[Cite as State v. Sharma,
2021-Ohio-3436.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Craig R. Baldwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 20CAC110047
:
ASHUTOSH SHARMA :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware Municipal
Court, Case No. 19TRC14848
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 28, 2021
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
MELANIE TOBIAS SHAWN R. DOMINY
375 South High St. BRYAN A. HAWKINS
Columbus, OH 43215 DOMINY LAW FIRM LLC
7716 Rivers Edge Dr., Suite B
Columbus, OH 43235
Delaware County, Case No. 20CAC110047 2
Delaney, J.
{¶1} Appellant Ashutosh Sharma appeals from the November 3, 2020 Judgment
Entry of the Delaware Municipal Court incorporating the Court’s September 15, 2020
Judgment Entry Denying Defendant’s Motion to Dismiss. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶1} The following facts are adduced from the record of the August 14, 2020
hearing upon appellant’s motion to dismiss and the parties’ Agreed Stipulations for Motion
Hearing filed August 12, 2020. The record of this case is replete with pretrial motions
filed by appellant. The following procedural history addresses only those filings relevant
to the instant appeal.
Appellant’s arrest and invalid breath tests
{¶2} On November 3, 2019, Trooper Patterson of the Ohio State Highway Patrol
arrested appellant for O.V.I. Patterson transported appellant to the Worthington Police
Department for a breath test. Appellant was observed for an additional 20 minutes and
submitted to a second breath test. The second test was also invalid. Patterson’s
statement of facts noted, “At no point during the breath test did [appellant] adhere to the
instructions given to provide a proper test.” T. 17-18.1
{¶3} Appellant was charged by Uniform Traffic Ticket (U.T.T.) with one count of
O.V.I. pursuant to R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree, and one
count of marked lanes pursuant to R.C. 4511.33, a minor misdemeanor. Appellant was
summoned to appear for arraignment on November 8, 2019.
1The trooper’s statement of facts was introduced at the evidentiary hearing as “Exhibit C”
but the record is silent as to whether it was admitted. The trial court accepted Exhibit C
as a statement of facts surrounding the stop and arrest.
Delaware County, Case No. 20CAC110047 3
{¶4} On November 8, 2019, appellant entered a plea of not guilty and filed a
demand for discovery seeking, e.g., “[a]ll video and audio recordings from the facility
where the defendant was taken for booking and other processing, including video from
the BAC room” (emphasis in original).
{¶5} On January 30, 2020, appellant filed a motion to dismiss, asserting appellee
“failed to preserve materially exculpatory evidence or has destroyed potentially useful
evidence in bad faith, resulting in a violation of the defendant’s right to due process of
law.” Specifically, appellant asserted that despite repeated timely requests for “police
station video,” appellee advised that a police station video was destroyed on or about
December 4, 2019. Appellant argued appellee should have “taken steps” to preserve and
obtain the video. Appellee responded with a memorandum in opposition.
{¶6} The motion proceeded to evidentiary hearing.
Facts adduced from the parties’ stipulations: appellant sought BAC video
{¶7} The parties stipulated to the following facts for purposes of the hearing on
appellant’s motion to dismiss.
{¶8} Trooper Patterson of the Ohio State Highway Patrol (OSHP) makes O.V.I.
arrests in, e.g., Delaware County. It is a “regular practice” for troopers to take O.V.I.
arrestees to the Worthington Police station. For O.V.I. arrests in Delaware County,
Patterson delivers “an O.V.I. packet” to the Delaware City Prosecutor’s Office
(“Prosecutor”) via electronic submission, “typically … within a few days of the arrest …
*.”
{¶9} In the instant case, an O.V.I. packet relating to appellant’s arrest was
delivered to the Prosecutor “within a few days” of his arrest on November 3, 2019. The
Delaware County, Case No. 20CAC110047 4
O.V.I. packet included evidence tickets from the BAC Datamaster and Patterson’s
narrative report. The cover page of the O.V.I. packet indicated the test site was 2512, i.e.
the Worthington Police station. Patterson’s narrative stated he took appellant to the
Worthington Police station and appellant “did not adhere to the instructions for the breath
test.”
