Court of Appeals of Ohio, Second District, Montgomery
(Criminal Appeal from Common Pleas Court) Trial Court Case
MATHIAS H. HECK, JR., by HEATHER N. JANS, Attorney for
F. SOUTHER, Attorney for Defendant-Appellee.
1} The State of Ohio appeals from the trial
court's dismissal of an indictment against
defendant-appellee Wendell Buis based on pre-indictment
2} In its sole assignment of error, the State
challenges the trial court's ruling as an abuse of
3} The record reflects that a grand jury indicted
Buis on April 18, 2017 on one count of cocaine possession, a
fifth-degree felony. The indictment alleged that the offense
had occurred on or about February 7, 2015. Buis moved to
dismiss the indictment. He asserted that an unjustifiable and
prejudicial delay of more than two years between the alleged
offense and the indictment violated his due-process rights.
(Doc. #20). Buis noted that the indictment stemmed from a
traffic stop for speeding and that his address and telephone
number had not changed since the date of the offense. He
asserted that a police cruiser-cam recording of the traffic
stop no longer existed, that a dispatch recording about
sending a K-9 unit to the scene no longer existed, that the
dog involved had retired, and that the alleged drugs at issue
(which had been tested by the State and found to be cocaine)
had been destroyed. (Id. at 2-3). Buis also argued
that the Ohio State Highway Patrol trooper involved in the
traffic stop had apparently moved to a local police
department and it would not have been difficult for the State
to have located him more promptly. (Id. at 4-5).
Buis insisted that there was no valid reason for the delay,
which had resulted in actual prejudice to him. (Id.
4} The State opposed dismissal. It asserted that the
trooper who made the traffic stop had left the Ohio State
Highway Patrol shortly after the incident. The State
acknowledged that a crusier-cam recording of the stop had not
been saved and that the alleged cocaine had been destroyed.
The State asserted that on March 9, 2017 Trooper Kyle
Pohlabel brought the case to the prosecutor's office for
review. The State attributed the more than two year delay to
"a change in officers." (Doc. # 22 at 2). Despite
the delay, the State insisted that Buis had not shown any
actual prejudice. Absent a showing of prejudice, the State
argued that it had no burden to provide a justifiable reason
for the delay. (Id. at 3). With regard to prejudice,
the State reasoned:
In the present case not all of the evidence has been
destroyed. The testimony of the Officers as well as the
laboratory technician is still in existence. The testimony
would still be subject to cross examination. The
Defendant's biggest grievance with the delay is the lack
of cruiser cam. A lack of cruiser cam is not an uncommon
occurrence. A lack of cruiser cam footage does not make a
case unwinnable for the Defense. It is not an essential
element. Based upon this, the alleged prejudice claimed by
the Defendant is minimal at best.
(Id. at 4).
5} Neither party requested an evidentiary hearing on
Buis' motion, which the trial court sustained in a
September 28, 2017 decision and entry. (Doc. # 29). The trial
court began its review by citing the undisputed facts that
the alleged cocaine had been seized during a traffic stop, a
cruiser-cam video had been destroyed, and the alleged drugs
had been analyzed and destroyed after the preparation of a
report. (Id. at 1). Applying State v.
Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d
688, the trial court then concluded that Buis had established
actual prejudice due to the missing evidence. The trial court
opined that Buis was not required to show that the missing
evidence necessarily would have exonerated him. (Id.
at 3). Rather, the trial court found it sufficient that the
missing evidence would have enabled him to attack the
credibility of the State's evidence or to minimize the
impact of that evidence. (Id. at 3-7). The trial
court then reasoned:
The charge against Buis is "knowingly" possessing
cocaine in an amount less than 5 grams. To the extent the
seized substance was small or otherwise not obvious,
defendant would be able to reasonably argue lack of knowledge
at trial. Without that evidence he is denied the opportunity
to "minimize or eliminate" the impact of the
state's evidence specifically with regard to his
"knowingly" possessing cocaine.
* * * The Court finds that the combination of the missing
cruiser cam video, dispatch, and the seized substance, would
adversely affect the defense case at trial. It leaves the
accused unable to contest the alleged controlled substance
with respect to defendant's alleged knowing possession.
R.C. 2901.22(B) defines "knowingly" in the sense of
awareness of circumstances that probably exist. The size of
the container seized, its location, and particularity may be
important to contest the alleged awareness. Therefore, the
absence of the opportunity to inspect, examine, and
independently test the alleged cocaine negatively impacts the
defendant's ability to defend himself at trial. Even
without knowing what such testing would reveal as to the
amount of cocaine, (no longer material after State v.
Gonzales,  Ohio St.3d , [S]lip Opinion,
2017-Ohio-777), the presence of the alleged cocaine is
important to the defense. "[I]t cannot be said that the
missing evidence . . . would not have minimized or eliminated
the impact of the state's circumstantial evidence."
Luck, supra, 15 Ohio St.3d 150, 157.
Defendant is denied the opportunity to verify by independent
analysis that the police seized cocaine. He is denied the
opportunity to verify whether the police violated his Fourth
Amendment rights in the traffic stop, search, and seizure. He
is denied the opportunity to verify whether he was detained
too long before there was a canine alert ...