[Cite as State v. English, 2014-Ohio-2836.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      HURON COUNTY


State of Ohio                                     Court of Appeals No. H-13-024

        Appellee                                  Trial Court No. 13CRB01139

v.

Thomas G. English                                 DECISION AND JUDGMENT

        Appellant                                 Decided: June 27, 2014

                                              *****

        G. Stuart O’Hara, Jr., Law Director, and Scott M. Christophel,
        Assistant Law Director, for appellee.

        Thomas G. English, pro se.

                                              *****


        JENSEN, J.

        {¶ 1} Following a bench trial, defendant-appellant, Thomas G. English, pro se,

timely appeals the August 20, 2013 judgment of the Norwalk Municipal Court finding
him guilty of disorderly conduct, a violation of R.C. 2917.11(B)(2). For the reasons that

follow, we affirm the trial court’s judgment.

                                  I. Factual Background

       {¶ 2} On July 22, 2013, at approximately 1:30 a.m., English was leaving an adult

entertainment establishment located on U.S. Route 250 in Huron County, Ohio. Deputy

Shannon Lyons, of the Huron County Sheriff’s Department, observed English walking

across Route 250 stumbling towards a ditch next to the highway. She activated her

lights, stopped her patrol car, and requested that English come towards her. During her

encounter with English, Deputy Lyons detected the smell of alcohol and observed that he

had glassy eyes and slurred speech. She asked English if anyone could pick him up.

Upon concluding that no one could, Deputy Lyons placed English under arrest for

disorderly conduct while intoxicated.

       {¶ 3} During a hearing conducted on August 6, 2013, English informed the trial

court that on August 1, 2013, he requested that the state produce video surveillance from

the Huron County jail, depicting English’s conduct near the time of his arrest. The state

acknowledged that the video cameras at the jail may contain footage of English and

indicated that it had requested the recording from the facility. English sought a

continuance to allow for the state to provide him with the surveillance footage. The state

estimated that it could produce the recordings within two weeks and the court reset the

trial for August 20, 2013.




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       {¶ 4} When he appeared for the August 20, 2013 trial, English moved the court to

dismiss the case, explaining that the state never provided the recording from the Huron

County jail, which English believed would demonstrate that he was walking without

staggering or stumbling. The state indicated that only one employee at the facility was

capable of recovering the footage, and that employee was out of the office at the time the

video was requested. It explained that the sheriff’s office re-records over the booking

room video after thirty days and that despite requesting the video footage, it had since

been recorded over and was no longer available.

       {¶ 5} The court determined that the trial would proceed and that it would take the

issue of the destruction of the video under advisement. During trial, Deputy Lyons

testified for the state. English offered the testimony of Deputy Keith Roswell, the

booking officer who worked during the early morning hours of July 22, 2013. Deputy

Roswell testified that he smelled alcohol on English’s breath and that English admitted

that he had been drinking alcohol. He conceded, however, that English exhibited no

other signs of intoxication, including stumbling.

       {¶ 6} The trial court ultimately found English guilty of disorderly conduct and

imposed a fine of $75.00 plus costs of $104.05. English now appeals and assigns the

following error for our review:

              The trial court erred in overruling appellant’s motion to dismiss.

       Appellant’s due-process rights were violated by the state’s failure to

       preserve materially exculpatory evidence * * *[.]



3.
                                   II. Law and Analysis

       {¶ 7} In this case, the court did not issue a specific order denying English’s motion

to dismiss, nevertheless, it can be inferred from the trial court’s judgment of conviction

that English’s motion was, in fact, denied. See State ex rel. The V Cos. v. Marshall, 81

Ohio St.3d 467, 469, 692 N.E.2d 198 (1998) (“When a trial court fails to rule on a pretrial

motion [and proceeds to judgment in the case], it may ordinarily be presumed that the

court overruled it * * *.”). In reviewing a trial court’s decision on a motion to dismiss on

the basis that the state failed to produce materially exculpatory evidence, we conduct a de

novo review. State v. Benton, 136 Ohio App.3d 801, 805, 737 N.E.2d 1046 (6th

Dist.2000).