{¶10} Patterson “is aware” there are video cameras in the Worthington Police
station, including “in the room of the Worthington Police station with the BAC Datamaster.”
{¶11} The Prosecutor’s Office received appellant’s demand for discovery on
November 7, 2019.
{¶12} On November 13, 2019, the Delaware City Prosecutor’s Office received a
letter from appellant’s counsel requesting all video evidence in the case, specifying
“cruiser video, police station video, jail video, body camera video, etc.”
{¶13} The Prosecutor responded to discovery on November 21, 2019, via email
to defense trial counsel.
{¶14} On December 9, 2019, the Prosecutor received a second letter from
defense trial counsel specifically requesting the “Worthington Police station video” in the
instant case (referred to hereafter as the “BAC video”). On that date, the Prosecutor’s
Office asked the Worthington Police Department for any relevant video from the date of
appellant’s arrest, “and was told that the processing room videos are only retained for 30
days.” The next day, the Prosecutor’s Office asked whether any video from appellant’s
arrest was possibly retained.
Delaware County, Case No. 20CAC110047 5
{¶15} On December 23rd, 2019, the Prosecutor advised defense trial counsel via
letter that the BAC video requested from the Worthington Police Department was
destroyed on or around December 4, 2019.
Facts adduced from evidentiary hearing on motion to dismiss: prosecutor’s
actions upon receiving letters
{¶16} The parties’ stipulations referred generally to the “Prosecutor’s Office” and
“the Prosecutor.” The prosecutor assigned to the instant case was Natalia Harris. As of
the date appellant was charged, Harris had worked at the Prosecutor’s Office for
approximately three months and was previously employed as a prosecutor for the city of
Cincinnati.
{¶17} In the Delaware office, Harris was responsible for prosecuting cases from
the entire county of Delaware, in addition to the city of Delaware. She therefore dealt with
different police departments’ policies, procedures, and forms. Some police departments
have video cameras in the rooms in which the BAC machines are kept; others don’t.
Harris was not familiar “off the top of her head” with which departments had cameras and
which did not.
{¶18} Harris testified at the hearing on appellant’s motion to dismiss. In the instant
case, appellant was arrested by the OSHP and was taken to the Worthington Police
Department to perform a breath test and to be processed. Harris had no independent
knowledge whether Worthington had a camera in the BAC room; she learned a camera
existed during the pendency of this case.
{¶19} As of November 2019, her understanding of office protocol was that upon
receipt of a discovery demand, two paralegals responded to the requests. Actions taken
by the paralegals included obtaining evidence such as cruiser videos, when applicable.
Delaware County, Case No. 20CAC110047 6
{¶20} In the instant case, she received a discovery request from defense trial
counsel on November 13, 2019. She also recalled that she received two letters from
counsel, although she was uncertain of the dates. Upon receipt of the first letter, she put
it on her desk. In the meantime, paralegals addressed the discovery demand. Harris
received a second letter from defense trial counsel approximately four weeks later.
{¶21} The trial court overruled appellant’s motion to dismiss via judgment entry
dated September 15, 2020.
{¶22} On November 3, 2020, appellant withdrew his pleas of guilty and entered
pleas of no contest to the charges of O.V.I. and marked lanes. Appellant was sentenced
to, e.g., 180 days in jail with 177 suspended on the condition that he completes a Driver
Intervention Program.
{¶23} Appellant now appeals from the judgment entry of his conviction and
sentence, incorporating the trial court’s decision overruling his motion to dismiss.
{¶24} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶25} “THE TRIAL COURT ERRED BY OVERRULING DEFENDANT-
APPELLANT’S MOTION TO DISMISS.”
