[Cite as State v. Rivas, 121 Ohio St.3d 469, 2009-Ohio-1354.]




              THE STATE OF OHIO, APPELLANT, v. RIVAS, APPELLEE.
          [Cite as State v. Rivas, 121 Ohio St.3d 469, 2009-Ohio-1354.]
Criminal law — Discovery — Crim.R. 16(B)(1)(c) — Evidence on police
        computers — When a prosecutor has provided a written transcript that
        purports to accurately reflect data stored on a computer hard drive, a
        court may not order an examination of the computer hard drive unless the
        defense makes a prima facie showing that the state has provided false,
        incomplete, adulterated, or spoliated evidence — Judgment reversed.
 (No. 2007-1611 — Submitted September 16, 2008 — Decided March 31, 2009.)
               APPEAL from the Court of Appeals for Greene County,
              No. 05-CA-147, 172 Ohio App.3d 473, 2007-Ohio-3593.
                                  __________________
                                SYLLABUS OF THE COURT
Pursuant to a Crim.R. 16(B)(1)(c) discovery request, when a prosecutor has
        provided a written transcript that purports to accurately reflect data stored
        on a computer hard drive, a court may not order an examination of the
        computer hard drive unless the defense makes a prima facie showing that
        the state has provided false, incomplete, adulterated, or spoliated evidence.
                                  __________________
        O’DONNELL, J.
        {¶ 1} The Second District Court of Appeals reversed the judgment
convicting Jose Rivas of importuning and attempted unlawful sexual conduct with
a minor based on a trial court ruling denying him the opportunity to verify the
accuracy of discovery provided by the state by allowing his expert to examine the
state’s computer hard drive. The state of Ohio has appealed that judgment to this
court, and we agreed to address its proposition of law concerning the propriety of
                             SUPREME COURT OF OHIO




a trial court denying a motion to compel discovery of a confidential law
enforcement investigatory record absent a showing of particularized need. We
conclude that when, pursuant to a Crim.R. 16(B)(1)(c) discovery request, a
prosecutor has provided a written transcript that purports to accurately reflect data
stored on a computer hard drive, a court may not order an examination of the
computer hard drive unless the defense makes a prima facie showing that the state
has provided false, incomplete, adulterated, or spoliated evidence. Because Rivas
failed to meet that burden, the judgment of the court of appeals is reversed.
                          Facts and Procedural History
       {¶ 2} On January 3, 2005, Detective Alonzo Wilson, a member of the
Xenia Police Division’s Internet Child-Protection Unit, logged onto an Internet
chat service posing as a 14-year-old female named Molly. Jose Rivas, using the
screen name JRivas123, contacted Molly, asking for her age, gender, and
photograph. The two carried on an online conversation, and eventually Wilson e-
mailed Rivas a teenage photo of a Xenia police detective. Rivas e-mailed Molly a
picture of a male with an exposed, erect penis protruding through underwear and
led her to believe it depicted him. He then propositioned her and offered her $200
to engage in sexual activity with him. Wilson contacted Rivas the next day, and
Rivas again offered her $200 and arranged to meet her at the Holiday Inn in
Xenia. Molly advised that she had a pager, and Rivas agreed to send her a page
with his Holiday Inn room number.
       {¶ 3} After printing a transcript of the online conversations, Wilson
arranged to have a surveillance team watch the hotel. He waited in an office
behind the front desk at the Holiday Inn as Rivas checked into a room, and he
observed that the name Jose Rivas matched the suspect’s screen name, JRivas123,
in the online communications. The hotel assigned room 302 to Rivas, and soon
thereafter, Wilson received an electronic page that contained the number 302.




