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City of Cleveland v. Mercer

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 6, 2019

CITY OF CLEVELAND, Plaintiff-Appellant,
v.
SETH MERCER, Defendant-Appellee.

          Criminal Appeal from the Cleveland Municipal Court Case No. 2018 TRC 015281

          Barbara Langhenry, City of Cleveland Law Director, and Nicholas Kolar, Assistant Law Director, for appellant

          Samuel W. Basta, for appellee.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.

         {¶ 1} The city of Cleveland ("the city") brings the instant appeal challenging the trial court's order dismissing a complaint against defendant-appellee, Seth Mercer ("appellee"). More specifically, the city argues that the trial court abused its discretion in granting appellee's motion to suppress because appellee did not file a motion to suppress. After a thorough review of the record and law, this court dismisses the city's appeal.

         I. Factual and Procedural History

         {¶ 2} On May 19, 2018, appellee was arrested for operating a vehicle under the influence ("OVI") by Trooper Spade of the Ohio State Highway Patrol ("OSHP"). Appellee was ultimately charged in a complaint in the Cleveland Municipal Court with two counts of OVI and one count of failure to control. On May 24, 2018, appellee entered a plea of not guilty. Thereafter, a first pretrial hearing was scheduled for June 11, 2018.

         {¶ 3} Prior to the first pretrial hearing, on June 4, 2018, appellee's counsel filed a motion to preserve evidence and a demand for discovery. The first pretrial hearing was continued at appellee's request and rescheduled to July 11, 2018. It appears that a pretrial hearing was held on July 11, and on the trial court's order, the matter was continued to August 14, 2018, for a motion to suppress hearing. On August 14, 2018, the city requested a continuance on the motion to suppress hearing and the trial court granted this request. The trial court specifically noted in its journal entry on August 14, 2018, that a "final continuance [is] granted." In its journal entry granting the continuance, the trial court also included an order stating that "failure to produce [the] CD by [August 17] will result in sanctions. Additionally, [Trooper Spade's] failure to appear at [the] next hearing will result [in] a sanction." The matter was then rescheduled to September 5, 2018, for the motion to suppress hearing.

         {¶ 4} On August 30, 2018, appellee filed a "motion for dismissal and/or in the alternative motion for sanctions pursuant to the court['s] order as stated on the record." The city did not file a response to appellee's motion. At issue, at least with regard to the continuances, was that OSHP had lost the dashcam video that was associated with appellee's May 19, 2018 arrest. The city indicated in its appellate brief that on "June 12, 2018, after an extensive search for the video, the [c]ity was informed that the video never existed because [OSHP] had a problem with the server on the date of the OVI arrest and the video was not available. On August 14, 2018, [appellee] was informed why the video did not exist." City's appellate brief at 4-5. The prosecutor assigned to the instant case sent appellee's counsel an email on August 14, 2018, which indicated that the dashcam "video was lost in the system so there is no video available."

         {¶ 5} On September 5, 2018, the trial court reflecting on the continuances that it had previously granted noted that

the reason why this is continued at the [city's] request, on September the fifth. It was scheduled originally August the 14th at 1:30 [p.m.] for [a] Motion to Suppress. There is - at that time [appellee] was given the occupational privileges but I don't believe that I made the notation. I don't know if they were subpoenaed any other time but the [c]ourt did make it clear, I know that he had failed to appear. It showed that he failed to appear the last time, correct? I'm sure that's why I did the notation. It was not the CD nor was the officer present.

(Tr. 3.) Thereafter, appellee's counsel made, in essence, an oral motion to renew his previously filed motion to dismiss. The city objected to the motion. The following exchange then occurred between the trial court, the city prosecutor, and appellee's counsel:

THE COURT: Okay. So noted. Is the prosecution ready to go forward on the Motion to Suppress. We can make a record. Is the Prosecution ready to go ...

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