id., citing Powell at ¶ 74.

       {¶ 11} However, "a different rule is used when the evidence is merely 'potentially

useful.'" Gatliff at ¶ 41, quoting State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, at ¶

9-10. "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.,

citing Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333 (1988). Bad faith implies more

than bad judgment or negligence but, rather, "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." Id., citing Powell at ¶ 81.

       {¶ 12} "With regard to procedure, we note that the denial of a motion to dismiss on the

ground that the government failed to preserve exculpatory evidence is reviewed de novo."

State v. Combs, 5th Dist. Delaware No. 03CA-C-12-073, 2004-Ohio-6574, ¶ 25; State v.

Johnson, 8th Dist. Cuyahoga No. 82527, 2003-Ohio-4569, ¶ 7; United States v. Wright, 260

F.3d 568, 570 (6th Cir.2001).

       {¶ 13} We find appellant failed to meet his burden of proving that the surveillance

video was materially exculpatory and, therefore, that his due process rights were violated by

the state's failure to preserve the video or by the trial court's failure to hold an evidentiary

hearing on the matter. Appellant concedes the footage on the video is only "potentially

useful" and "could have" shown "the speed of appellant's vehicle, whether he could see the

officer's vehicle, and whether the movement of his vehicle was evasive."             Appellant

acknowledges these facts only "could have" swayed the jury to find in favor appellant.

Appellant does not argue the video would have proved his innocence.

       {¶ 14} Appellant's admissions demonstrate the video was not materially exculpatory.
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Moreover, appellant was able to obtain comparable evidence by other reasonably available

means. Appellant cross-examined Dunham as to the speed of appellant's vehicle, whether

appellant could see Dunham's cruiser, and whether the movement of appellant's vehicle was

evasive. Appellant also testified he was not speeding, he only saw the officer's cruiser

briefly, and he was not fleeing from Dunham.

       {¶ 15} Because the video did not provide any materially exculpatory evidence, our

inquiry turns to whether it would be potentially useful and whether the video was destroyed in

bad faith. Even assuming the video footage would have been potentially useful to appellant's

case, appellant fails to provide any evidence demonstrating that the video was destroyed in

bad faith. Appellant asserts that it is "plausible" the video was destroyed only after he filed

his motion to dismiss, therefore implying it was destroyed in bad faith. However, Dunham

testified at trial that the surveillance video was automatically uploaded from his cruiser to the

Franklin Police Department's system. Dunham stated he "didn't realize at the time" that the

video would be "purged" from the system unless "somebody goes in and checks the video

and marks it to be saved." When he realized the case was going to trial, Dunham "went back

to look for the video" but it had "already been purged from [the] system." Dunham testified

neither he nor the Franklin Police Department had any intention of destroying the video.

       {¶ 16} As appellant's assertion that the video was destroyed in bad faith is solely

speculative, we find the trial court did not err by denying appellant's motion to dismiss without

holding an evidentiary hearing.

       {¶ 17} Based upon the foregoing, appellant's sole assignment of error is overruled.

       {¶ 18} Judgment affirmed.


       HENDRICKSON, P.J., and M. POWELL, J., concur.




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