                                         2
                               January Term, 2009




Wilson arrested Rivas at the Holiday Inn, and subsequently, a grand jury indicted
him for importuning and attempted unlawful sexual conduct with a minor.
       {¶ 4} Prior to trial, Rivas moved to preserve the state’s electronic
evidence and sought a mirror image of the hard drive of the state’s computer used
by Wilson to communicate with him. The trial court ordered the state to allow
Rivas to inspect the computer, but the prosecution refused to allow the defense to
retrieve a mirror image of the hard drive, citing “security reasons.”           The
prosecution provided a transcript of the conversations and a compact disc
containing an electronic copy of the online communications.
       {¶ 5} Rivas moved to suppress the computer-generated evidence and to
compel the state to provide a mirror image of the computer hard drive. The trial
court denied the motion to suppress and the motion to compel, concluding that
Crim.R. 16(B)(1)(c) did not require the state to produce an exact copy of its
computer hard drive “in the absence of allegations and some evidence that what
has been provided is not accurate.” In particular, the trial court found no evidence
that the transcript of the Internet communications between Rivas and Wilson had
been “altered or compromised in any way.”          It explained that any concerns
identified by Rivas relating to altered or deleted data on the hard drive were
relieved by the fact that rebooting and using the same computer for different cases
would not have affected the accuracy or integrity of the transcript because
Detective Wilson had printed the hard copy of the chats immediately following
those sessions. The trial court further noted that Rivas had destroyed his own
hard drive, which would have allowed him to verify the accuracy of the discovery
provided by the state.
       {¶ 6} At trial, Rivas alleged that the transcript did not accurately reflect
his Internet communications with Wilson. He asserted that he had communicated
with a 41-year-old woman, not a 14-year-old girl, and denied receiving a
photograph of a 14-year-old girl during the online exchanges. His contention is




                                         3
                            SUPREME COURT OF OHIO




belied by the fact that there were several references in the transcript to doing
homework, her supervision by her grandmother, the fact that she had to be home
by a certain hour, and his assent that she would be able to comply with that time
deadline. Rivas challenged the accuracy of some of the statements appearing in
the transcript.   The jury found Rivas guilty of importuning and attempted
unlawful sexual conduct with a minor.
       {¶ 7} The court of appeals reversed both convictions, holding that the
trial court had violated Rivas’s right to a fair trial when it refused Rivas the
opportunity to verify the accuracy and completeness of the computer transcripts
prepared by the state, stating that “a defendant should not be required to take the
word of the adverse party * * * that a transcript of information stored on a hard
drive is accurate * * *.” State v. Rivas, 172 Ohio App.3d 473, 2007-Ohio-3593,
875 N.E.2d 655, at ¶ 15. The appellate court concluded that the trial court could
have upheld the state’s need to safeguard the confidentiality of information stored
on the computer while protecting Rivas’s right to a fair trial by conducting its own
in camera inspection of the hard drive. Id. at ¶ 17. The cause is before the court
upon our acceptance of the state’s appeal. State v. Rivas, 116 Ohio St.3d 1455,
2007-Ohio-6803, 878 N.E.2d 33.
                               Proposition of Law
       {¶ 8} On appeal to this court, the state contends that the trial court
properly denied Rivas’s motion to compel discovery because the hard drive
contained confidential law enforcement investigatory records protected from
disclosure under the Public Records Act in R.C. 149.43(A)(1)(h). According to
the state, Rivas also failed to meet his burden to show that the discovery provided
by the state was incomplete or otherwise inaccurate, and therefore Crim.R. 16(B)
did not require an inspection of the computer’s hard drive.
       {¶ 9} Rivas maintains that R.C. 149.43(A)(1)(h) relates to public records
requests and does not protect police records from discovery in the course of




                                         4
                                January Term, 2009




litigation. He urges that the plain language of Crim.R. 16(B)(1)(c) permits him to
inspect and copy the hard drive, explaining that the rule requires discovery of
tangible evidence that is material to the preparation of his defense. Further, Rivas
asserts that the hard drive is material evidence because his expert’s testimony
established specific concerns regarding the accuracy of the transcripts that
represented the communications between Wilson and Rivas.
       {¶ 10} We are called upon to consider whether, in a case in which the
prosecutor has complied with its duty to provide discovery by delivering a
transcript of evidence from the hard drive of a police computer, the accused has a
right to obtain a mirror image of the computer hard drive without making a prima
facie showing that the information in the transcript is false, incomplete,
adulterated, or spoliated.
                                Law and Analysis
       {¶ 11} Crim.R. 16(B)(1)(c) governs the disclosure of documents and
tangible evidence by a prosecuting attorney: “Upon motion of the defendant the
court shall order the prosecuting attorney to permit the defendant to inspect and
copy or photograph books, papers, documents, photographs, tangible objects,
buildings or places, or copies or portions thereof, available to or within the
possession, custody or control of the state, and which are material to the
preparation of his defense, or are intended for use by the prosecuting attorney as
evidence at the trial, or were obtained from or belong to the defendant.” Thus, as
relevant to this case, Crim.R. 16(B)(1)(c) permits the accused to inspect tangible
evidence that is material to the preparation of his defense.
       {¶ 12} The question of which party bears the burden of going forward
with evidence when the accused seeks to verify the discovery provided by the
state pursuant to Crim.R. 16(B)(1)(c) appears to be one of first impression in this
court. However, in Chillicothe v. Knight (1992), 75 Ohio App.3d 544, 550, 599
N.E.2d 871, the court held that it is the accused who bears the initial burden of




