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State v. C.J.

Court of Appeals of Ohio, Twelfth District, Warren

April 2, 2018

STATE OF OHIO, Plaintiff-Appellee,
C.J., Defendant-Appellant.


          David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, for plaintiff-appellee

          Christo Lassiter, 839 Dunore Road, Cincinnati, for defendant-appellant


          M. POWELL, J.

         {¶ 1} Defendant-appellant, C. J., appeals a decision of the Warren County Court of Common Pleas, Juvenile Division, adjudicating him a delinquent child.

         {¶ 2} On June 20, 2016, 14-year-old appellant, 15-year-old B.N. (the "victim"), and two other male juveniles played a basketball game at the Mason Community Center. After completion of the game, appellant and the victim played a one-on-one game, while the other two boys watched. Appellant and the victim were experienced basketball players and knew each other from other games at the community center. As the game progressed, it became very physical, with each boy taunting and aggressively fouling the other. At one point during the game, the victim hit his knee on the floor and it began to bleed. Some of the other boys who were watching the game from a bench on the sidelines began laughing at the victim. In response, the victim threw the ball at one of his friends and pushed another boy off the bench. The video system at the community center recorded the victim doing so.

         {¶ 3} By all accounts, the game was very competitive and the fouls became increasingly physical. The game ended with a confrontation between appellant and the victim. As the victim went for a lay-up, appellant knocked him to the ground. Appellant then "got into" the victim's face and taunted him. Fed up, the victim got up and as he went to get his bag and leave the court, pushed appellant out of the way. Appellant testified that the victim was angry and that in addition to shoving him, the victim also kicked appellant as hard as he could in the shin. The victim denied kicking appellant and stated that any kick was accidental. In response to the victim's actions, appellant punched him in the face, causing injury. Appellant immediately apologized to the victim.

         {¶ 4} Mason police were called and Police Officer Jonathan Stafford responded. The officer spoke to the victim and various witnesses and viewed the community center video. Although the video did not show the actual altercation between appellant and the victim, it showed the victim throwing the ball at one of his friends and pushing another boy off the bench as they watched the game. Officer Stafford found appellant and his mother sitting on a bench, outside of the community center office. Appellant's mother gave permission for the officer to speak with appellant. Appellant told the officer what happened and provided a written statement to the officer. No Miranda warnings were given. After appellant provided his statement, he was not arrested and he and his mother left the community center.

         {¶ 5} On June 24, 2016, Officer Stafford filed a complaint alleging appellant was a delinquent child for having committed an act that would constitute assault in violation of R.C. 2903.13(A), if committed by an adult. Five days later, appellant's trial counsel sent a letter to the prosecutor requesting discovery and asking that all evidence be preserved, including the community center video. Trial counsel also delivered the request for preservation of the video to the Mason Police Department. Officer Stafford was a new police officer and was unaware that any video from the community center was fed to the police department. The record does not reflect whether the prosecutor communicated with Officer Stafford about the defense request for the preservation of the video. In any event, Officer Stafford failed to request that the video be preserved. Consistent with its practice, the community center recorded over the video.

         {¶ 6} Appellant moved to dismiss the case on the ground the state violated his due process rights by failing to preserve the community center video. Appellant argued that the video was necessary to establish that he acted in self-defense when he punched the victim. Appellant further moved to suppress his statements to Officer Stafford on the ground he was never advised of his Miranda rights. On December 5, 2016, a juvenile court magistrate held a hearing on appellant's motions to dismiss and suppress, and then proceeded to an adjudicatory hearing on the assault charge. Prior to the hearing on the motion to dismiss, the parties entered into the following Agreed Upon Stipulation of Fact regarding the video:

Mason Police Videotape taken at the Mason Community Center in Mason on 6-21-16 [sic], at approximately 1326 hours, and referenced in [Mason] Police Incident Report * * * shows [B.N.] (alleged victim) shoving a kid on the bench, as well as throwing a basketball at another kid. This occurred approximately 1-2 minutes prior to the incident.