ANALYSIS
{¶26} Appellant argues the trial court should have dismissed the case against him
because the prosecutor allegedly failed to respond to a discovery request in good faith,
resulting in destruction of evidence. Appellant argues appellee, specifically the
prosecutor, violated his due process rights by failing to preserve the BAC video in bad
faith. We disagree.
Delaware County, Case No. 20CAC110047 7
{¶27} Due process guarantees fundamental fairness in the trial of a criminal
defendant. Lisenba v. California, 314 U.S. 219,
62 S.Ct. 280,
86 L.Ed. 166 (1941). In
Arizona v. Youngblood,
488 U.S. 51,
109 S.Ct. 333,
102 L.Ed.2d 281 (1988), the United
States Supreme Court addressed the issue of whether a criminal defendant is denied due
process of law by the State's failure to preserve evidence: “The Due Process Clause of
the Fourteenth Amendment … makes the good or bad faith of the State irrelevant when
the State fails to disclose to the defendant material exculpatory evidence. But we think
the Due Process Clause requires a different result when we deal with the failure of the
State to preserve evidentiary material of which no more can be said than that it could
have been subjected to tests, the results of which might have exonerated the defendant.
….”
Id. at 57-58.
The BAC video was “potentially useful”
{¶28} The Youngblood Court therefore established two tests: one that applies
when the evidence is “materially exculpatory” and one that applies when the evidence is
“potentially useful.” State v. Doup, 5th Dist. Knox No. 08 CA 13, 2009-Ohio-117, ¶ 9. If
the State fails to preserve evidence that is materially exculpatory, the defendant's rights
have been violated. If, on the other hand, the State fails to preserve evidence that is
potentially useful, the defendant's rights have been violated only upon a showing of bad
faith.
Id., citing State v. Scurlock, 5th Dist. Licking No. 05-CA-116,
2006-Ohio-4445, ¶ 29.
{¶29} The burden of proof is on the defendant to show the exculpatory nature of
destroyed evidence. Doup, 2009-Ohio-117, ¶ 10, citing State v. Birkhold, 5th Dist. Licking
No. 01 CA104,
2002-Ohio-2464; State v. Hill, 5th Dist. Stark No.1998CA00083,
1999 WL
174921 (March 8, 1999). To be materially exculpatory, evidence must at least “ …
Delaware County, Case No. 20CAC110047 8
possess an exculpatory value that was apparent before the evidence was destroyed …
*.”
Id., citing State v. Colby, 11th Dist. Portage No. 2002-P-0061,
2004-Ohio-343, ¶ 11,
quoting California v. Trombetta,
467 U.S. 479, 489,
104 S.Ct. 2528,
81 L.Ed.2d 413
(1984).
{¶30} Evidence is materially exculpatory “‘only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different. A “reasonable probability” is a probability sufficient to undermine
confidence in the outcome.’ ” State v. Johnston, 39 Ohio St.3d 48, 61,
529 N.E.2d 898
(1988), quoting United States v. Bagley,
473 U.S. 667, 682,
105 S.Ct. 3375,
87 L.Ed.2d
481 (1985). Mere speculation does not meet the accused's burden to show that the
withheld evidence is material. State v. Qirat, 5th Dist. Licking No. 14-CA-72, 2015-Ohio-
863, ¶ 41, citing State v. Davis,
116 Ohio St.3d 404,
2008-Ohio-2,
880 N.E.2d 31, at ¶
339; State v. Rivas,
121 Ohio St.3d 469, 2009–Ohio–1354,
905 N.E.2d 618, ¶ 14; State
v. Jackson,
57 Ohio St.3d 29, 33,
565 N.E.2d 549 (1991), quoting United States v. Agurs
427 U.S. 97, 109–110,
96 S.Ct. 2392,
49 L.Ed.2d 342 (1976) (“‘The mere possibility that
an item of undisclosed information might have helped the defense, or might have affected
the outcome of the trial, does not establish ‘materiality’ in the constitutional sense'”).
