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State v. Buis

Court of Appeals of Ohio, Second District, Montgomery

May 4, 2018

STATE OF OHIO Plaintiff-Appellant
v.
WENDELL BUIS Defendant-Appellee

          (Criminal Appeal from Common Pleas Court) Trial Court Case No. 17-CR-812

          MATHIAS H. HECK, JR., by HEATHER N. JANS, Attorney for Plaintiff-Appellant.

          SUSAN F. SOUTHER, Attorney for Defendant-Appellee.

          OPINION

          HALL, J.

         {¶ 1} The State of Ohio appeals from the trial court's dismissal of an indictment against defendant-appellee Wendell Buis based on pre-indictment delay.

         {¶ 2} In its sole assignment of error, the State challenges the trial court's ruling as an abuse of discretion.

         {¶ 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. at 3-6).

         {¶ 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, [150] Ohio St.3d [276], [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 ...

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