[Cite as Cleveland v. Townsend, 2013-Ohio-5421.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99256



                                CITY OF CLEVELAND
                                                   PLAINTIFF-APPELLEE

                                                    vs.

                               NATASHA TOWNSEND
                                                   DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                      Criminal Appeal from the
                                     Cleveland Municipal Court
                                     Case No. 2012 CRB 018014

        BEFORE:          McCormack, J., E.A. Gallagher, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: December 12, 2013
ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
City of Cleveland Law Director
Victor R. Perez
Chief City Prosecutor

Bidisha Bagchi
Assistant City Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} Defendant-appellant, Natasha Townsend, appeals her convictions in the

Cleveland Municipal Court. For the following reasons, we affirm.

                        Procedural History and Substantive Facts

       {¶2} On June 5, 2012, a complaint was filed against Townsend in the Cleveland

Municipal Court, charging her with failure to comply in violation of R.C. 2921.331 and

resisting arrest in violation of Cleveland Codified Ordinances 615.08.              Townsend

pleaded not guilty to the charges, and the case proceeded to a jury trial.

       {¶3} The facts presented at trial were as follows:       On June 2, 2012, Cleveland

police officer Robert Zubek was directing traffic at Cleveland Hopkins International

Airport on the lower baggage claim roadway when he encountered Townsend driving a

minivan.   Townsend arrived at the airport to pick up her sister.            Officer Zubek and

Townsend spoke. Officer Zubek testified that he informed Townsend that she could not

leave her vehicle unattended outside the baggage claim area and that she needed to park in

the parking garage if she intended to go inside the airport. Pursuant to Transportation

Security Administration (“TSA”) safety regulations and mandates, no vehicles are

permitted to be stopped or unattended near the terminal. Signs informing drivers of this

mandate were posted throughout the area.           Townsend testified that Officer Zubek

instructed her to park outside the baggage claim area in contravention of the mandate.

       {¶4} The baggage claim area was congested during this time, and Officer Zubek

continued to direct traffic.   Shortly after speaking with Townsend, Zubek observed a
minivan parked and unattended at the curb.      No one nearby claimed the vehicle.     Officer

Zubek issued a parking ticket and proceeded to have the owner of the vehicle paged by

airport personnel.    Officer Zubek waited ten minutes before beginning the procedure to

tow the vehicle.      He pulled his zone car up next to the minivan and turned on the

overhead lights.     At that point, a female exited the airport yelling, “What are you doing to

my van?”        Officer Zubek recognized the female as Townsend, from their earlier

conversation.

       {¶5} Officer Zubek informed Townsend that he intended to cite her for failure to

comply with his earlier parking instructions.      To this end, Officer Zubek demanded her

driver’s license.    Townsend refused to provide her license, and she entered the minivan,

despite Officer Zubek informing her that he would arrest her if she refused his request.

After three requests for Townsend’s license, Officer Zubek called for backup.       Townsend

attempted to close the minivan door, but Zubek physically stopped her. As backup

arrived on the scene, Officer Zubek informed Townsend that she was under arrest, and he

ordered her to step out of the vehicle.        Townsend refused and had to be forcefully

removed.    In the process of effecting the arrest, Townsend smacked Officer Zubek’s arm

away and shoved him back against his car.       Townsend attempted to flee but was taken to

the ground by Officer Zubek and another officer.       Townsend struggled with the officers,

preventing them from handcuffing her on the ground. Only upon threat of being subdued

by a taser did Townsend submit to arrest.
      {¶6} At the conclusion of trial, the jury found Townsend guilty of both charges.

At sentencing, the trial court imposed a fine of $1,000 and a jail term of 180 days for

failure to comply and a fine of $750 and a jail term of 90 days for resisting arrest.   The

trial court suspended both jail terms and all but $250.00 of the fines. Townsend timely

appealed, presenting three assignments of error.

                                  Assignments of Error

      I. The trial court erred, in derogation of defendant’s right to due process of
      law, as guaranteed by the 14th Amendment to the Constitution of the United
      States, in denying defendant’s motion to dismiss for vindictive prosecution.

      II. The trial court committed plain error in instructing the jury on the
      charge of failure to comply, in that the jury was permitted to base its
      conviction on the failure of defendant to comply with one of two acts, one of
      which she had been acquitted of, in violation of defendant’s right against
      double jeopardy, as guaranteed by the 5th Amendment to the Constitution of
      the United States.