{¶31} We note that before the trial court, appellant conceded the evidence is
potentially useful. Appellant described the destroyed BAC video as “potentially useful for
multiple reasons:”
….
In the instant case, the destroyed police station video is
potentially useful. The police station video is potentially useful for
Delaware County, Case No. 20CAC110047 9
multiple reasons. First, the video would be objective evidence of
whether [appellant] appeared to be under the influence as he
interacted with law enforcement officers and took the breath test.
Second, the video would show whether the officers engaged in a 20-
minute observation period before the breath tests. Third, the video
would show whether [appellant] was properly instructed on how to
take the breath test. Fourth, the video would show whether
[appellant] failed to adhere to the instructions, as alleged by the
arresting officer.
….
Motion to Dismiss, Jan. 30, 2020, 3.
{¶32} Even as described by appellant, therefore, the BAC video is potentially
useful at best, possibly as a basis to challenge the credibility of the officers’ observations
of appellant or to contrast appellant’s performance at the traffic stop with his behavior
later in the BAC room. By appellant’s own characterization of the missing video, if it
satisfied every detail contemplated by appellant, the tape would not have a reasonable
probability of affecting the outcome of trial because it would have scant relevance to the
critical issue whether appellant was under the influence at the time he operated the motor
vehicle.
The prosecutor did not act in bad faith
{¶33} As noted earlier, appellant conceded before the trial court that the BAC
video is potentially useful. Motion to Dismiss, Jan. 30, 3030, 3. See, Youngblood, supra,488 U.S. 51, 57 (1988) (potentially useful evidence is that “which no more can be said
Delaware County, Case No. 20CAC110047 10
than that it could have been subjected to tests, the results of which might have exonerated
the defendant.”). As previously recited, the State's failure to preserve “potentially useful”
evidence violates a defendant's due process rights only when the police or prosecution
act in bad faith.
Doup, supra, at ¶ 13, citing State v. Lewis,
70 Ohio App.3d 624, 634,
591
N.E.2d 854 (4th Dist.1990).
{¶34} The term “bad faith” generally implies something more than bad judgment
or negligence. “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. It also embraces actual intent to mislead or deceive another.” Doup, supra, citing
Hoskins v. Aetna Life Ins. Co.,
6 Ohio St.3d 272, 276,
452 N.E.2d 1315 (1983) , internal
citation omitted.
{¶35} It is the defendant who bears the burden of demonstrating bad faith on the
part of the State for the destruction of the potentially useful evidence. Id., citing State v.
Geeslin,
116 Ohio St.3d 252, 254,
2007-Ohio-5239,
878 N.E.2d 1. When a defendant
does not meet his burden of demonstrating bad faith on the part of the State, then the
failure to preserve potentially useful evidence is not a violation of due process.
Id.
{¶36} We have reviewed the record of the evidentiary hearing, including the
testimony of the prosecutor, and found nothing rising to the level of bad faith. Appellant
points to the prosecutor’s failure to timely request and secure the BAC video, arguing, “*
… [T]he definition of bad faith in the context of this case is the failure to respond in good
faith and with reasonable diligence to a specific discovery demand.” Brief, 22. The term
“bad faith,” though, generally implies something more than bad judgment or negligence.
State v. Canter, 5th Dist. Fairfield No. 01 CA 51, 2002-Ohio-3473, ¶ 13. “It imports a
Delaware County, Case No. 20CAC110047 11
dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty
through some ulterior motive or ill will partaking of the nature of fraud. It also embraces
actual intent to mislead or deceive another.”
Id., citing Hoskins v. Aetna Life Ins. Co.,
6
Ohio St.3d 272, 276,
452 N.E.2d 1315 (1983), internal citation omitted.
{¶37} We agree with the trial court’s finding that the prosecutor did not act in bad
faith. Although the first letter from defense trial counsel was overlooked and/or the
prosecutor misunderstood the office procedure for obtaining evidence, we find the record
devoid of evidence of a dishonest purpose or intent to deceive or ulterior motive.
