[Cite as State v. Napier , 2020-Ohio-5457.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, Appellant,

- vs -

JAMES E. NAPIER, Appellee. :

:

:

:

:

: CASE NO. CA2020-03-038

O P I N I O N

11/30/2020

CRIMINAL APPEAL FROM BUTLER C OUNTY COURT OF COMMON PLEAS Case No. CR2010-08-1378

Schiavone Law Office, Frank J. Schiavone, IV, 2 South Third Str eet, Suite 300, Hamilton, Ohio 45011, for appellee Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45 011, for appellant

S. POWELL, J. {¶ 1} Appellant, the state of Ohio, appeals the decision of the Butle r County Court of Common Pleas granting the motion to dismiss filed by appelle e, James E. Napier. For the reasons outlined below, we reverse the trial court's decisi on and remand this matter to the trial court for further proceedings.Butler CA2020-03-038

- 2 - {¶ 2} On October 13, 2010, the Butler County Grand Jury returned an i ndictment charging Napier with illegal manufacturing of drugs in violatio n of R.C. 2925.04, a seconddegree felony, illegal assembly or possession of chemicals for the manufacture of drugs in violation of R.C. 2925.051, a third-degree felony, and aggravat ed possession of drugs in violation of R.C. 2925.11, also a third-degree felony. The cha rges arose after it was alleged Deputy William Brown with the Butler County Sheriff's Office di scovered Napier in possession of methamphetamine, and items used in the manufactur e of methamphetamine, at approximately 4:50 a.m. on the morning of July 3, 2010 at th e buildings located at 2617 and 2613 Tylersville Road, Fairfield Township, Butler County, O hio. The items Deputy Brown discovered included aluminum foil, lighter fluid, camping fuel, coffee filters, several mason jars containing certain unidentified liquids, and a subst ance that tests conducted by the Hamilton County Crime Lab determined was 4.96 grams of meth amphetamine. Napier pled not guilty to the charges and was thereafter released on a $30,000 surety bond. {¶ 3} On January 27, 2011, Napier filed a motion to suppress. In sup port of his motion, Napier alleged that he was subject to an unlawful searc h and seizure of his person and property by Deputy Brown on the morning of July 3, 2010. N apier also alleged that the incriminating statements he made to Deputy Brown that morning s hould be suppressed because he made the statements during a custodial interrogation without first being advised

of his Miranda rights. The trial court held a hearing on Napier's motion on February 22, 2011. During this hearing, the trial court heard testimony fro m one witness, Deputy Brown. {¶ 4} Deputy Brown testified that he made contact with Napier at appr oximately 4:50 a.m. on the morning of July 3, 2010 after he noticed Napie r outside a Tylersville Road gas station crouched down outside the gas station between the i ce machine and propane gas exchange site "with flashlights and a flashlight [mounted] on his forehead." Believing something could be amiss, Deputy Brown testified that he pulled his cruiser into the gasButler CA2020-03-038

- 3 - station parking lot and directed the cruiser's headlights at Na pier. Deputy Brown testified that he then witnessed Napier immediately stand up and begin "m oving quickly" towards the buildings located next door at 2617 and 2613 Tylersville Ro ad. Deputy Brown testified that he also saw an orange extension cord plugged into one of t he gas station's outside electrical outlets running from the gas station to the building s located next door. Deputy Brown testified that the buildings located next door were at on e time a used car lot, but were now, as far as he could tell, "vacant, abandoned." {¶ 5} Deputy Brown testified that Napier was dressed in dark clothing and appeared "extremely nervous." After parking his cruiser, Deputy Brown t estified that he then exited the vehicle, approached Napier, and asked Napier what he was do ing outside the gas station. To this, Deputy Brown testified that Napier told him he was "charging his cell phone." Deputy Brown testified that Napier then provided him w ith an identification card