      III.   The trial court erred, in derogation of Defendant’s right to due process

      of law, as guaranteed by the 14th Amendment to the Constitution of the

      United States, in denying Defendant’s motion to dismiss for failure to

      preserve evidence.
                                  Vindictive Prosecution

       {¶7} In her first assignment of error, Townsend argues that the trial court erred in

denying her motion to dismiss for vindictive prosecution. The record does not reflect

that Townsend filed such a motion. On June 19, 2012, Townsend filed a motion to

dismiss based on double jeopardy and collateral estoppel, which was denied. On October

2, 2012, Townsend filed a second motion to dismiss, asserting that the city had destroyed

“materially exculpatory” evidence.    This motion was also denied.      Townsend failed to

raise the issue of vindictive prosecution before the trial court, and she now asks this court

to find that the trial court erred by not, sua sponte, raising this argument for her and

dismissing the case. We decline to do so.

       {¶8} Defects in the institution of the prosecution and/or in the indictment must be

raised before trial or they are waived.     Crim.R. 12(C), (H).     “As a general rule, an

appellate court will not consider an alleged error that the complaining party did not bring

to the trial court’s attention at the time the alleged error is said to have occurred.” State

v. Petkovic, 8th Dist. Cuyahoga No. 97548, 2012-Ohio-4050, ¶ 54, quoting State v.

Slagle, 65 Ohio St.3d 597, 604, 605 N.E.2d 916 (1992).

       {¶9} Townsend’s argument under this assignment of error is based upon a separate

Cleveland Municipal Court case that stemmed from the same incident of June 2, 2012,

wherein she was charged with failure to display her driver’s license, in violation of

Cleveland Codified Ordinances 435.06. Townsend pleaded no contest to the charge, but
upon presenting her driver’s license at arraignment, the court found her not guilty and

dismissed that case.    The complaint in the present case was filed the same day.

        {¶10} Having failed to either file a pretrial motion to dismiss on the grounds of

vindictive prosecution by the city for Townsend’s successful defense of the display of

license refusal charge, or otherwise raise that issue in the trial court, Townsend has not

preserved the issue for appellate review, and we will not consider that issue for the first

time on direct appeal. State v. Cline, 2d Dist. Champaign No. 07CA02, 2008-Ohio-1866,

¶ 18.

        {¶11} Even were we to assume for the sake of argument that Townsend had

properly raised this issue before the trial court, we note that the timeline does not suggest

vindictiveness on the part of the city. Townsend’s parking incident occurred on Saturday

June 2, 2012, at which point she was not only issued a ticket for her refusal to produce her

driver’s license pursuant to Cleveland Codified Ordinances 435.06, but she was arrested in

connection with the charges in this case.       A mere three days later, on Tuesday June 5,

2012, Townsend was found not guilty of the display of license charge and she was

charged with the crimes in this case. We cannot find a vindictive purpose in this series

of events. Townsend’s argument would impose a presumption of vindictiveness on the

prosecutor if he was unable to have his charges prepared on Sunday and filed on Monday.1


         Although the city presents an argument on appeal attempting to rebut any presumption of
        1


vindictiveness, we note that such evidence is not part of the record before us due to Townsend’s
failure to raise this issue at the trial court. This is an instructive example of the necessity of
complying with Crim.R. 12(C), (H) and the holding in Cline.
       {¶12} Townsend’s first assignment of error is without merit.

                           Jury Instructions on Failure to Comply

       {¶13} As discussed above, in addition to the charges in the present case, Townsend

was charged with failure to display her license in the separate case to which we refer in

the first assignment of error. Although she pleaded no contest in that case, she was

found not guilty and the case was dismissed.         Townsend now argues that the trial court

erred by not including a jury instruction clarifying that she could not be found guilty of the

failure to comply charge based upon her refusal to provide Officer Zubek with her driver’s

license.

       {¶14} Because Townsend did not object to the jury instructions, we review this

claim for plain error. State v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-Ohio-1446,

¶ 32; Crim.R. 30(A).       Under Crim.R. 52(B), a plain error affecting a substantial right

may be noticed by an appellate court even though it was not brought to the attention of the

trial court.   An error rises to the level of plain error only if, but for the error, the outcome

of the proceedings would have been different. State v. Harrison, 122 Ohio St.3d 512,

2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61; State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d

804 (1978).      Notice of plain error “is to be taken with the utmost caution, under

exceptional circumstances, and only to prevent a manifest miscarriage of justice.” Id.