We reject appellant’s burden-shifting analysis
{¶38} We have already noted that before the trial court, appellant conceded the
evidence was potentially useful, and argued the prosecutor acted in bad faith in failing to
act to preserve the BAC video. On appeal, appellant's argument in support of its claim of
bad faith is based on the decision of the Tenth District Court of Appeals in State v. Forest,
36 Ohio App.3d 169,
522 N.E.2d 52 (10th Dist.1987). In Forest, the court of appeals
shifted the burden to the State under certain circumstances and held as follows:
Normally, … it is the accused who bears the burden of proof
on both the exculpatory value of the evidence and that the evidence
cannot be obtained by other reasonable methods. Id. at 489-490, 522
N.E.2d 52,
104 S.Ct. at 2534. Where … the state breaches its duty
to respond in good faith to a defense request to preserve evidence,
we believe the appropriate remedy is to shift to the state the burden
of proof as to the exculpatory value of the evidence. See 2 LaFave
Delaware County, Case No. 20CAC110047 12
& Israel, Criminal Procedure (1984, Supp.1987), Section 19.5, at
107, fn. 65.5.
City of Columbus v. Forest, 36 Ohio App.3d 169, 173,
522
N.E.2d 52 (10th Dist.1987).
{¶39} As appellant acknowledges, however, this Court has consistently rejected
the holding in Forest and held that the burden of proof is and remains on the defendant
to show the exculpatory nature of the destroyed evidence. See, e.g., State v. Birkhold,
5th Dist. Licking No. 01CA104, 2002 WL 727154 (April 22, 2002); State v. Hill, 5th Dist.
Stark No. 1998CA00083,
1999 WL 174921 (March 8, 1999); State v. Antonellis, 5th Dist.
Licking No. 2005-CA-31,
2005-Ohio-5381, ¶ 10; State v. Combs, 5th Dist. Delaware No.
03CA-C-12-073,
2004-Ohio-6574, ¶ 19. We find no reason to depart from precedent in
the instant case.
{¶40} Appellant also argues the instant case is analogous to State v. Anderson,
1st Dist. Hamilton No. C-050382, 2006-Ohio-1568, ¶ 13. In that case, the defense filed
a motion to preserve a video from the police station; the prosecutor took no action to
preserve the video and it was destroyed in accord with department policy. The First
District Court of Appeals found that where the defendant moves to have evidence
preserved and the state destroys the evidence, the burden shifts to the state to show the
solely inculpatory value of the evidence. Id. at ¶ 11. We disagree that Anderson is
analogous to the instant case because, as the trial court noted, appellant did not file a
motion to preserve the BAC video. Nor was any court order issued to preserve the video.
{¶41} Instead, defense trial counsel sent the prosecutor two letters seeking the
BAC video. We decline to speculate on circumstances that aren’t present here, but a
Delaware County, Case No. 20CAC110047 13
motion and order to preserve evidence would of course be of greater import to the
prosecutor’s duty to act in good faith than a letter from defense counsel which is noticed
too late.
{¶42} We hold, therefore, that the destroyed evidence was neither materially
exculpatory nor that the destruction of the potentially useful BAC video was in bad faith.
The trial court's denial of appellant's motion to dismiss was therefore not in error.
CONCLUSION
{¶43} Appellant’s sole assignment of error is overruled and the judgment of the
Delaware Municipal Court is affirmed.
By: Delaney, J.,
Baldwin, P.J. concurs.
Hoffman, J., concurs separately.
Delaware County, Case No. 20CAC110047 14
Hoffman, J., concurring
{¶44} I concur in the judgment reached by the majority under the facts of this
case. However, I think this Court should consider adopting the burden shifting analysis
of City of Columbus v. Forest, 36 Ohio App.3d, 169, 522 N.E.2nd 52 (10th Dist. 1987), as
apparently the majority of appellate districts in our state have done.