from Indiana and told him that he "owned the business next door and that the owner of the gas station let him use the electricity because his building di dn't have any." Deputy Brown testified that an officer from the Fairfield Township Police De partment then arrived on the scene to provide backup. Once this officer arrived, Deputy Bro wn testified that he began following the orange extension cord through the gas station's p arking lot towards the buildings located next door. {¶ 6} Deputy Brown testified the orange extension cord took him appro ximately 250 to 300 feet across the gas station parking lot to an open doorw ay entering into the buildings located at 2617 and 2613 Tylersville Road. Once there, Deputy Brown testified that he saw in plain view a duffle bag "laying in the doorway that was layi ng open" that contained "some aluminum foil, some can (sic) of butane gas and the coffee filt ers." Deputy Brown testified that he observed these items before he walked through the door while he was "standing in the doorway." Deputy Brown testified that seeing these items r aised his suspicions due toButler CA2020-03-038

- 4 - his "[p]rior experience with the manufacture of methamphetamine " where the "same type of materials" were being used to manufacture methamphetamine. Upo n seeing these items, Deputy Brown testified that he then continued inside the buildi ngs to look for other possible suspects. {¶ 7} Once inside, Deputy Brown testified that he observed two mason jars in a back office that "had a clear liquid in it and a white substanc e laying on the bottom of the liquid * * *." Deputy Brown testified that he also observed "w hite powder" on a piece of aluminum foil in close proximity to the two mason jars, as well as a "methamphetamine pipe laying on the desk that was inside that office." Deputy Brown testified that the door to that office was open when he initially entered the buildings and tha t the office had candles burning inside. Deputy Brown testified that the discovery of t he two mason jars raised his suspicions even further based on his experience with a "prior m eth lab" that had the "same type of objects, exactly similar to these circumstances." Depu ty Brown testified that the discovery of these items was consistent with what he had observ ed during his 13-year career as a law enforcement officer with regard to the manufact ure of methamphetamine. {¶ 8} Explaining what happened next, Deputy Brown testified: After clearing the building[s] and finding nobody inside, I returned out to Mr. Napier who was still with the Fairfield Township officer. I had asked him what was in the mason jars, he stated it was probably water. I then asked him what the whi te substance was in the bottom of the water, that's when he said that he was going to be honest, that he had a problem and it was meth.

* * * After that, you know, [I] continued speaking with him briefly, that's when [Napier] advised me that he had just gotten arreste d over in Indiana for meth, and continued speaking, and that's when I called the drug vice unit. {¶ 9} Following Deputy Brown's testimony, and after considering the a rgumentsButler CA2020-03-038

- 5 - advanced by both parties, the trial court issued its decision f rom the bench denying Napier's motion to suppress. In so holding, the trial court found exige nt circumstances existed to allow Deputy Brown to enter the buildings located at 2617 and 2 613 Tylersville Road after he observed in plain view an open duffle bag that Deputy Brown knew based on his training and experience as a veteran law enforcement officer contained i tems commonly associated with the manufacture of methamphetamine. The trial court also found the incriminating statements Napier made to Deputy Brown were not subject to the exclusionary rule since Napier was not in custody at the time he made the statements. {¶ 10} On March 14, 2011, the trial court revoked Napier's bond and is sued a warrant for Napier's arrest after he failed to appear before the trial court for a pretrial hearing. Ten days later, on March 24, 2011, the trial court released Napier back on bond after reinstating the $30,000 surety bond Napier had originally posted after he e ntered his not guilty plea. After releasing Napier back on bond, the trial court then sched uled the matter for a trial to begin on May 23, 2011. Napier did not appear for trial as sche duled. When Napier failed to appear, the trial court revoked Napier's bond for a second t ime and issued another warrant for Napier's arrest. {¶ 11} Approximately eight years later, on April 19, 2019, Napier was arrested on the trial court's outstanding bench warrant. Following Napier's ar rest, the trial court held a hearing and set Napier's bond at $250,000. The next month, on May 16, 2019, the trial court held another hearing and scheduled the matter for a trial to begin on July 29, 2019. However, prior to trial, the trial court determined that Napier was no longer competent to stand trial. Approximately five months later, on December 11, 2019, the trial court issued a decision finding Napier had regained his competency to stand tr ial. The trial court then rescheduled the matter for a trial to begin on March 23, 2020. {¶ 12} On February 20, 2020, Napier moved the trial court for an order requiring theButler CA2020-03-038

