[Cite as State v. Blair , 2014-Ohio-1279.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO Plaintiff-Appellee

v. JAMES C. BLAIR Defendant-Appellant

Appellate Case No. 25578 Trial Court Case No. 2011-CR-3790
(Criminal Appeal from ( Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 28th day of March , 2014.

. . . . . . . . . . . MATHIAS H. HECK, JR., by APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, Montgomery County Pros ecutor’s Office, Appellate Divi sion, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee SCOTT N. BLAUVELT, Atty. Reg. No. 0068177, 246 High Street, Hamilton, Ohio 45011 Attorney for Defendant-Appellant

. . . . . . . . . . . . . DONOVAN, J. 2

 {¶ 1} Defendant-Appellant, James Blair, a ppeals from his conviction and sentence on charges of Assault (Peace Officer) and Carrying Con cealed Weapons. Blair contends that the trial court erred in overruling his motion to dismiss, which was based on the St ate’s destruction of a videotape of the events su rrounding Blair’s arrest. {¶ 2} We conclude that the trial court did err in overruling Blair’s motion to dismiss as to count one, the Assault (Peace Officer) charge. Th e videotape that was er ased by the police was materially exculpatory. Accordingly, the judgment of the trial court with respect to the Assault (Peace Officer) is reversed and remanded for the trial court to dismiss it. With respect to the Carrying Concealed Weapon charge , the judgment is Affirmed. I. Facts and Course of Proceedings {¶ 3} On March 7, 2011, Dayton Police Officer Mark Orick was on patrol in his cruiser in the area of Edwin C. Moses Boulevar d and Washington Street, in Dayton, Ohio. At about 5:13 p.m., Orick was dispatched to the area of West Third Street and Broadway Street in connection with a black Chevy Impala that was pa rked at an ATM at th at location. Detective Phillips, who was working on the Safe Streets Task Force, believed that the driver of the car was James Blair, who had an active felony warrant. {¶ 4} Orick was only about a minute away, and he proceeded to the intersection. As Orick traveled westbound on West Third Street, he saw the Impala make a right-hand turn onto West Third Street. The vehicl e then traveled westbound on West Third Street. After observing the driver fail to signal a lane change, Orick activated his overhead lights and initiated a traffic stop. {¶ 5} At the time, Orick’s cruiser was equipped with a VHS system. The VHS 3

 recorder was in the trunk, which was accessible only by police officers who ranked as sergeants or above. The recorder contained a VHS ta pe that had to be changed frequently. {¶ 6} The camera for the record er was mounted on the top of the cruiser on the inside, facing out through the front window. A monitor wa s attached just below, so that officers could see what the camera was filming. Activation of the cruiser’s overhead lights automatically tripped the camera to begin recording. {¶ 7} Orick notified dispatch that the vehicl e had been stopped, and he walked up to the driver’s side of the Impala. The vehicle cont ained three occupants – the driver, a front-seat passenger, and a rear-seat passenger. Orick identified himself as a police officer, told the driver why he had pulled the vehicle over, and asked fo r identification from all the occupants. After determining that the driver was James Blair, which was the name given by Detective Phillips, Orick asked Blair to step out of the vehicle. Dayton Police Officer Chris Smith arrived on the scene as Orick was in the process of removing Blair from the vehicle. {¶ 8} Orick placed Blair to the right of the driver’s side door and began to perform a patdown for weapons. Because Blair had an outst anding warrant for fel onious assault, Orick wanted to pat him down to make sure he did not have any weapons . Orick had a firm grasp on the back of Blair’s waistband, and Blair had his hands on the car. According to Orick, when he got to Blair’s waist area, Blair spun and attempted to run back to the east or southeast. Blair pulled Orick a few feet with him until Or ick was able to spin Blair back around. Orick told Blair to stop resisting, and that he was under arrest. At that point, the two men started to go to the ground. They were near the left front tire of the Impala. {¶ 9} As Orick attempted to secure Blair, Blair struck Orick twice on the left and back 4

