[Cite as State v. Hughes, 2016-Ohio-137.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   C.A. CASE NO. 26869
                                                  :
 v.                                               :   T.C. NO. 1998-CR-01706
                                                  :
 THOMAS C. HUGHES                                 :   (Criminal appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                  Rendered on the ___15th___ day of ___January___, 2016.

                                             ...........

CARLEY J. INGRAM, Atty, Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, 120 W. Second Street, Suite 706,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                            .............

DONOVAN, J.

        {¶ 1} Defendant-appellant Thomas C. Hughes appeals a decision of the

Montgomery County Court of Common Pleas, Criminal Division, overruling his motion to

preserve physical evidence. Hughes filed a timely notice of appeal with this Court on

October 19, 2015.
                                                                                           -2-


       {¶ 2} On September 29, 1998, Hughes was convicted of one count of felonious

assault, one count of kidnapping, and three counts of rape. The trial court subsequently

sentenced him to life in prison.

       {¶ 3} On August 6, 2015, Hughes filed a motion to preserve physical evidence with

the trial court. In support of his motion, Hughes cited a decision from the Ohio Supreme

Court, State v. Roberts, 134 Ohio St.3d 459, 2012-Ohio-5684, 983 N.E.2d 334, wherein

the court held that “the obligation to preserve and catalog criminal-offense-related

biological evidence imposed upon certain government entities by R.C. 2933.82 applies to

evidence in the possession of those entities at the time of the statute's effective date.” Id.

at ¶ 31.

       {¶ 4} On September 21, 2015, the trial court overruled Hughes’ motion, finding that

the Ohio Supreme Court’s holding in Roberts did not retroactively apply to Hughes, who

was convicted and sentenced in September of 1998.

       {¶ 5} It is from this judgment that Hughes now appeals.

       {¶ 6} Hughes’ sole assignment of error is as follows:

       {¶ 7} “THE TRIAL COURT ERRED WHEN IT OVERRULED HUGHES’ MOTION

TO PRESERVE PHYSICAL EVIDENCE.”

       {¶ 8} In his sole assignment, Hughes contends that the trial court erred when it

overruled his motion to preserve physical evidence. Specifically, Hughes argues that the

Ohio Supreme Court’s holding in Roberts was misconstrued by the trial court because

R.C. 2933.82 “applies to evidence that was in the government’s possession at the time

of the statute’s enactment.” Roberts, 134 Ohio St.3d 459, 2012-Ohio-5684, 983 N.E.2d

334, ¶ 25. We note that the State has filed a brief in which it concedes error regarding
                                                                                          -3-

the trial court’s determination that the holding in Roberts does not entitle Hughes to an

order preserving all biological and/or physical evidence collected in the instant case.

       {¶ 9} The issue in the instant case was not whether the holding in Roberts

retroactively applied to Hughes. The issue was whether the evidence which Hughes

sought to be preserved was in the possession of the State at the time of the effective date

of R.C. 2933.82. Thus, the State concedes error on appeal.

       {¶ 10} Accordingly, we find that the trial court erred when it overruled Hughes’

motion to preserve physical evidence. The effective date of R.C. 2933.82 was July 6,

2010. Therefore, pursuant to Roberts, Hughes is entitled to an order preserving all of

the physical evidence in the possession of the State as of July 6, 2010. Both parties

agree that the proper remedy on appeal is to reverse and remand this case for an order

preserving all biological/physical evidence in the instant case.

       {¶ 11} Hughes’ sole assignment of error is sustained.

       {¶ 12} Hughes’ sole assignment of error having been sustained, the judgment of

the trial court is reversed, this matter is remanded to the trial court for proceedings

consistent with this opinion.

                                       ..........

FROELICH, P.J. and FAIN, J., concur.

Copies mailed to:

Carley J. Ingram
Robert Alan Brenner
Hon. Dennis J. Adkins
