[Cite as State v. Williams , 2016-Ohio-8123.]

Criminal Appeals From: Hamilton County Municipal Court Judgments Appealed From Are: Reversed and Cause Remanded Date of Judgment Entry on Appeal: December 14, 2016

Paula Boggs Muething , Cincinnati City Solicitor, Natalia Harris , City Prosecutor, and Heidi Rosales , Senior Assistant City Prosecutor, for Plaintiff-Appellant, Raymont T. Faller , Hamilton County Public Defender, and David Hoffman

, Assistant Public Defender, for Defendant-Appellee. 

### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, Plaintiff-Appellant,

vs. SHAHIVA WILLIAMS, Defendant-Appellee. :

:

:

:

: APPEAL NOS. C-160196 C-160197 TRIAL NOS. 15CRB-12023A 15CRB-12023B

O P I N I O N.O HIO F IRST D ISTRICT C OURT OF A PPEALS

2 C UNNINGHAM , Judge. 

### {¶1} Plaintiff-appellant state of Ohio appeals from the decision of the Hamilton County Municipal Court dism issing two charges against defendantappellee Shahiva Williams as a sanction for the state’s failure to provide discovery. Because the trial court failed to consider the appropriate factors before selecting the harsh sanction of dismissal, the court abused its discretion. We reverse. 

### {¶2} On May 13, 2015, Williams was arrested and charged with obstructing official business under R.C. 2921.31 and carrying a concealed weapon under R.C. 2923.12. On July 29, 2013, she filed a demand for discovery asking for, among other things: [A]ll video recordings, with audio if applicable, whether related to the

initial encounter betw een the defendant and the police or to defendant’s subsequent transport or processing at the police station as well as any audio radio transmission prior, to, during and after the stop of the [d]efendant. 

### {¶3} The Cincinnati Police Department had a standard practice to turn on the video in the police cruiser when tran sporting an arrested person to jail. Williams’s discovery demand was filed before a 90-day retention period for transport video had expired. Nevertheless, the state’s written response to Williams’s discovery demand did not include police cr uiser video or audio recordings. 

### {¶4} Subsequently, Williams filed a motion to suppress in which she alleged that during her transport to ja il, she had admitted to possessing brass knuckles without first having b een advised of her rights under Miranda v. Arizona

, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). She also filed a motion to compel discovery, which included a request for the May 13, 2015 transport video.O HIO F IRST D ISTRICT C OURT OF A PPEALS

3 The trial court found that th e video was “requested appropriately” and granted the motion to compel, with the un derstanding that the video was no longer available. At a later hearing on sanctions, the court conc luded that the state had acted in bad faith by failing to provide the video, and dismissed both charges. 

### {¶5} In its sole assignment of error, the state contends that the trial court erred in dismissing the charges. It argues th at the trial court abus ed its discretion in imposing the most severe sanction without weighing the proper factors and that the

record is not sufficient to determine wh ether Williams’s due-process rights were violated. This assignment is well taken. 

### {¶6} The state’s failure to preserve materially exculpatory evidence violates a defendant’s right to due process. California v. Trombetta , 467 U.S. 479, 488-489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); State v. Brewster , 1st Dist. Hamilton Nos. C030024 and C-003025, 2004-Ohio-2993, ¶ 41. Evidence is materially exculpatory where the evidence possesses an exculpatory value that is apparent before the evidence is destroyed, and it is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Trombetta at 488-489;

Brewster at ¶ 41. 

### {¶7} Generally, the defendant bears the burden to show that lost or destroyed evidence is mate rially exculpatory. State v. Anderson , 1st Dist. Hamilton No. C-050382, 2006-Ohio-1568, ¶ 22; State v. Acosta , 1st Dist. Hamilton Nos. C020767, C-020768, C-020769, C-020770 an d C-020771, 2003-Ohio-6503, ¶ 5. But because Williams specifically requested the disclosure of all video recordings including those related to the transporting of the defendant, the burden shifted to the

state to show that the evid ence was not exculpatory. State v. Fox , 4th Dist. Ross No. 11CA3302, 2012-Ohio-4805, ¶ 26; Anderson at ¶ 22; Acosta at ¶ 6-7. Under theO HIO F IRST D ISTRICT C OURT OF A PPEALS

4 circumstances, she was not required to file a separate motion to preserve the video, as the state argues. 

### {¶8} The record shows that the videotape was not exculpatory. To the contrary, it was inculpatory. The record shows, and Williams acknowledged, that she

made a statement to the tran sporting officer to the effe ct that she was carrying a concealed weapon. To be materially exculpatory, the missing evidence must allow the defendant to challenge the substa nce of the charge against her. State v. Geeslin

, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 13; Fox at ¶ 28-32. 

### {¶9} Nevertheless, the videotape may have contained potentially useful evidence. The state’s failure to preserve potentially useful, but not materially exculpatory, evidence violates a defendant’s due-process rights if the police or the prosecution acted in bad faith. Geeslin at ¶ 10; Brewster , 1st Dist. Hamilton Nos. C030024 and C-030025, 2004-Ohio-2993, at ¶ 44. 

### {¶10} In this case, the trial court specific ally found that the state acted in bad faith, and the record supports that dete rmination. Williams filed her discovery request 14 days before the expiration of th e 90-day retention peri od for the transport video. The administrative supervisor fo r the Cincinnati Police records section testified that she could respond to a subp oena request for the video in about one week. The state’s response, which was not filed until after the 90-day retention period had expired, contained no mention of the video. The state eventually conceded that it had a duty to disclose th e video and could offer no explanation or justification for the failure to preserve it. The trial court’s finding of bad faith was amply supported in this record. 

### {¶11} A trial court has broad discretio n in determining a sanction for a discovery violation. State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 33; State v. Simmons , 2014-Ohio-3695, 19 N.E.3d 517, ¶ 41 (1st Dist.).O HIO F IRST D ISTRICT C OURT OF A PPEALS

5 Nevertheless, the trial court must consider several factors before imposing a discovery sanction. These factors include: (1) whether the failure to disclose was a willful violation of Crim.R. 16; (2) whether foreknowledge of the undisclosed material could have benefited the accused in the preparation of a defense; and (3) whether the accused was prejudiced. Darmond at ¶ 35-36; Simmons at ¶ 42. The court “must impose the least severe sanction that is consistent with the rules of discovery.” Darmond at syllabus, quoting Lakewood v. Papadelis , 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), paragraph two of the syllabus. 

### {¶12} In this case, the record does not demonstrate that the court considered the proper factors before imposing the harshest sanction possible, dismissal of the charges. On that basis alon e, we hold that the trial court abused its discretion in dismissing the charges against Williams. See Darmond at ¶ 42. Thus, we sustain the state’s assignment of error. 

### {¶13} We reverse the trial court’s judgments dismissing the charges, and remand the cause for the court to consider the proper factors and then impose any appropriate sanction, including dismissal, consistent with this opinion and law. Judgments reversed and cause remanded.

H ENDON , P.J., and M OCK , J., concur.

Please note: The court has recorded its own entry this date.