 side of the head. This occurred, according to Orick, after he and Blair were on the ground struggling. This fact was contradicted by Detec tive Spears who watched the videotape prior to its erasure wherein Spears noted Orick struck Blair on ce in the back of the head to get him to the ground. {¶ 10} While Blair and Orick were struggling, Officer Smith deployed his taser. Orick felt a shock from the wires, and he let go of Blair, who then got up and began to run across the street. Orick subsequently tackled Blair in the eastbound lane, near the cur b. At that point, Blair continued to struggle and ignored the officers’ commands to place his hands behind his back. Consequently, Smith “dry stunned” Blair, without the taser probes, and the officers were able to secure Blair in handcuffs. {¶ 11} Officer Smith testified that he got to the scene about 10 seconds after Orick arrived. Smith saw Orick get out and approach Blair’s vehicle. Smith stated that while Orick was attempting a patdown of Blair, Blair turn ed around, swung, and pushed at Orick. According to Smith, this occurred when both Blair and Orick we re standing at the driver’s side door. Smith also specifically stated that Blair hit Orick twice in the head. {¶ 12} After explaining to Blair that he was under arrest, Smith used the taser on Blair. Blair broke free and was chased, after which Smith had to perform a stun gun tase on Blair three times before they were able to subdue him. {¶ 13} Following the arrest, Orick saw a handg un laying in the middle of the street, directly in front of and about te n feet away from the driver’s side door of the Impala. At that point, more crews had arrived on scene, and they took both passengers into custody. Thereafter, Orick found a magazine in Blair’s ri ght front pocket that belonged to the weapon that was laying in 5

 the street. As Orick removed the magazine, whic h had five live rounds, Blair admitted that he had just been trying to run so he could get rid of the gun. {¶ 14} Both Orick and Blair were transported to the hospital. Orick had scuff marks and minor bruising to his right hand from taking Bl air to the ground, while Blair received about eight or nine stitches for a wound to his left ear. {¶ 15} Because the incident involved use of force, Dayton Police Sergeant Mark Spears conducted an internal investiga tion. Spears took statements from Orick and Smith, and from the two passengers, James Wright and Derek Farmer. The passengers’ written statements were not very detailed. Spears’ written report did not specifically mention that Blair had hit Orick. {¶ 16} As part of his investigation, Spears removed the VHS tape from the cruiser and took it to the Central Business District on Sale m Avenue, which had a television a nd several recording devices. The office ha d an old VHS with a DVD player in the side, which could be used to dub VHS tapes onto a DVD. The system wa s at least 15 years old, and approximately 17 different steps had to be performed to save a VHS tape to DVD format. {¶ 17} Spears initially watched the incident and then rewound the tape to the start of the incident. After doing this, Spears tried to follo w the steps to create a DVD. However, the VHS tape was somehow erased during th e process. The machine did not have an erase button, nor did Spears think he had recorded over the VHS tape. However, the screen was blank when Spears tried to record, and he concluded that he must have hit the wrong butt on. After the tape was erased, it was placed on a 45-day hold in case another pa rt of the tape needed to be used. The tape was then put back into the unit to be reused. Sign ificantly, Blair was indicted about one year later. {¶ 18} During his review of the tape, Spears was able to see the initial stop and the 6

 contact with Blair. Spears saw the initial struggle outside the car to the point where Blair broke free. Spears acknowledged observing Orick appear to strike Blair once on the back part of his head in order to get Blair down, and he saw Smith approaching. At that point, the machine captured Smith’s back. By that time, Blair had already pulled Orick out of the camera’s view, so that Spears could not see who was being tased. He could see Smith crouching with the taser and suddenly Blair ran out. Nothing else was captured on the camera. {¶ 19} In February 2012, Blair was indicted fo r Assault (Peace Officer), a fourth degree felony, and for Possession of a Concealed Weapon, al so a fourth degree felony. Blair pled not guilty, and then filed a motion to dismiss the charges, based on the destruction of the videotape. After conducting a hearing, the tr ial court overruled the motion to dismiss. Blair subsequently pled no contest to Assault (Peace Officer), as charged, and to a reduced charge of Carrying Concealed Weapons, a first de gree misdemeanor. After acceptin g the plea, the trial court sentenced Blair to community control sanctions. Blair appeals from his conviction and sentence. II. Did the Trial Court Err in Overruling the Motion to Dismiss? {¶ 20} Blair’s sole assignment of error states that:
“THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION TO DISMISS.” {¶ 21} Under this assignment of error, Blair contends that the trial court erred in overruling the motion to dismiss because the evidence on the VHS tape was materially exculpatory. Blair also argues that even if the evidence was only potentially useful, the State acted in bad faith. {¶ 22} In overruling the motion to dismiss, the trial court held that Blair had failed to 7