- 6 - state to supply his expert with a representative sample of the "alleged illegal substance which serves as the basis of the within charge." Napier suppor ted his motion by citing to R.C. 2925.51(E). As relevant here, pursuant to that statute: Any person who is accused of a violation of [Chapter 2925] or of Chapter 3719. of the Revised Code is entitled, upon written request made to the prosecuting attorney, to have a portion of the substance that is, or of each of the substances that are, t he basis of the alleged violation preserved for the benefit of independent analysis performed by a laboratory analyst employed by the accused person, or, if the accused is indigent, by a qualified laboratory analyst appointed by the court. Such portion shall be a representative sample of the entire substanc e that is, or of each of the substances that are, the basis of th e alleged violation and shall be of sufficient size, in the opini on of the court, to permit the accused's analyst to make a thorough scientific analysis concerning the identity of the substance or substances. {¶ 13} On February 25, 2020, the trial court held a hearing on Napier' s motion. At this hearing, the state acknowledged that it could not provide Napier's expert with the requested sample because the evidence had already been "destroy ed" by the Butler County Sheriff's Office the preceding year, in 2019. Explaining why t he evidence had been destroyed, the state notified the trial court as follows: Your Honor, in my conversation with Ofc. Barder, he – I don't think deputy because he's with a different agency now. 1 What he relayed to me was they sent out something to see if these cases are still active. They sent it to him at the sheriff's o ffice, I guess, address. He didn't receive that. They didn't get a response. And it was destroyed. That's the last I've heard. * * * I don't think anyone signed it but I don't think it was malic ious. I don't think it was in bad faith. I think it was done – they thought it was just an old case. To this, Napier's trial counsel stated: Judge, I have no reason to disbelieve the Prosecutor on that fact. I don't believe he had any influence over the destructio n of

1. We note that while the transcript refers to "Ofc. Barber," t he circumstances indicate that the state was actually referring to Deputy Brown. This is the same Deputy Br own who testified at the hearing on Napier's motion to suppress.Butler CA2020-03-038

- 7 - that property or guided anyway to do so. * * * But, Judge, with that fact now being known, I will inform the Court I'll be fili ng a motion to dismiss. {¶ 14} On March 5, 2020, Napier filed his motion to dismiss. To suppo rt this claim, Napier relied heavily on this court's decision in State v. Riley , 69 Ohio App.3d 509, 511 (12th Dist.1990). In that case, the state appealed a trial cou rt's decision dismissing an indictment charging a defendant with two counts of "drug abuse" based on the state's failure to adhere to the requirements set forth in R.C. 2925.51(E) when the state's testing process "totally consumed" the substance. Finding no error in the tria l court's decision, this court

stated: In [ State v. Godby , 12th Dist. Warren No. CA83-05-029, 1984 Ohio App. LEXIS 8796 (Feb. 27 1984)], this court held that under R.C. 2925.51(E), the state should refrain from conducting an analysis of a suspected controlled substance without affording the accused an opportunity to have his own analyst present when only a meager quantity of the suspected substance is available for analysis and such analysis would consume the entire amount, thereby depriving the accused of the opportunity to conduct his own independent analysis. In [ State v. Smallwood , 12th Dist. Clermont No. CA87-08-066, 1988 Ohio App. LEXIS 191 (Jan. 25, 1988)], we extended Godby , supra , to situations such as the case at bar so as to include those suspected of committing an offense within the ambit of R.C. 2925.51 as well as those formally charged with an offense. The Smallwood decision also affirmed the dismissal of the indictment as a proper remedy for a violation of R.C. 2925.51(E). (Emphasis added.) Id. at 511. {¶ 15} On March 12, 2020, the trial court held a hearing on Napier's m otion to dismiss. After hearing arguments from both parties, the trial court issued its decision from the bench granting Napier's motion. In so holding, the trial c ourt stated that it felt that "normally" it would be up to the trial court to "fashion the re medy to discourage the violation in that case and discourage future violations," something it wo uld do by taking into account "the degree of bad faith," as well as whether the defendant "ma y have contributed to theButler CA2020-03-038