         {¶ 7} The magistrate denied appellant's motion to suppress, finding that appellant was not in custody when he talked to Officer Stafford, and therefore, Miranda warnings were not required. The magistrate further denied appellant's motion to dismiss. The magistrate found that the video was not materially exculpatory, and therefore, appellant was required to show the state acted in bad faith in failing to preserve the video. The magistrate found that the state did not act in bad faith. The magistrate further found that appellant was able to obtain comparable evidence to the video, given the parties' stipulation as to what was shown on the video, Officer Stafford's testimony, and the fact appellant was "able to call witnesses who were actually present." Appellant filed objections to the magistrate's denial of his motions to dismiss and suppress, which were overruled by the juvenile court.

         {¶ 8} On January 19, 2017, the magistrate adjudicated appellant delinquent for committing the lesser included offense of disorderly conduct in violation of R.C. 2917.11(A)(1). The magistrate found that appellant failed to prove he acted in self-defense when he punched the victim. The magistrate further found that the victim's kick, "even if intentional[, ] was minor." Appellant filed objections to the magistrate's order, which were overruled by the juvenile court.[1]

         {¶ 9} Appellant now appeals, raising three assignments of error.

          {¶ 10} Assignment of Error No. 1:


         {¶ 12} Appellant argues that his due process rights were violated when the state failed to preserve the community center video, and thus, the juvenile court erred in denying his motion to dismiss. Appellant asserts that the video was materially exculpatory because it would have shown how angry the victim was when he threw the ball at one of his friends and pushed another off the bench minutes before his altercation with appellant. Appellant claims the video would have rebutted the victim's assertion that his kick was merely accidental, and was thus necessary to establish that appellant acted in self-defense when he punched the victim.

         {¶ 13} When reviewing a trial court's decision regarding a motion to dismiss, this court applies a de novo standard of review. State v. Shalash, 12th Dist. Warren No. CA2014-12-146, 2015-Ohio-3836, ¶ 21. We thus give no deference to the trial court's decision. State v. Hubbard, 12th Dist. Preble No. CA2004-12-018, 2005-Ohio-6425, ¶ 6.

         {¶ 14} Depending on the nature of the evidence, different tests are applied to determine whether the state's failure to preserve evidence amounts to the level of a due process violation. State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 73; State v. Gatliff, 12th Dist. Clermont No. CA2012-06-045, 2013-Ohio-2862, ¶ 40. The state's failure to preserve "materially exculpatory" evidence, regardless of whether such failure was done in good faith or bad faith, violates due process. Gatliff at ¶ 40. Evidence is constitutionally material when it possesses "an exculpatory value that was apparent before the evidence was destroyed, and is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id.

          {¶ 15} A different rule is used when the evidence is merely "potentially useful." Id. at ¶ 41. Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. Id. Bad faith implies more than bad judgment or negligence; rather, it imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive, or ill will partaking of the nature of fraud. Id.

         {¶ 16} A defendant generally bears the burden of showing that the evidence was materially exculpatory. Gatliff,2013-Ohio-2862 at ¶ 40. However, "where a defendant moves to have evidence preserved and that evidence is nonetheless destroyed by the state in accordance with its normal procedures, " the burden shifts back to the state to prove that the evidence was not exculpatory. State v. Benton,136 Ohio App.3d 801, 805 (6th Dist.2000). See also Columbus v. Forest, 36 Ohio App.3d 169 (10th Dist.1987); State v. Palivoda, 11th Dist. Ashtabula No. 2006-A-0019, 2006-Ohio-6494; and State v. McDade, 12th Dist. Warren Nos. CA2003-09-096 and CA2003-09-097, 2004-Ohio-3672. "However, if the state fails to carry this burden, the defendant must still show that the evidence could not have been obtained by other reasonable ...

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