 meet the burden of establishing that the tape wa s exculpatory in nature. The court noted that while some conflict ex isted in the witness accounts, th ree Dayton police officers and two independent witnesses had seen the incident and could tes tify at trial. Thus, the tape’s potential use was simply for purposes of impeaching a witness’ recitation of events, and this was not enough to demonstrate that the evidence was exculpatory. {¶ 23} The principle is well established that “[t]he Due Process Clause of the Fourteenth Amendment to the United States Constitution prot ects a criminal defendant from being convicted where the state fails to preserve materially exculpatory evidence or destroys in bad faith potentially useful evidence.” State v. Franklin , 2d Dist. Montgomery No. 19041, 2002-Ohio-2370, ¶ 44, citing Arizona v. Youngblood , 488 U.S. 51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). (Other citations omitted.) “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 obtai n comparable evidence by other reasonably available means.’” Franklin at ¶ 44, quoting California v. Trombetta , 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). “The defendant bear s the burden to show that the evidence was materially exculpatory.” State v. Powell , 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 74, citing State v. Jackson , 57 Ohio St.3d 29, 33, 565 N.E.2d 549 (1991). {¶ 24} After reviewing the record, we disagree with the trial court that the evidence was not materially exculpatory. Blair was char ged with having violated R.C. 2903.13(A), which provides that “No person shall knowin gly cause or attempt to cause phy sical harm to another or to another's unborn.” In situations wh ere the assault is on a police offi cer, the crime is elevated to a felony of the fourth degree. R.C. 2903.13(C)(5 ). “Physical harm” is defined by R.C. 8

 2901.01(A)(3) as “any injury, illness, or other physiolog ical impairment, regardless of its gravity or duration.” {¶ 25} In challenging the trial court’s ruling, Blair focuses on inconsistencies in the officers’ accounts. We acknowledge that the tes timony of the police officers who witnessed the assault does differ in several key respects, not just in their trial testimony but in the statements they provided to Detective Spears in preparation of the Internal Affairs Report, identified as Defendant’s Exhibit C. Officer Orick indicated that he hit Blair in the head after the two men were on the ground struggling while Officer Smith’s testimony indicates that the men were still standing when Blair hit Orick. The videotape was the only objective evidence available and the best evidence to support Blair’s contention that the violence was initiated by Orick. The videotape would have clarified Blair’s de fense on this critical point. {¶ 26} In contending that the videotape was materially exculpatory, Blair additionally relies on the fact that Sergeant Spears failed to state in his written report, after he reviewed the videotape, that Blair had hit Orick. This is sign ificant since he noted the blow to the head by Orick upon Blair, but did not note in his report that Blair in fact struck Or ick first. When Spears was questioned at the hearing a bout Orick’s account, Spears noted th at he had only obtained a brief statement from Orick at the scene. According to Spears: Officer Orick stated that he was wrestling with the Defendant; the Defendant was flailing his arms around, trying to get away. I don’t know. I’m sure he mentioned that he was struck by him, but that he – it was during the pat down that Defendant attempte d to break free and that’s when the altercation took place. And that during that time he [Orick ] struck him in the back of the head 9

 trying to take him to the ground. {¶ 27} Sergeant Spears made the following furt her statement in res ponse to whether his report mentioned Blair having sw ung at or having hit Orick: No, I think we just probably say that he managed to break free, and by doing that, there’s probably some type of force. When you say that he “broke free,” it doesn’t sound like the officer said he let him go. So. You’re right. I was – probably didn’t put as much detail, but it sa id he was – managed to break free. So I think that kind of insinuates that there’s force being used to get away from the officer when he managed to break free. You don’t break free from somebody by standing there and you separate. When y ou break free, that means some type of force. So I probably did not put as much detail as I should have in that report. {¶ 28} Given the inconsistencies in the witness statements, and what Officer Smith and Detective Spears acknowledged having occurred, the ta pe would have been ma terially exculpatory. {¶ 29} Blair compares his situation to that of the defendant in State v. Benson , 152 Ohio App.3d 495, 499, 2003-Ohio-1944, 788 N.E.2d 693 (1st Dist.). In discussing whether the evidence in that case was materially exculpatory, the First District Court of Appeals observed as follows: The state argues that, even though th e tape was not preserved, it was not materially exculpatory because the field sobriety testing was not recorded on it. Despite the state's arguments, it is possible that the tape was materially exculpatory. The testimony of Benson and his two eyew itnesses disputed much of the testimony that the officer gave at th e suppression hearing and again at trial relating to the stop 10