- 8 - destruction of the evidence by fleeing and eluding the law and not abiding by the bond conditions. And secreting himself." The trial court, however, determined that under these circumstances it had "no discretion" given this court's decisio n in Riley as outlined above. Specifically, as the trial court stated: But it appears that the Court has no discretion, is without discretion to consider any of those factors and must simply determine whether or not there's been a violation of the duty t o preserve the evidence as set forth in Revised Code Section 292[5].51. And that has been conceded. * * * So as a result of that being conceded, the Court has – the Court has no choice but to dismiss the indictment against this Defendant. {¶ 16} The trial court then concluded and noted that its decision was based "solely" on the statutory language found in R.C. 2925.51(E) and this cou rt's decisions in Riley , Godby , Smallwood , and State v. Bross , 12th Dist. Butler No. CA90-04-079, 1990 Ohio App. LEXIS 4716 (Oct. 29, 1990), a case in which this court found at *3 that "[t]he Smallwood decision * * * affirmed the dismissal of the indictment as a pr oper remedy for a violation of R.C. 2925.51(E)." The state now appeals the trial court's deci sion granting Napier's motion to dismiss, raising the following single assignment of error fo r review. {¶ 17} THE BUTLER COUNTY COURT OF COMMON PLEAS COMMITTED

REVERSIBLE ERROR WHEN IT GRANTED APPELLEE'S MOTION TO DISMISS. {¶ 18} The state argues the trial court erred by granting Napier's mot ion to dismiss upon finding the state could not adhere to the requirements set forth by R.C. 2925.51(E). We agree. {¶ 19} "The Ohio Revised Code provides a mechanism whereby the accused in a drug case may request in writing that a sample of the chemical be preserved for testing."

State v. Hendricks , 9th Dist. Summit No. CA25133, 2011-Ohio-3796, ¶ 7. This mech anism is found in R.C. 2925.51. That statute is designed to ensure t hat a defendant accused of violating R.C. Chapter 2925, like Napier, has the opportunity t o prepare a valid defenseButler CA2020-03-038

- 9 - where there is a question as to the makeup of the drug involved in the charged offense. Godby , 1984 Ohio App. LEXIS 8796 at *6. Specifically, "R.C. 2925.51 (E) provides that any individual accused of a violation of R.C. Chapter 2925 is entit led, upon proper written request, to have a portion of the substance forming the basis o f the alleged violation preserved for the benefit of independent analysis performed by a laboratory analyst employed [by] the accused." Bross , 1990 Ohio App. LEXIS 4716 at *2. {¶ 20} Although "[t]he right to have an independent analysis is derive d exclusively from statute, rather than from the constitution," State v. Dorton , 5th Dist. Licking No. CA 2651, 1980 Ohio App. LEXIS 12005, *9 (Feb. 20, 1980), this cour t has previously determined that the dismissal of the indictment is a proper rem edy for when the state violated the requirements set forth by R.C. 2925.51(E). Smallwood , 1988 Ohio App. LEXIS 191 at *8, citing Godby ; see, e.g., Riley , 69 Ohio App.3d at 511 ("[o]ur prior decisions in Godby and Smallwood are dispositive of the case at bar and we find that the trial court did not err in dismissing the indictment against appellee" where th e state violated the requirements set forth in R.C. 2925.51[E]); see also Bross at *3 ("[t]he Smallwood decision * * * affirmed the dismissal of the indictment as a proper reme dy for a violation of R.C. 2925.51[E]"). {¶ 21} However, in so far as this court's decisions in Godby , Smallwood , Riley , and