                                          5
                             SUPREME COURT OF OHIO




establishing a prima facie case of materiality before Crim.R. 16(B) requires the
state to turn over tangible evidence.
       {¶ 13} Further, Rule 16(a)(1)(E) of the current Federal Rules of Criminal
Procedure, which is analogous to Crim.R. 16(B)(1)(c), requires that “the
defendant show[ ] that disclosure of the document or tangible object is material to
the defense” before it requires the government to produce tangible evidence in its
possession. Fed.R.Crim.P. 16 Advisory Committee Note on the 1974
Amendment.      Federal courts interpreting Fed.R.Crim.P. 16(a)(1)(E) and its
predecessor provision, Fed.R.Crim.P. 16(a)(1)(C), Advisory Committee Notes on
the 2002 Amendments, have held that the accused bears the burden of making a
prima facie showing of entitlement to the materials sought in discovery before the
rule requires the government to produce them. “ ‘To obtain discovery under Rule
16, a defendant must make a prima facie showing of materiality.’ ” United States
v. Zone (C.A.9, 2005), 403 F.3d 1101, 1107, quoting United States v. Mandel
(C.A.9, 1990), 914 F.2d 1215, 1219; United States v. Thompson (C.A.7, 1991),
944 F.2d 1331, 1341 (“To successfully press a claim that the government violated
[Fed.R.Crim.P. 16(a)(1)(C)], the defendant must make at least a prima facie
showing that the requested items are material to his defense”); United States v.
Carrasquillo-Plaza (C.A.1, 1989), 873 F.2d 10, 12 (“defendant did not make a
request, together with ‘a prima facie showing of materiality,’ for the statements as
required under [Fed.R.Crim.P 16(a)(1)(C)]”); United States v. Buckley (C.A.5,
1978), 586 F.2d 498, 506 (“Contrary to Buckley's assertion that Rule 16(a)(1)(C)
‘mandate(s) the production of such documents upon request,’ it is incumbent upon
a defendant to make a Prima facie showing of ‘materiality’ in order to obtain
discovery”).
       {¶ 14} Moreover, in other situations in which the accused asserts that the
government withheld or destroyed evidence, this court has held that the accused
bears the burden of establishing his case. The defendant bears the burden of




                                         6
                                 January Term, 2009




showing that the state acted in bad faith in destroying potentially useful evidence,
State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, at ¶ 14, and
of showing that the state withheld favorable and material evidence. State v.
Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, at ¶ 338-339. Mere
speculation does not meet the accused’s burden to show that the withheld
evidence is material. Id. at ¶ 339; State v. Jackson (1991), 57 Ohio St.3d 29, 33,
565 N.E.2d 549, quoting United States v. Agurs (1976), 427 U.S. 97, 109-110, 96
S.Ct. 2392, 49 L.Ed.2d 342 (“ ‘The mere possibility that an item of undisclosed
information might have helped the defense, or might have affected the outcome of
the trial, does not establish ‘materiality’ in the constitutional sense’ ”).
        {¶ 15} Similarly, to show spoliation of evidence, the “proponent must first
establish that (1) the evidence is relevant, (2) the offending party's expert had an
opportunity to examine the unaltered evidence, and (3) even though the offending
party was put on notice of impending litigation, this evidence was intentionally or
negligently destroyed or altered without providing an opportunity for inspection
by the proponent.” Simeone v. Girard City Bd. of Edn., 171 Ohio App.3d 633,
2007-Ohio-1775, 872 N.E.2d 344, at ¶ 69. The burden of proof falls on the party
alleging spoliation.
        {¶ 16} Thus, pursuant to a Crim.R. 16(B)(1)(c) discovery request, when a
prosecutor has provided a written transcript that purports to accurately reflect data
stored on a computer hard drive, a court may not order an examination of the
computer hard drive unless the defense makes a prima facie showing that the state
has provided false, incomplete, adulterated, or spoliated evidence.
        {¶ 17} Rivas presented no evidence that the state refused to produce
material evidence or that it provided him with false, incomplete, adulterated, or
spoliated evidence. Although he makes much of the fact that Wilson continued to
use the computer after his arrest and that rebooting a computer changes the data in
thousands of files used to start up a computer system, Rivas failed to demonstrate