 and the DUI charge. In our view, the ta pe would have provided the only possible objective evidence of the events on the night Benson was stopped. Further, the evidence was unique and not obt ainable by other means. Id . at ¶ 12. {¶ 30} Like the defendant in Benson , Blair would be unable “‘ to obtain comparable evidence by other reasonably available means.’” Franklin , 2d Dist. Montgomery No. 19041, 2002-Ohio-2370, at ¶ 44, quoting Trombetta , 467 U.S. at 489, 104 S.Ct. 2528, 81 L.Ed.2d 413. Blair was not obligated to testify, and it is unclear how much of the struggle the passengers were able to observe. One passenger, Farmer, an atto rney, wrote in pertinent part “officer began a patdown search. I then saw scuffling and officer and driver went to the ground.” His written statement does not indicate that Officer Orick act ed properly and that th e officer did nothing wrong. The statement of the second passenger , Wright, does not mention a struggle nor an assault, just that the “driver go t tased and went to the ground.” {¶ 31} Thus, Blair met his burden to establis h that the videotape was materially exculpatory. {¶ 32} Finally, as previously noted: * * * we do not condone the destruction of videotapes that record events leading to an arrest: “Police cruisers are equipped with videotape cameras in order to make a record of those events for any later prosecution. On that basis, and pursuant to Crim.R. 16, they are available for use by an accused as they are for use by th e State in such proceedings. The need for care in preserving that record is implied by the force of the 11

 Rule.” State v. Fuller , 2d Dist. Montgomery No. 18994, 2002 WL 857671, at *4 (April 26, 2002), quoting State v. Zawacki , 2d Dist. Montgomery No. 16177, 1997 WL 630026, *2 (July 11, 1997). Officer Spears admitted to having inadvertently destroyed this key evidence, thereby failing in the State’s duty to preserve it. {¶ 33} Accordingly, the trial court did err in overruling Blair’s motion to dismiss. Blair’s sole assignment of error is sustained. III. Conclusion {¶ 34} Blair’s sole assignment of error having been sustained, the conviction for Assault (Peace Officer) is Reversed and Remanded for the trial court to dismiss it. With respect to the Carrying Concealed Weapon charge , the judgment is affirmed.

. . . . . . . . . . FAIN, J., concurs. WELBAUM, J., dissenting: {¶ 35} I very respectfully dissent from the ma jority opinion. There appears to be no dispute that Blair was physically struggling with Officer Orick in an attempt to get away. This type of conduct would suppor t a conviction for assault. Thus, re gardless of any in consistencies in the witness statements, the videotape would have only served to potentially impeach a particular account in some respects; I find no reasonable proba bility that the videotape’s disclosure would have resulted in an acquittal. {¶ 36} We have previously noted that “ * * * R.C. 2903.13(A) does not require that a defendant cause physical harm; it also prohibits individuals from attempting to cause physical 12

 harm to another. The testimony from the victim * * * is that [the defendant] was attempting to hit her, and swung at her at least three times. This testimony alone, would have satisfied the requirements for a conviction on the assault charge.” State v. Belcher, 2d Dist. Montgomery No. 24968, 2013-Ohio-1234, ¶ 57. Similarly, in the case before us, the fact that Blair was swinging at Orick and attempted to h it him would have been sufficient for a conviction on the assault charge. {¶ 37} Orick testified that while he and Blair struggled, and before they went to the ground, Blair threw two elbows to try and break free from his grasp. This alone would have justified an assault charge, wit hout the addition of the blows th at Blair allegedly inflicted on Orick’s head after they went to the ground. A lthough Smith believed that Blair struck Orick on the head while they were standing, rather than when the men were on the ground, there is still no dispute that Blair was attempting to cause physical harm to Orick. In this regard, there is no discrepancy in the officers’ tes timony – at least not in key resp ects. The video-tape may have clarified the location where the assault occurred, but both officers did testify that Blair hit Orick, which would have been sufficient for a conviction of assault. {¶ 38} The majority opinion also analogizes this case to Benson ,152 Ohio App.3d 495, 2003-Ohio-1944, 788 N.E.2d 693 (1st Dist.). I disagree. Unlike the defendant in Benson , Blair failed to present his own testimony , or the testimony of eyewitnesse s, to dispute the testimony of the police officers at the suppressi on hearing. As the movant, Blair had the burden of establishing that the evidence was materially exculpatory. Powell , 132 Ohio St.2d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 74. {¶ 39} Contrary to the assertion in the majo rity opinion, eyewitness, Derek Farmer, did tell the police that Officer Orick had acted properl y. Officer Spears, who conducted the internal 13