Bross hold that a trial court must dismiss the indictment in a case where the state cannot adhere to the requirements set forth in R.C. 2925.51(E), this c ourt's decisions in those cases are no longer good law and are hereby overruled. Contrar y to what this court held in those four cases now approaching over 30 years ago, R.C. 2925.5 1(E) "is not designed to automatically prevent the conviction of a defendant or suppress ion of a laboratory report regarding drugs that have been destroyed prior to trial." State v. Calhoun , 9th Dist. Lorain No. 94CA005907, 1995 Ohio App. LEXIS 3336, *3-4 (Aug. 9, 1995). Rather, it is nowButler CA2020-03-038

- 10 - generally well established that "a violation of a defendant's s tatutory rights under R.C. 2925.51(E) 'provides an insufficient basis, standing alone, to suppress the [s]tate's

evidence.'" State v. Barron , 2d Dist., 2011-Ohio-2425, ¶ 14, quoting State v. Christian , 2d Dist. Montgomery No. 17824, 1999 Ohio App. LEXIS 6035, *18 (Dec . 17, 1999). This is because, absent a legislative mandate requiring its application , "a purely statutory violation does not trigger application of the exclusionary rule." State v. Dallman , 12th Dist. Clermont Nos. CA2017-11-056 and CA2017-11-057, 2018-Ohio-2670, ¶ 26, cit ing State v. Jones , 88 Ohio St.3d 430, 435-436 (2000); see also State v. Morse , 12th Dist. Warren Nos. CA2001- 11-099 and CA2001-11-100, 2002-Ohio-3873, ¶ 20 ("the exclusiona ry rule will not ordinarily be applied to evidence that is the product of police conduct vi olative of state law, but not violative of constitutional rights, absent a legislative mandat e requiring application of the exclusionary rule"). {¶ 22} Because a violation of a defendant's statutory rights under R.C . 2925.51(E) is insufficient to automatically trigger the suppression of the state's evidence, we hold that such a violation, standing alone, would also be insufficient to automatically trigger the

dismissal of the indictment. A defendant alleging a violation of R.C. 2 925.51(E) must instead "establish a violation of his [or her] constitutional r ights to obtain a remedy." State

v. Jarvis , 2d Dist. Montgomery No. 16388, 1998 Ohio App. LEXIS 453, *15 (Feb. 13, 1998). This is done by applying the standard for evaluating due proces s violations set forth by the United States Supreme Court in Arizona v. Youngblood , 488 U.S. 51, 109 S.Ct. 333 (1988). See, e.g., State v. Johnson , 8th Dist. Cuyahoga No. 82527, 2003-Ohio-4569, ¶ 12 ("[v]iolations of R.C. 2925.51 are evaluated under the Arizona v. Youngblood , supra , standard for due process violations"), citing State v. Smith , 9th Dist. Lorain No. 93CA005585, 1994 Ohio App. LEXIS 1089, *9 (Mar. 16, 1994). The refore, for the defendant to prevail, the defendant must show that the state either "(1) failed to preserve materiallyButler CA2020-03-038

- 11 - exculpatory evidence or (2) in bad faith, destroyed potentially useful evidence." Barron , 2011-Ohio-2425 at ¶ 15, citing State v. Franklin , 2d Dist. Montgomery No. 19041, 2002- Ohio-2370, ¶ 44 thru 46, citing Youngblood at 57-58; State v. Brown , 170 Ohio App.3d 235, 2007-Ohio-179, ¶ 12 (2d Dist.) ("[w]hen evidence is only potent ially exculpatory, the destruction of such evidence does not deprive an accused of due process unless the police acted in bad faith when destroying the evidence"). {¶ 23} The evidence at issue in this case – a substance that tests con ducted by the Hamilton County Crime Lab determined was 4.96 grams of methamph etamine – did not have any exculpatory value to Napier that was apparent prior to its destruction. See, e.g.