       {¶ 8} English contends that the video footage from the Huron County jail would

have supported his defense to the charge of disorderly conduct while intoxicated by

demonstrating that when he was being booked, he was not stumbling. He claims that his

due-process rights under the Fourteenth Amendment to the United States Constitution

were violated when the state failed to preserve the recording which he characterizes as

“materially exculpatory evidence.”

       {¶ 9} In general, “the Due Process Clause of the Fourteenth Amendment to the

United States Constitution protects a criminal defendant from being convicted of a crime

where the state either fails to preserve materially exculpatory evidence or destroys in bad

faith potentially useful evidence.” (Internal citations omitted.) Benton at 805. The

Supreme Court of Ohio has concluded that evidence is materially exculpatory “only if



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there is a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” State v. Jackson, 57 Ohio St.3d 29,

33, 565 N.E.2d 549 (1991), quoting State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898

(1988), paragraph five of syllabus. A “‘reasonable probability’ is a probability sufficient

to undermine confidence in the outcome.” Id. We have described evidence as

“materially exculpatory” where: “(1) the evidence possesses an exculpatory value that

was apparent before the evidence was destroyed, and (2) is of such a nature that the

defendant would be unable to obtain comparable evidence by other reasonable means.”

Benton at 805.

       {¶ 10} Where a defendant moves to have evidence preserved and the state

nonetheless destroys the evidence in accordance with its normal procedures, the burden

shifts to the state to show that the evidence was not exculpatory. Id. However, “[i]f the

state fails to carry this burden, the defendant must still show that the evidence could not

have been obtained by other reasonable means.” Id. at 805-06.

       {¶ 11} The state argues that the video footage was not materially exculpatory

because English was arrested, charged, and convicted based upon conduct occurring an

hour before the recording, not upon his conduct while at the correctional facility. It

maintains that even if the evidence was potentially useful, its failure to preserve the

recording was not in bad faith. Under the circumstances, the state claims, the proper

remedy was to prohibit it from producing any evidence of what may have been contained

in the recording. It contends that it never sought to admit such evidence. It also points



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out that English was able to present the evidence that he claims was depicted in the video

through Deputy Roswell’s testimony, thereby avoiding any potential prejudice to English.

       {¶ 12} We agree with the state that the evidence at issue was not “materially

exculpatory.” Although the evidence may have been minimally useful, its evidentiary

value was limited in that English was arrested based on Deputy Lyons’ observations of

him after stopping him on U.S. Route 250 – the recording depicts conduct that occurred

at the booking office an hour after English was arrested. During this time the alcohol in

his system was presumably dissipating. While the state was clearly under a duty to

preserve the evidence requested by English, the destruction of the evidence was

accomplished not through bad faith, but through poor judgment or negligence. It was the

standard practice to re-record every thirty days and the absence of the employee

responsible for recovering the video failed to halt that process. In addition, Deputy

Roswell’s testimony established what English sought to demonstrate through the video

footage: that English was not stumbling or staggering while at the jail. The state did not

attempt to introduce any evidence to dispute that fact.

       {¶ 13} Given these facts, we find no error in the trial court’s denial of English’s

motion to dismiss. Given the limited probative value of the evidence and English’s

ability to introduce the evidence through other means, we are not convinced that the

result of the proceeding would have been different had the video footage been available.

We, therefore, find English’s assignment of error not well-taken.




6.
                                     III. Conclusion

       {¶ 14} We find English’s assignment of error not well-taken and affirm the August

20, 2013 judgment of the Norwalk Municipal Court. The costs of this appeal are

assessed to English pursuant to App. R. 24.

                                                                     Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See
also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                              _______________________________
                                                           JUDGE
Stephen A. Yarbrough, P.J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




          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.sconet.state.oh.us/rod/newpdf/?source=6.




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