                                           7
                             SUPREME COURT OF OHIO




that rebooting a computer would alter the content of the e-mails or files at issue
here. Further, even his own expert agreed that “if the officer testified that he
reviewed these chats, that they were obviously on his computer screen, he
reviewed them immediately after and they do represent an accurate replication of
those conversations,” continuing to use and reboot the computer would not have
affected the accuracy and integrity of the hard copy of the communications
produced by the state in its discovery. Rather than specifically testifying that any
evidence had in fact been altered, Rivas’s expert explained that he could establish
the falsification of the state’s discovery – assuming any falsification had actually
occurred – only by examining the hard drive of the state’s computer. However,
speculation and conjecture regarding the possibility of material evidence
appearing on the hard drive do not demonstrate any inaccuracy in the discovery
that the state provided so as to entitle Rivas to inspect the hard drive and verify
the accuracy of the transcript. Cf. United States v. Persico (E.D.N.Y.2006), 447
F.Supp.2d 213, 217 (“Basing discovery requests on nothing more than mere
conjecture renders any request for information outside the ambit of Rule 16 a non-
starter”). Persico involved a similar factual situation, as the discovery sought
included “electronic surveillance recordings and reports, physical surveillance
reports and photographs, the names of certain confidential sources with related
reports and law enforcement notes, and various telephone toll records, pen
register and pager information,” and the defendants contended that only they
could discern the existence of impeachment or exculpatory evidence within these
materials. Id. at 217-218. Noting the government’s representations that it had
complied with its discovery obligations, the court explained that “the mere claim
that the items sought are ‘material’ is not enough.” Id.
       {¶ 18} Ultimately, this is not a case about false or incomplete discovery or
a case involving the denial of due process or the violation of Crim.R. 16(B).
Here, the state has fully complied with and provided all the discovery required by




                                         8
                                   January Term, 2009




Crim.R. 16(B). However, based on the speculation of an expert witness and
Rivas’s unsupported assertion that the transcript has been altered, the court of
appeals concluded that Rivas had a right to verify the discovery provided by the
state.   The appellate court’s decision makes the wrong presumption about
discovery. The presumption should be that counsel comply with our rules of
discovery. Presuming the state’s lack of compliance with discovery based on an
assertion by an opposing party, and ordering the state to verify its discovery on
such an assertion, sends the wrong message to the legal community and does not
represent the law of this state.
                                      Conclusion
         {¶ 19} In this case, after having received a written transcript purporting to
reflect a series of chat-room conversations from the hard drive of a police
computer and a compact disc containing an electronic version of files from that
hard drive, Rivas asserted a right to verify the accuracy and completeness of the
discovery with which he had been provided by obtaining a mirror image of the
computer hard drive.
         {¶ 20} However, Rivas failed to provide any evidence to support his
allegation that what had been provided to him during the course of discovery
lacked accuracy, authenticity, or completeness, and he destroyed or discarded his
own computer hard drive, which would have given him the ability to make a
prima facie showing that the state had provided false, incomplete, adulterated, or
spoliated evidence. Where a party has received discovery pursuant to Crim.R.
16(B)(1)(c), a trial court will not order production of a mirror image of a
computer hard drive without a prima face showing that false, incomplete,
adulterated, or spoliated evidence has been provided. Here, Rivas submitted a
motion to compel discovery that lacked a sufficient evidentiary basis, and he has
therefore failed to satisfy his burden of proof.




                                           9
                            SUPREME COURT OF OHIO




       {¶ 21} Because the state has provided a printed copy of the transcript of
the conversations in this instance, and because Rivas has failed to meet his burden
of proof to show that the state has provided false, incomplete, adulterated, or
spoliated evidence, the state has complied with its obligations pursuant to Crim.R.
16(B)(1)(c), and access to a mirror image of the hard drive of the police computer
is not material to the preparation of the defense.      We therefore reverse the
judgment of the court of appeals.
                                                               Judgment reversed.
       LUNDBERG STRATTON, O’CONNOR, and LANZINGER, JJ., concur.
       MOYER, C.J., and PFEIFER and CUPP, JJ., dissent.
                               __________________
       CUPP, J., dissenting.
       {¶ 22} Because the majority’s holding contrasts with the plain language of
Crim.R. 16(B)(1)(c) and because appropriate mechanisms otherwise exist within
the Criminal Rules to safeguard from disclosure information not relevant to the
defendant’s defense, I must respectfully dissent.
       {¶ 23} There is no requirement in the discovery provisions of the Criminal
Rules that a defendant who wishes to verify the accuracy of the printed version of
electronic data stored on a state’s computer hard drive must first make a prima
facie showing that the state provided false, incomplete, adulterated, or spoliated
evidence. Although defendant’s basis for asserting a discrepancy between the
printed version of the data and the version that resides on the computer hard drive
may seem unusual, there is no justification for creating, as the majority opinion
does, a permanent judicial gloss over the plain language of the discovery rules to
short-circuit defendant’s discovery request. Moreover, imposing such a standard
ignores the plain language of the rule by imposing obligations on the defendant
beyond the rule’s “materiality” standard.




                                        10
                                     January Term, 2009




        {¶ 24} The only limitations in Crim.R. 16(B)(1)(c) are that evidentiary
materials must be in the state’s possession and must be (1) material to the
preparation of defense, (2) intended for use by the prosecuting attorney as
evidence at the trial, or (3) obtained from or owned by the defendant.1 In this
case, the computer hard drive was in the state’s possession and was material to
defendant’s defense theory. Further, the prosecutor intended to use, in printed
form, the data contained on the hard drive as part of the state’s evidence. Crim.R.
16(B)(1)(c). In contrast to the majority’s holding, nothing in the text of Crim.R.
16(B)(1)(c) requires a defendant to demonstrate any threshold indicia of
unreliability of the challenged evidence in the state’s custody. The trial court
should have ordered the state to produce the hard drive for the defendant’s
inspection or copying. As the appellate court recognized, “forcing a litigant to
rely upon an adverse party’s representation that a transcript” is accurate without
allowing any verification of that accuracy is inconsistent with general notions of a
fair trial. State v. Rivas, 172 Ohio App.3d 473, 2007-Ohio-3593, 875 N.E.2d 655,
¶ 2.
        {¶ 25} Notwithstanding, the state has legitimate reason to prevent
defendant’s unrestricted access to the data on the computer hard drive. According
to the state, the computer hard drive that contains the data sought by defendant
also contains data that pertain to investigations not related to defendant. Simply
because a defendant is allowed to inspect and copy the evidence under Crim.R. 16
does not mean that his access to the evidence must be free of all restrictions.


1. The initial obligation to demonstrate that the requested disclosure of a document or tangible
object is material to the preparation of a defense has always been placed on the defendant. See,
e.g., Crim.R. 16(B)(1)(c) (“Upon motion of the defendant [a court shall permit discovery of
documents and tangible items] which are material to the preparation of his defense * * * ”); State
ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 435, 639 N.E.2d 83 (quoting the rule);
United States v. Rhoads (C.A.8, 1980), 617 F.2d 1313, 1319 (concluding that a defendant failed to
demonstrate the manner in which the desired materials were "material to the preparation" of the
defense under former Fed.R.Crim.P. 16(a)(1)(C)).




                                               11
                             SUPREME COURT OF OHIO




Therefore, the defendant’s access should be limited to prevent the disclosure of
information pertaining to these other matters.
       {¶ 26} The methods by which a court may limit a defendant’s access to
only the information needed for his defense are delineated in Crim.R. 16(E)(1)
and (2): the use of protective orders and restrictions on the time, place, and
manner of the inspection and copying of evidence. There has been no showing
that the trial court in this instance could not have allowed Rivas access to the
state’s computer hard drive as required by Crim.R. 16(B)(1)(c) while
simultaneously protecting the state’s interest in not disclosing information
pertaining to other investigations through the use of a protective order under
Crim.R. 16(E).    Indeed, the trial court’s initial discovery order allowing for
inspection had, in fact, contained the caveat that computer hardware would be
inspected, printed, copied, or photographed only in the presence of and under the
control of the Xenia Police Department.
       {¶ 27} Although the exact form of protective measure – whether by in
camera inspection, examination by a third-party expert, or any other means – is a
decision best left to the sound discretion of the trial court examining the evidence
and facts before it, the fact remains that such a safeguard exists within Crim.R.
16. Rather than improvising a standard that is unsupported by the plain language
of the criminal rule and likely to have unforeseen consequences, we should hold
that the safeguards specifically contemplated by the rule should be used to prevent
disclosure of information not relevant to a defendant’s defense.
       {¶ 28} I must respectfully dissent.
       MOYER, C.J., and PFEIFER, J., concur in the foregoing opinion.
                              __________________
       Stephen K. Haller, Greene County Prosecuting Attorney, and Elizabeth A.
Ellis, Assistant Prosecuting Attorney, for appellant.




                                          12
                           January Term, 2009




       Law Office of Marc Mezibov, Marc D. Mezibov, and Stacy A. Hinners,
for appellee.
                        ______________________




                                   13