Barron , 2011-Ohio-2425 at ¶ 16 (appellant's urine sample "had no excu lpatory value that was apparent before its destruction because it already had test ed positive for cocaine"). This is because, by moving the trial court for an order requiri ng the state to supply his expert with a representative sample of that substance, Napier was mere ly planning to subject the substance to additional testing. This does not, in and of itse lf, make the substance materially exculpatory. "'[E]videntiary material of which no m ore can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant,' is not materially exculpatory." Id ., quoting Christian , 1999 Ohio App. LEXIS 6035 at *20. This makes sense when considering there was no ba sis to conclude the substance was something other than methamphetamine prior to its destruction. See, e.g.,

Brown , 2007-Ohio-179 at ¶ 13 (there was no basis to conclude that th e substance was not crack cocaine where the state "obtained a laboratory report sho wing that the substance seized from the pocket of [d]efendant's shirt was cocaine" prio r to its destruction). Therefore, rather than materially exculpatory evidence, the sub stance was only potentially useful evidence. Accordingly, because the substance was, at be st, merely potentially useful evidence, its destruction did not constitute a due process viol ation that would entitle NapierButler CA2020-03-038

- 12 - to a remedy absent a finding of bad faith. {¶ 24} The record indicates that the substance was destroyed pursuant to the standard procedure employed by the Butler County Sheriff's Offi ce when deciding whether

to retain certain evidence for still open, albeit older cases. "The fact that the substance was destroyed pursuant to 'standard procedure' does not alter the f act that appellee violated its statutory duty to preserve the sample portion until it was no l onger needed for compliance

with R.C. 2925.51." State v. Hutcherson , 10th Dist. Franklin No. 89AP-577, 1989 Ohio App. Lexis 4484, *4 (Nov. 28, 1989). However, although it "cannot u se its own 'standard procedure' as a shield to providing discovery that has been leg islatively mandated," there is nothing in the record to indicate the Butler County Sheriff' s Office, or the state in general, acted in bad faith by destroying the evidence approximately eig ht years after Napier

absconded on the eve of trial. {¶ 25} "'The term 'bad faith' generally implies something more than ba d judgment or negligence.'" Barron , 2011-Ohio-2425 at ¶ 17, quoting State v. Buhrman , 2d Dist. Greene No. 96 CA 145, 1997 Ohio App. LEXIS 4093, *35 (Sept. 12, 1997). The term also "imports a dishonest purpose, moral obliquity, conscious wrongdoing, bre ach of a known duty through some ulterior motive or will partaking of the nature of fraud" that "embraces the

actual intent to mislead or deceive another." Barron . None of that occurred here. Therefore, because there is no indication that the substance wa s destroyed in bad faith, the

destruction of the evidence did not constitute a violation of N apier's due process rights that would entitle him to a remedy. See, e.g., Barron at ¶ 17, 21 (appella te court "u npersu aded that the trial court abused its discretion in declining to supp ress the lab test results" where the defendant was unable to establish "the actions of the prose cution, or of the crime lab, amounted to bad faith"). Accordingly, for the reasons outlined above, we find the trial court's decision to grant Napier's motion to dismiss was error.Butler CA2020-03-038

- 13 - {¶ 26} In so holding, we note that this court offers no opinion as to what remedy a trial court should award to a defendant who, unlike Napier in t his case, prevails on a due process claim based on the destruction of evidence in violation of R.C. 2925.51(E). We believe that is a question better suited for the trial court to decide based on the facts and circumstances of that particular case. This allows the trial c ourt to exercise its discretion in fashioning the remedy that it believes should be awarded to an aggrieved defendant. Such a remedy may include, but is not limited to, suppressing the ev idence or, in more egregious cases, dismissing the indictment outright. Given the trial cou rt's discretion in this matter, a trial court's decision as to what remedy to award to the defend ant would be reviewed by

this court for an abuse of that discretion. "Such a standard r equires extraordinary deference

to the trial court" that allows this court to reverse the trial court's decision only if we were to find the trial court's decision was unreasonable, arbitrary, or unconscionable. State v.

Davis , 12th Dist. Butler No. CA97-12-240, 1998 Ohio App. LEXIS 4550, *4 (Sept. 28, 1998). {¶ 27} Judgment reversed and remanded.

HENDRICKSON, P.J., and RINGLAND, J., concur.