       {¶15} Townsend bases her argument on this court’s decision in State v. Jackson,

8th Dist. Cuyahoga No. 95920, 2011-Ohio-5920. The defendant in Jackson was charged

with felonious assault, domestic violence, and endangering children. Jackson argued that
his due process rights were violated because the indictment failed to specify which of four

instances of alleged abuse of Jackson’s son (punching him, beating him with a belt,

burning him with a fork, and pushing him out of the car) constituted the bases of the

charges.

       {¶16} This court noted that pursuant to Crim.R. 31(A), a criminal defendant is

entitled to a unanimous jury verdict. Id. at ¶ 21. “If two distinct offenses are presented in

a single charge, however, unanimity may be compromised.          That is, if two offenses are

joined in a single count, while the jury may agree that the defendant is guilty of that count,

they may have not unanimously decided which set of facts resulted in the offense.”      Id. at

¶ 21, citing State v. Ward, 9th Dist. Lorain No. 90CA009720, 2011-Ohio-518, ¶ 5.

       {¶17} In Jackson, we noted that it was impossible to determine if the jury convicted

the defendant of child endangering based on punching his son in the stomach or burning

him, or if some of the jurors convicted based upon one incident and other jurors convicted

him based on another.    Id. at ¶ 45.   We concluded that each member of the jury may not

have based his or her decision on the same facts, thereby denying Jackson his right to a

unanimous verdict. We also noted that the indictment failed to protect Jackson against

double jeopardy in that it did not apprise Jackson of what occurrences formed the basis of

the charges he faced, and the jury had no idea which charge referred to which act.      Id. at

¶ 46-47.

       {¶18} The present case differs from Jackson in an important respect.       The failure

to comply charge in the complaint against Townsend specifically contains a “to wit”
clause, alleging that Townsend failed to comply in that she “left van unattended and

refused to move van 30 minutes at airport.”        In contrast, Townsend’s failure to provide

her license is not charged in the complaint.      Furthermore, the testimony elicited at trial

pertained to Officer Zubek’s authority to direct and regulate traffic.          There was no

testimony offered regarding his lawful authority to demand Townsend’s driver’s license.

Consistent with this, the trial court’s jury instructions on the failure to comply charge

included an instruction regarding the officer’s authority to direct and regulate traffic.

There was no instruction provided regarding the officer’s lawful authority to demand

Townsend’s license. Finally, the jury verdict indicates that the jury found Townsend

guilty of failure to comply “as charged in the complaint.”          In light of these facts, we

cannot say the trial court’s jury instructions resulted in plain error.

       {¶19} Townsend’s second assignment of error is overruled.

                                Failure to Preserve Evidence

       {¶20} On July 10, 2012, Townsend filed a motion to preserve evidence, requesting

the city preserve “any and all videotapes, audiotapes, DVD that may not have been used in

charging the defendant.” Prior to trial, Townsend moved the court to dismiss the case,

arguing that the city had destroyed materially exculpatory evidence, and in the alternative,

that the city had, in bad faith, destroyed potentially useful evidence.           Townsend’s

argument concerns video surveillance evidence made by Cleveland Hopkins Airport that

would have recorded Townsend’s interactions with Officer Zubek on June 2, 2012.
       {¶21} The 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, 254, 2007-Ohio-5239, 878 N.E.2d 1, citing Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).            To be materially

exculpatory, “evidence must both possess an exculpatory value that was apparent before

the evidence was destroyed, and be of such a nature that the defendant would be unable to

obtain comparable evidence by other reasonably available means.” California v.

Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). “Even in the

absence of a specific request, the prosecution has a constitutional duty to turn over

exculpatory evidence that would raise a reasonable doubt about the defendant’s guilt.”

Id. at 485.

       {¶22} This court has previously held that the possibility that evidentiary material

could have exculpated the defendant if preserved or tested is not enough to satisfy the

standard of constitutional materiality. State v. Durham, 8th Dist. Cuyahoga No. 92681,

2010-Ohio-1416, ¶ 12, citing Arizona v. Youngblood, 488 U.S. 51, 56, 109 S. Ct. 333, 102

L.Ed.2d 281 (1988). “A clear distinction is drawn by Youngblood between materially

exculpatory evidence and potentially useful evidence. If the evidence in question is not

materially exculpatory, but only potentially useful, the defendant must show bad faith on

the part of the state in order to demonstrate a due process violation.” Geeslin at 254.

Therefore, when evidence is only potentially useful, its destruction does not violate due
process unless the police acted in bad faith when destroying the evidence. State v.

Miller, 161 Ohio App.3d 145, 2005-Ohio-2516, 829 N.E.2d 751 (2d Dist.).

       {¶23} 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

the fraud.    It also embraces actual intent to mislead or deceive another.    Durham at

¶ 13, citing State v. Smith, 2d Dist. Montgomery No. 20247, 2005-Ohio-1374, ¶ 7.

       {¶24} In Durham, this court examined a situation where an alleged criminal

incident was caught on videotape but no one viewed the videotape before it was erased.

We noted that the videotape evidence might have been inculpatory or exculpatory or a

combination of the two.          We, therefore, held that the defendant was unable to

demonstrate that the evidence was materially exculpatory, and we treated the erased video

as only potentially useful.

       {¶25} The holding in Durham, 8th Dist. Cuyahoga No. 92681, 2010-Ohio-1416,

controls in this case as well.    None of the parties viewed the video evidence prior to

Cleveland Hopkins Airport erasing or recording over the incident.    Furthermore, Officer

Zubek testified that the cameras outside the airport are not fixed on one location and, as

such, may not have recorded the incident at all. Pursuant to Durham, we cannot treat the

missing video as materially exculpatory.

       {¶26} Because the video does not qualify as materially exculpatory evidence, our

inquiry turns to whether it would be potentially useful and whether the video was
destroyed in bad faith. Although there is no question in this instance that the video

would have been potentially useful to the extent that it might have recorded all or at least a

portion of Townsend’s encounter with Officer Zubek, there is no evidence in the present

case that the video was destroyed in bad faith. Officer Zubek testified that Cleveland

Hopkins Airport retains video surveillance for 17 days before the video is either deleted

through their system or copied over digitally. Townsend did not file her motion to

preserve evidence until 38 days after the incident, well after the airport destroyed the

video.    At a hearing on this motion, the city prosecutor indicated that he had requested

the video from Cleveland Hopkins Airport and that the airport reported that no video was

available.

         {¶27} Although we find it troubling that neither the police nor the city bothered to

make an earlier effort to inquire into the existence of potential video evidence prior to

Townsend filing a motion to preserve evidence, we cannot say the facts of this case

demonstrate a dishonest purpose, moral obliquity, or conscious wrongdoing on the part of

the city such that bad faith is established. See, e.g., State v. Gatliff, 12th Dist. Clermont

No. CA2012-06-045, 2013-Ohio-2862, superceded on other grounds (finding no bad faith

where the state failed to preserve potentially useful video evidence that was destroyed by a

restaurant in the ordinary course of business).

         {¶28} Townsend’s third assignment of error is overruled.

         {¶29} The judgment of the trial court is affirmed.

         It is ordered that appellee recover of appellant costs herein taxed.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the municipal

court to carry this judgment into execution. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.
        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

MARY EILEEN KILBANE, J., CONCURS;
EILEEN A. GALLAGHER, P.J., DISSENTS (SEE ATTACHED DISSENTING
OPINION).

EILEEN A. GALLAGHER, P.J., DISSENTING:

       {¶30} I respectfully dissent from my learned colleagues.         Because I find that the

third assignment of error is dispositive of this case, it, alone, will be addressed.

       {¶31} Appellant’s third assignment of error states:

       The trial court erred, in derogation of Defendant’s right to due process of
       law, as guaranteed by the 14th Amendment to the Constitution of the United
       States, in denying Defendant’s motion to dismiss for failure to preserve
       evidence.

        {¶32} On July 10, 2012, appellant filed a motion to preserve evidence requesting

the city preserve “any and all videotapes, audiotapes, DVDs that may not have been used

in charging the defendant.” Prior to trial, appellant moved the court to dismiss the case,

arguing that the city had destroyed materially exculpatory evidence and, in the alternative,

that the city had, in bad faith, destroyed potentially useful evidence.                Appellant’s

argument concerns alleged video surveillance evidence from the Cleveland Hopkins

International Airport that potentially could have recorded appellant’s interactions with

Officer Zubek on June 2, 2012.
       {¶33} The 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, 254, 2007-Ohio-5239, 878 N.E.2d 1, citing Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).                 To be materially

exculpatory, “evidence must both possess an exculpatory value that was apparent before

the evidence was destroyed, and be of such a nature that the defendant would be unable to

obtain comparable evidence by other reasonably available means.”                 California v.

Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). “Even in the

absence of a specific request, the prosecution has a constitutional duty to turn over

exculpatory evidence that would raise a reasonable doubt about the defendant’s guilt.”

Id. at 485.

       {¶34}   Incredulously, it is the position of the city, and its witness testified, that any

cameras at the airport are not stationary, may not have recorded this incident and that such

recordings are retained for only 17 days.

       {¶35}   That position, and testimony, is beyond the pale. To suggest that the

Cleveland Hopkins International Airport, the Department of Homeland Security or the

Transportation Security Administration do not have security cameras that cover every

square inch of airport property, its ingress and egress and further, that the video recording

generated by these cameras is destroyed or taped over every 17 days is preposterous,

particularly when there has been an incident, injury and subsequent arrest.
       {¶36} Officer Zubek, who is somehow the city’s expert on these matters, failed to

secure and preserve recorded video evidence even though he was going to file criminal

charges against appellant.

       {¶37} In this case, the testimony of Officer Zubek and appellant are dichotomous

and the surveillance video would have been the only unbiased evidence as to each of the

interactions between the two.    Therefore, a video recording of this incident was vital.

However, we can never determine if the evidence was exculpatory because it allegedly

had not been retained by the city.

       {¶38} This court has previously held that the possibility that evidentiary material

could have exculpated the defendant if preserved or tested is not enough to satisfy the

standard of constitutional materiality. State v. Durham, 8th Dist. Cuyahoga No. 92681,

2010-Ohio-1416, ¶ 12, citing Arizona v. Youngblood, 488 U.S. 51, 56, 109 S.Ct. 333, 102

L.Ed. 2d 281 (1988).

       A clear distinction is drawn by Youngblood between materially exculpatory
       evidence and potentially useful evidence. If the evidence in question is not
       materially exculpatory, but only potentially useful, the defendant must show
       bad faith on the part of the state in order to demonstrate a due process
       violation.

Geeslin, 116 Ohio St.3d at 254, 2007-Ohio-5239, 878 N.E.2d 1.

       {¶39} Therefore, when evidence is only potentially useful, its destruction does not

violate due process unless the police acted in bad faith when destroying the evidence.

State v. Miller, 161 Ohio App.3d 145, 2005-Ohio-2516, 829 N.E.2d 751 (2d Dist.).
       {¶40} 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 the

fraud. It also embraces actual intent to mislead or deceive another.    Durham at ¶ 13,

citing State v. Smith, 2d Dist. Montgomery No. 20247, 2005-Ohio-1374, at ¶ 7.

       {¶41} In Durham, 8th Dist. Cuyahoga No. 92681, 2010-Ohio-1416, this court

examined a situation where an alleged criminal incident was caught on videotape but no

one viewed the videotape before it was erased.       We noted that the videotape evidence

might have been inculpatory or exculpatory or a combination of the two.    Therefore, we

held that the defendant was unable to demonstrate that the evidence was materially

exculpatory and treated the erased video as only potentially useful.

       {¶42}   The holding in Durham controls in this case as well. Allegedly, none of

the parties viewed the video evidence prior to Cleveland Hopkins Airport erasing or

recording over the incident. Pursuant to Durham, we cannot treat the missing video as

materially exculpatory.

       {¶43} Because the video does not qualify as materially exculpatory evidence, our

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

destroyed in bad faith. There is no dispute that the video qualifies as potentially useful

because it could have provided the only objective view of the events in this case.       I

further find that the video was destroyed in bad faith.
       {¶44}       “In requiring the state to provide discovery of materials that are reasonably

available to the state, Crim.R. 16(B) assumes that the state will procure possession of all

materials of which the state knows that are relevant to the object of its criminal

investigation.” State v. Ross, 2d Dist. Greene No. 2012 CA 16, 2012-Ohio-4977, ¶ 27.

That assumption flows from a due diligence obligation. Id. By allowing for discovery

of such materials, Crim.R. 16(B) also creates a due process right in the defendant to have

access to them when they are potentially useful to the defendant in preparing a defense.

Id.

       {¶45} In the present case, the arresting officer testified that he was aware of the

surveillance cameras at the airport and that he knew the exact number of days that the

airport would retain video evidence prior to its destruction. Despite this knowledge, the

law enforcement officers involved in the case willfully ignored an opportunity to secure

the best available evidence of the alleged crime.            The city cannot possibly claim

ignorance of surveillance video evidence of an incident in the middle of the roadway

outside of Cleveland Hopkins Airport’s baggage claim. Under these circumstances I

would hold that the video evidence was destroyed in bad faith and appellant’s due process

rights were violated when the city willfully chose not to secure the video evidence prior to

its destruction.
