[Cite as State v. Franchi, 2016-Ohio-1195.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

STATE OF OHIO 

 Appellant 

 v. 

RITZI C. FRANCHI 

 Appellee 

C.A. No. 27797 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CR 2014 08 2512 

DECISION AND JOURNAL ENTRY 

Dated: March 23, 2016 

 

HENSAL, Presiding Judge. 

{¶1} The State of Ohio appeals a journal entry of the Summit County Court of 

Common Pleas that granted Ritzi Franchi’s motion to dismiss the indictment. For the following 

reasons, this Court reverses. 

I. 

{¶2} On August 18, 2014, Akron Police Officer Natalie Tassone stopped Mr. Franchi 

after she noticed that his vehicle did not have a windshield and that he failed to use his turn 

signal. According to Officer Tassone, shortly after she approached, Mr. Franchi gave her 

permission to search his vehicle. During the search, she found a bag with cocaine. The Grand 

Jury subsequently indicted Mr. Franchi for possession of cocaine. 

{¶3} Mr. Franchi moved to suppress the evidence Officer Tassone found during the 

search. At a hearing on his motion, Mr. Franchi denied that he gave her permission to search his 

vehicle, testifying that she never even asked. Officer Tassone explained that, although her 
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cruiser’s audio and video recording equipment was activated during the stop, the hard drive that 

contained the recording of the stop had been recorded over by the time of the hearing. 

Accordingly, there was no independent evidence to establish whether Mr. Franchi consented to 

the search. The court found that Mr. Franchi voluntarily consented to the search, and it denied 

his motion to suppress. 

{¶4} After the hearing, Mr. Franchi moved to dismiss the indictment, alleging that the 

State withheld or spoiled evidence. At a hearing on his motion, Mr. Franchi noted that he made 

a request for discovery before the hard drive containing the audio and video of his stop was 

erased. Upon review of the motion, the trial court explained that, because the State failed in its 

duty to preserve the evidence and the evidence was not obtainable by other means, it would place 

the onus on the State to show that the recording did not contain materially exculpatory evidence. 

Because the State could not demonstrate that the recording did not contain such evidence, the 

court concluded that the destruction of the recording violated Mr. Franchi’s due process rights. 

Consequently, it explained that it had to credit Mr. Franchi’s account of the traffic stop.1

 Upon 

reconsideration of the evidence, it concluded that the State failed to establish that Mr. Franchi 

voluntarily consented to the search of his vehicle. It, therefore, granted Mr. Franchi’s motion to 

dismiss. The State has appealed, assigning as error that the trial court erred when it reconsidered 

the motion to suppress and dismissed the indictment. 

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 Instead of simply imposing a sanction for the alleged due process violation, it appears 

that the trial court may have proceeded to reconsider its ruling on Mr. Franchi’s motion to 

suppress. The court dismissed the indictment after finding that Mr. Franchi did not consent to 

the search of his vehicle. The State has not contested the method by which the court arrived at 

its ultimate decision. 
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ASSIGNMENT OF ERROR 

THE COURT ERRED IN RECONSIDERING THE MOTION TO SUPPRESS 

AND DISMISSING THE INDICTMENT. 

{¶5} The State argues that the trial court misapplied the law when it presumed that the 

hard drive contained material exculpatory evidence. We review the trial court’s decision on a 

pre-trial motion to dismiss de novo. State v. Saxon, 9th Dist. Lorain No. 09CA009560, 2009-

Ohio-6905, ¶ 5. 

{¶6} If “the prosecution withholds material, exculpatory evidence in a criminal 

proceeding, it violates the due process right of the defendant * * * to a fair trial.” State v. 

Johnston, 39 Ohio St.3d 48, 60 (1988). If it is not clear whether the evidence that the State failed 

to preserve could have exonerated the defendant, however, the defendant “must show bad faith 

on the part of the state in order to demonstrate a due process violation.” State v. Geeslin, 116 

Ohio St.3d 252, 2007-Ohio-5239, ¶ 10. The Ohio Supreme Court has held that, if the missing 

evidence would not “challenge the substance of the allegations[,]” it “could not have been 

materially exculpatory evidence * * *.” Id. at ¶ 13. In Geeslin, the Supreme Court held that, 

because the evidence contained on a missing videotape would only have been used “to refute [a 

state trooper’s] stated reasons for stopping” the defendant and not “for the purpose of 

establishing [his] guilt or innocence[,]” the defendant had to demonstrate that the state acted in 

bad faith when it lost the tape. Id. at ¶ 12, 14. 

{¶7} In this case, Officer Tassone inadvertently recorded over the conversation that 

she had with Mr. Franchi before she searched his vehicle. The recording may have established 

that Mr. Franchi did not give her permission to search his car. It is not alleged that the recording 

would have contained evidence regarding whether he was in possession of cocaine. We, 

therefore, conclude that the trial court incorrectly found that the tape contained material 
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exculpatory evidence. Geeslin at ¶ 14. Unlike in State v. Benton, 136 Ohio App.3d 801 (6th 

Dist.2000), which the trial court relied on, the tape at issue in this case could not have contained 

materially exculpatory evidence. Compare id. at 804, 806 (explaining that tape would have 

contained evidence relating to DUI charge); State v. Benson, 152 Ohio App.3d 495, 2003-Ohio1944, ¶ 12 (1st Dist.) (same). 

{¶8} Because the recording of the traffic stop could not have contained material 

exculpatory evidence, it was Mr. Franchi’s burden to establish that the State acted in bad faith 

when it deleted or recorded over it. The trial court specifically found that it had “not found any 

bad faith in this case by the Akron Police Department.” Accordingly, we conclude that the trial 

court incorrectly held that the State violated Mr. Franchi’s due process rights. The State’s 

assignment of error is sustained. 

III. 

{¶9} Because the missing recording would not have contained material exculpatory 

evidence, the trial court erred when it placed the burden on the State to demonstrate that the 

recording did not contain such evidence. The judgment of the Summit County Court of 

Common Pleas is reversed, and this matter is remanded for further proceedings. 

Judgment reversed, 

and cause remanded. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 
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 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellee. 

 

 JENNIFER HENSAL 

 FOR THE COURT 

CARR, J. 

SCHAFER, J. 

CONCUR. 

APPEARANCES: 

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant 

Prosecuting Attorney, for Appellant. 

KANI HARVEY HIGHTOWER, Attorney at Law, for Appellee.