 investigation, took brief verbal and written statements from the passengers, one of whom was Farmer. As the majority observes, Spears said that the witnesses’ statements were not very detailed – however, Spears al so added that the witnesses were evasive. {¶ 40} Spears additionally said that Farmer did not get into much detail, because he claimed there was some sort of attorney-client privilege. However, Farmer verbally told Spears that the police officer had acted prope rly and did not do anything wrong. {¶ 41} As noted, Blair had the burden of estab lishing that the evidence was materially exculpatory. Powell at ¶ 74. Farmer was not counsel for Blair in the criminal case, and Blair could have called Farmer as a witness at the s uppression hearing to disput e Spears’s statements. However, he failed to do so, and the court was left with Spears’s undisputed testimony. Given the decision to overrule the motion to suppress, th e trial court a pparently found Spears credible. {¶ 42} When we review cases, we defer to the trial court’s determination of credibility. “The ‘rationale of giving deferen ce to the findings of the trial c ourt rests with the knowledge that the trial judge is best able to view the witne sses and observe their dem eanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.’ ”
In re J.Y. , 2d Dist. Miami No. 07-CA-35, 2008-Ohio-3485, ¶ 33, quoting from Seasons Coal Co., Inc. v. City of Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). {¶ 43} Furthermore, even in his brief written statement, Farmer admitted that he saw Orick and Farmer scuffle and saw the men go to the ground. And, while the other witness did not mention seeing a struggle, it is not the fault of the police that the witness’s statement was evasive and was not very detailed. These independent witnesses (the occupants of the car) were available to dispute the testimony of the officers, and could have testified at trial, meaning that Blair would 14

 be able “ ‘ to obtain comparable evidence by other reasonably available means.’ ” Franklin , 2d Dist. Montgomery No. 19041, 2002-Ohio-2370, at ¶ 44, quoting Trombetta , 467 U.S. at 489, 104 S.Ct. 2528, 81 L.Ed.2d 413. {¶ 44} Accordingly, Blair failed to meet his burden to establish that the videotape was materially exculpatory. This leaves the issue, however, of whether the po lice acted in bad faith. “If the evidence in question is not materially excu lpatory, but only potentially useful, 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, 254, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 10, citing Youngblood , 488 U.S. at 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281. “The term ‘bad faith’ generally implies something more than bad j udgment or negligence. ‘It im ports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulte rior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.’ ” Franklin at ¶ 47-48, quoting State v. Buhrman , 2d Dist. Greene No. 96 CA 145, 1997 WL 566154, *12 (Sept. 12, 1997). {¶ 45} In arguing that Officer Spears acted in bad faith, Blair relies on comments that we previously made in State v. Fuller , 2d Dist. Montgomery No. 18994, 2002 WL 857671 (April 26, 2002). In Fuller , police officers destroyed a videotape after concluding that it did not corroborate their account of what had happened. Id . at *4. The officer who stoppe d the defendant's car stated that he had seen the defendant “make a throwing motion as thoug h he were throwing something out the window.” Id . at *1. When the officer approached the car, he saw a green stick on the ground and recognized it as a stem from a marijuana plant. Id . However, because the tape did not “clearly depict” the tossing motion, the officers decided it was not relevant for a court 15

 proceeding, and destroyed the tape. Id. {¶ 46} We concluded in Fuller that the officers had not acted in bad faith. In this regard, we observed that: There is no evidence that the officers had an intent to mislead in destroying the videotape. To the contrary, they ca ndidly testified that the contents of the videotape did not corroborate their story. Thus, the evidence does not establish that they acted in bad faith. Fuller at *4. {¶ 47} As the majority opinion notes, we did stress in Fuller that we do not condone the destruction of videotapes that record events leading to an arrest. Id. at *4. I agree with that statement as a general principle. However, the case before us differs factually from Fuller

. There is no indication that Blair's videotape was intentionally destroyed because it did not coincide with the accounts of the police officers. Serg eant Spears was not charged with investigating whether Blair had committed assault; he was attempting to copy the ta pe for use in connection with an internal investigation over the use of force. Rather than acting intentionally, Spears simply made an error in following the instructions for copying tapes. At most, Spears' actions were negligent. Compare State v. Bolden , 2d Dist. Montgomery No. 19943, 2004-Ohio-2315, ¶ 56 (finding no bad faith where officer may have accidentally erased chat logs.) {¶ 48} Furthermore, contrary to Blair's cl aims, there would have been no reason to preserve the videotape beyond the 45-day hold, which appears to have been customary procedure. The videotape was only preserved fo r that length of time in order to allow access in case the police needed to use another part of th e videotape. The portion pertaining to the incident was blank, and preserving a blank videotape inde finitely would have served no purpose. Accordingly, the police 16

 did not act in bad faith. {¶ 49} For the reasons stated, I very respectfully dissent. I would affirm the judgment of the trial court, which overruled Blair's motion to dismiss.

. . . . . . . . . . . . . Copies mailed to: Mathias H. Heck April F. Campbell Scott N. Blauvelt Hon. Dennis J. Adkins
Case Name: State of Ohio v. James C. Blair Case No: Montgomery App. No. 25578 Panel: Fain, Donovan, Welbaum Author: Mary E. Donovan Summary: