[Cite as State v. Williams,
2023-Ohio-3526.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2022-P-0053
CITY OF RAVENNA,
Plaintiff-Appellant, Criminal Appeal from the
Municipal Court, Ravenna Division
- vs -
MATTHEW E. WILLIAMS, Trial Court No. 2019 TRD 15327 R
Defendant-Appellee.
OPINION
Decided: September 29, 2023
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).
Michael A. Partlow, P.O. Box 1562, Stow, OH 44224 (For Defendant-Appellee).
EUGENE A. LUCCI, J.
{¶1} Appellant, the state of Ohio/city of Ravenna, appeals the judgment of the
Portage County Municipal Court, Ravenna Division, dismissing an indictment filed by the
Portage County Grand Jury based upon spoliation of evidence. For the reasons
discussed in this opinion, we affirm.
{¶2} On June 24, 2019, at approximately 6:00 p.m., Trooper Megan Faith,
Trooper Brian Cannon, and Sergeant Mace of the Ohio State Highway Patrol responded
to an accident at the intersection of Old Forge Road and Sunnybrook Road in Brimfield
Township, Portage County, Ohio. Appellee, Matthew E. Williams, was driving a 2019
Honda CR-V. Tyler Jagiela was operating a 1980 Yamaha SR 250G motorcycle (the
“motorcycle”) and Sabrina Palmer, the motorcycle’s owner, was a passenger on the bike.
As appellee was making a left turn onto Sunnybrook Road, the CR-V was struck on the
passenger side by the motorcycle. The accident resulted in the death of Mr. Jagiela and
injury to Ms. Palmer.
{¶3} Trooper Faith processed the scene of the accident, taking photographs,
taking measurements, and speaking with witnesses. Trooper Cannon reviewed the
scene, taking photos and forensically mapping it for accident reconstruction purposes.
{¶4} The motorcycle was towed from the accident scene by a towing company,
Complete Towing, at the request of the Ohio State Highway Patrol. The state asserted
there was no hold placed on the motorcycle because, according to Troopers Faith and
Cannon, after processing the scene, they did not need the bike for assistance in further
accident reconstruction. Although the troopers testified no hold was on the motorcycle,
the state and defense stipulated that the vehicle remained at Complete Towing from June
24, 2019 until March 5, 2020.
{¶5} The CR-V was towed from the accident scene by a different towing
company, John’s Towing. The record indicates, the State Patrol placed a verbal hold on
the CR-V, but released the vehicle on July 31, 2019.
{¶6} On July 22, 2019, counsel for appellee sent a formal email to Victor V.
Vigluicci, the Prosecuting Attorney for Portage County. The email acknowledged that
both vehicles involved in the accident may have been “released” by the Highway Patrol.
Counsel, however, requested the prosecutor’s office to take the steps necessary to
preserve the motorcycle. Counsel asserted that appellee “would likely want an
2
Case No. 2022-P-0053
independent examination of the subject vehicle.” The correspondence concluded by
providing Mr. Vigluicci with the pertinent facts relating to the accident, including the date,
location, responding police agencies, the decedent’s name, the motorcycle’s make and
model, as well as the motorcycle’s vehicle identification number and license plate number.
Nothing in the record indicates the state acknowledged or responded to the preservation
letter.
{¶7} Appellant was subsequently indicted on November 4, 2019 and charged
with vehicular homicide, a first degree misdemeanor; vehicular manslaughter, a second
degree misdemeanor; negligent assault, a third degree misdemeanor; and failure to yield,
a minor misdemeanor. The motorcycle was eventually released in March 2020, partially
disassembled.
{¶8} At a pretrial hearing on September 8, 2020, the following exchange took
place between the trial court, the prosecutor, and defense counsel:
THE COURT: I got to ask a question, by the way. Where is
the motorcycle?
[Prosecutor]: So we were able to track it down and I would -
- first, for the record, the motorcycle was ordered released
within three days of the incident by O.S.P. The letter written
by Mr. Conway [defense counsel] I believe was dated July
22nd, which was a little over a month after the incident and
about a month from the time the motorcycle was released.
Once the motion for spoliation was filed, we sent investigators
out to try to locate the motorcycle for Mr. Conway. We weren’t
able to do so. I have pictures. I told Mr. Conway this morning
I have pictures of it. We were able to locate it Thursday
afternoon, late Thursday afternoon. The motorcycle is on the
property of the parents of the decedent. It’s on a back part of
the property. It’s in a barn I guess, for lack of [a] better term,
back there. If Mr. Conway would like to go inspect it, the State,
of course, would have no objection. I don’t know what the
evidentiary value of that would be having it been - - having
3
Case No. 2022-P-0053
some chain of custody issues. But if you’d like to go look at
the motorcycle the State has no issue with that.
THE COURT: Are you telling me that this allegedly occurred
on June 24th, ’19. On June 27th, ’19 that motorcycle was
released to the decedent’s family? Three days later?
[Prosecutor]: Trooper Cannon said within three days. He’s
here to testify to that fact. But he said it’s - - he’s here. He’ll
testify that in these sort of cases they take pictures that we
then give to the defendant. That they inspect the motorcycle
and then within three days it’s common practice for O.S.P to
release the motorcycle.
THE COURT: Yeah.
[Prosecutor]: He said usually it’s the next day, but he can’t
say for sure in this case it was the next, but it was certainly
within three days.
THE COURT: They probably ought to change that policy. But
- - but let –
…
THE COURT: When the prosecutor got this letter July - -
dated July 22nd, ’19 from Thomas Conway, Attorney, so I’m
guessing he probably got it maybe - - I don’t know if the mail
- - was the mail running slow then? Maybe not. It’s running
slow now. That’s what they all say. So say he got this letter
three or four days later on July 26th, ’19. Did the prosecutor
or your office then call up the State trooper and say, “Hey get
the motorcycle back. This gentleman, Mr. Conway wants to
have an expert take a look at it.” I assume the answer to that
is no?
[Prosecutor]: I don’t know the answer to that, but I know the
motorcycle was already gone by that point.
THE COURT: But I don’t understand. Do you understand or
can you explain why once this letter was received by the
Portage County Prosecutor’s Office that a phone call wouldn’t
have been made to the trooper and say, “Hey, we need - - this
- - this motorcycle can’t sit in a barn somewhere. We need
this thing back.”
4
Case No. 2022-P-0053
[Prosecutor] Well, the motorcycle was already released, so
out of our control at that point.
THE COURT: No. I know. But why wouldn’t you make - -
wouldn’t your office not make a phone call to say, “Hey, we
want it back in our control. Go get the thing.” No? Can you
explain why it didn’t happen, I guess?
[Prosecutor]: Well, once the motorcycle is released we can’t
say for sure if it’s been altered or not, so it creates evidentiary
issues.
THE COURT: Right. Of course. O.K. Now you get a chance
to respond ….
MR CONWAY: In regards to the motorcycle, as this Court
accurately points out, the letter I sent to the County Prosecutor
was sent out on 7/22/19. The indictment in this case, Judge,
didn’t get reported out until November 4th, 2019.
THE COURT: That’s correct.
MR CONWAY: And from the time I wrote the letter to date, I
have been formally and informally inquiring about the
motorcycle. Formally when I wrote the prosecutor a letter.
Informally in this Court since this case has begun I’ve had
conversations with the prosecutor and I’ve sent a letter to the
prosecutor.
To that effect, on May 8th, 2020, Judge Fankhauser, I want
you to know that I wrote a letter to the Assistant Prosecutor in
this case. And it said, “pursuant to your request of March 3rd,
2020, I emailed you a copy of a letter I emailed to Prosecutor
Vic Vigluicci dated July 22, 2019 regarding the above-referenced matter. Said letter contained detailed information
regarding the accident associated with this case number. The
singular purpose of said letter was to request the State to take
the necessary steps to preserve the motorcycle driven by one
of the victims in the above-referenced matter. Upon receipt
of this correspondence, please advise the undersigned of the
status subject of the motorcycle. So the letter in July of 2019.
Another letter that references a - - a March 3rd date where we
had an oral conversation about it. And a letter dated May 8th,
still not knowing anything about the motorcycle.
5
Case No. 2022-P-0053
This Honorable Court ought to know the first time I found this
news about the fact that the motorcycle was supposedly
turned over, before I wrote the letter, was Friday of last week
on a spoliation response motion. So what is that? That’s July
to July is 12.
…
MR CONWAY: Thirteen or fourteen months later. That’s the
history of the motorcycle and the - - and this morning in a
crevice in the side of the court hallway I learned that it’s been
stowed away at someone related to the driver of the vehicle
or someone related to the passenger of the vehicle at their
house and that pieces and parts have been removed to
include, I believe I was told, the handlebars and/or front fork
was removed and the State felt sure that it had not sat
protected and that’s where it’s at. The whereabouts of which
I still don’t know on the 8th day of September, 2020.
{¶9} The matter was set for a hearing regarding which party had the burden of
proof for purposes of the hearing on spoliation of evidence. After the hearing, the trial
court issued a judgment entry concluding the burden shifted from appellee to the state
to demonstrate the destroyed evidence was not materially exculpatory. In support, the
court initially observed that the Ohio State Highway Patrol failed to follow its written policy
as it relates to disposal of evidence/recovered property. The trial court also found that a
defense motion requesting a court order to preserve the evidence and not release the
motorcycle was unnecessary to put the state on notice; instead, the court determined,
defense counsel’s letter was sufficient.
{¶10} The court further found that the evidence demonstrated the state lost track
of or misplaced the motorcycle for several months, and it was eventually found on
September 3, 2020. The court also found the motorcycle was not in substantially the
same condition on September 3, 2020 as it was when it was released from the scene on
June 24, 2019. And the court determined the circumstances could have been avoided if
6
Case No. 2022-P-0053
the state and the Ohio State Highway Patrol followed procedures put in place as it relates
to evidence and recovered property.
{¶11} Appellee’s motion to dismiss for spoliation proceeded to hearing. After
receiving evidence, the trial court determined that the area of the incident was a crime
scene and the Ohio State Highway Patrol erred in treating the vehicles involved as
“recovered property” rather than potential evidence of a crime. The court found that the
motorcycle was potentially useful to appellee’s defense and the state’s justifications for
failing to place a hold on the evidence, when appellee’s liberty is at risk, were neither
persuasive nor sufficient. In light of its findings, the court concluded appellee’s due-
process right to prepare a defense to the charges was significantly compromised. As a
result, the trial court granted the motion to dismiss. This state’s appeal now follows.
{¶12} The state assigns the following as error:
{¶13} “The trial court erred by dismissing the charges against Mr. Williams based
on an allegation of spoliation of evidence.”
{¶14} A trial court’s ruling on a pretrial motion to dismiss a criminal indictment is
subject to a mixed standard of review. See State v. Clemons, 4th Dist. Highland No.
12CA9, 2013-Ohio-3415, ¶ 6 (“Appellate review of a trial court’s decision regarding a
motion to dismiss involves a mixed question of law and fact.”). We review a trial court’s
legal conclusions in ruling on a pretrial motion to dismiss criminal charges de novo. State
v. Frasure, 11th Dist. Ashtabula No. 2007-A-0033,
2008-Ohio-1504, ¶ 35; see also State
v. Wilson, 10th Dist. Franklin No. 13AP-205,
2013-Ohio-4799, ¶ 4. However, “[w]e accord
due deference to the trial court’s findings of fact if supported by competent, credible
evidence[.]” Clemons at ¶ 6; accord Frasure.
7
Case No. 2022-P-0053
{¶15} The Due Process Clause of the Fourteenth Amendment to the United States
Constitution protects a criminal defendant from being convicted when the State either fails
to preserve materially exculpatory evidence or fails to preserve, in bad faith, potentially
useful evidence. See, e.g., State v. Glenn, 11th Dist. Lake No. 2015-L-029, 2015-Ohio-
4832, ¶ 32-34 . Accordingly, “the suppression of exculpatory evidence that is material to
guilt or punishment violates due process without respect to whether the state acted in bad
faith.” (Emphasis sic.) State v. Jalowiec, 2015-Ohio-5042,
52 N.E.3d 244, ¶ 48 (9th Dist.).
When the state, however, fails to preserve evidence that is merely “potentially useful,” a
criminal defendant must demonstrate that the state acted in bad faith. Arizona v.
Youngblood,
488 U.S. 51, 58,
109 S.Ct. 333,
102 L.Ed.2d 281 (1988); see also State v.
Geeslin,
116 Ohio St.3d 252,
2007-Ohio-5239,
878 N.E.2d 1, ¶ 9-10.
{¶16} “Evidence is ‘materially exculpatory’ if it (1) possesses ‘an exculpatory
value that was apparent before the evidence was destroyed’ and (2) is ‘of such a nature
that the defendant would be unable to obtain comparable evidence by other reasonably
available means.’” State v. McClain, 2016-Ohio-838,
60 N.E.3d 783, ¶ 21, (2d Dist.),
quoting California v. Trombetta,
467 U.S. 479, 489,
104 S.Ct. 2528,
81 L.Ed.2d 413
(1984). Alternatively, “[p]otentially useful evidence indicates that the evidence may or may
not have incriminated the defendant.” State v. Durnwald,
163 Ohio App.3d 361, 2005-
Ohio-4867,
837 N.E.2d 1234, ¶ 30 (6th Dist.). To properly consider the import of the
destruction of potentially useful evidence, we underscore that “‘[t]he term ‘bad faith’
generally implies something more than bad judgment or negligence.’” State v. Powell,
132 Ohio St.3d 233,
2012-Ohio-2577,
971 N.E.2d 865, ¶ 81, citing State v. Tate, 5th Dist.
Fairfield No. 07CA55,
2008-Ohio-3759, ¶ 13. “‘“It imports a dishonest purpose, moral
8
Case No. 2022-P-0053
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.”’” Powell, quoting Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 276,
452
N.E.2d 1315 (1983), quoting Slater v. Motorists Mut. Ins. Co., 174 Ohio St 148,
187
N.E.2d 45 (1962), paragraph two of the syllabus.
{¶17} As noted above, the trial court found that the motorcycle could have
provided potentially useful evidence to appellee’s defense. By implication, the court
determined the motorcycle and the evidence that could be gleaned from a defense
expert’s testing was not inherently exculpatory. Hence, pursuant to the above standards,
appellee was required to establish the state acted in bad faith when it failed to place a
hold on the motorcycle and preserve the evidence. The state maintains appellee failed
to meet this burden and the trial court erred in dismissing the charges because its
judgment was premised upon the conclusion that the state failed to act in good faith, a
different, lower standard than proof that the state acted in bad faith.
{¶18} In support of its judgment, the trial court first concluded that the troopers on-
scene failed to follow the formal policy relating to the recovery of evidence. The court
determined that Ohio State Patrol policy 103.07, captioned “Evidence Control” governed
the instant case. Subsection (F) specifically provides:
DISPOSAL OF EVIDENCE/RECOVERED PROPERTY –
The final disposition of all recovered and evidentiary property
shall be determined within six months after all legal
requirements have been satisfied. Evidence shall not be
disposed of until after prosecution and proper disposition of
the case by the court. The evidence may then be included in
the next application for disposal submitted to the applicable
court. All other property shall be held for a minimum of six
months before it is included in the disposal application
9
Case No. 2022-P-0053
submitted to the court. The disposition of all property shall be
noted in the report of investigation.
{¶19} It is not entirely clear whether the above policy for disposal of evidence
applies to this matter. This court has previously examined the language of this provision
and stated:
A close reading of the Ohio Highway Patrol policy mandates
that evidence be kept for a minimum of six months until “after
prosecution and proper disposition of the case by the court.”
This language, while somewhat ambiguous, implies that there
must be a criminal case initiated in the first place, which was
not the case here. Furthermore, contrary to what this policy
states, troopers testified that they followed the normal
procedure of conducting a crash investigation and disposing
of vehicles.
(Emphasis added.) Frasure, 2008-Ohio-1504, at ¶ 70.
{¶20} In this matter, the incident report provides that “Sgt. Mace notified Ravenna
County Prosecutor Lewandowski about the crash on scene. Charge will be compiled
once lab results are complete.” (Emphasis added.) No charges or prosecution had been
initiated at the time the motorcycle was released. A prosecution was not initiated against
appellee until November 2019. In this respect, the release of the motorcycle at the scene
(or three days later) might not trigger the “evidentiary” timeframe set forth in the policy.
{¶21} Still, the policy also speaks to “[a]ll other property” which “shall be held for
a minimum of six months before a disposal application is submitted to the court.” Even if
the motorcycle was not immediately treated as “evidence,” it was “other property.” And
the policy implies that other property must be held for a minimum of six months at which
point an application for disposal would be submitted to the court. The motorcycle was
“released,” at the latest, three days after the incident, and there is no evidence a disposal
application was filed with the court. This is problematic and ostensibly represents a direct
10
Case No. 2022-P-0053
violation of Ohio State Highway Patrol policy. We cannot, however, conclude the
violation, in this context, meets the heightened definition of “bad faith.”
{¶22} With this in mind, at the spoliation hearing, Trooper Faith testified the on-
scene highway patrol accident reconstructionist bears the responsibility for determining
whether a hold will be placed on the vehicles involved. Because Trooper Faith was the
primary investigating officer, she asked Trooper Cannon, the accident reconstructionist
for the Ohio State Patrol on scene, if the vehicles required a hold to be placed upon them.
Trooper Cannon responded in the negative.
{¶23} Trooper Faith further testified that if no hold is placed on evidence or
property, the Ohio State Highway Patrol has no control over the same. When asked, on
cross examination, why Subsection (F) was not followed in this case, Trooper Faith stated
that the motorcycle was not “seized evidence.” Yet, upon further questioning, Trooper
Faith qualified her testimony, stating that even though it was not “seized evidence,” the
motorcycle was actually “evidence of the crash.” Nevertheless, she remained firm that
no hold was placed on the motorcycle.
{¶24} Trooper Cannon testified he did not order a hold on the motorcycle. He also
echoed Trooper Faith’s testimony that once the vehicles were towed from the scene
without a hold, the state patrol has no control over them. Trooper Cannon also testified
that the motorcycle was classified by the state patrol as “abandoned hazardous.” The
trooper conceded that designating property as abandoned hazardous requires a trooper
to fill out a “HP-25-D” vehicle-inventory form. Trooper Cannon testified that he never
observed the form as it related to the motorcycle, and could not comment on whether
such a form was ever filed.
11
Case No. 2022-P-0053
{¶25} On cross-examination, Trooper Cannon recognized that, at a previous
hearing, the prosecutor in the case notified him that defense counsel had re-sent the July
2019 preservation letter to the prosecutor on March 3, 2020. Pursuant to this notification,
Trooper Cannon visited Complete Towing on March 5, 2020 and found out the company
still had the motorcycle in their lot. In particular, Trooper Cannon stated “[t]hey did
mention having the motorcycle and I asked them if they - - why they still had it essentially.
They asked if there’s a hold. I said there’s not, - - I asked them why it was there. They
don’t - - they don’t have a hold on the vehicle.” (Emphasis added.) The motorcycle was
ultimately released to a private party on that date.
{¶26} Trooper Cannon attempted to walk back his previous testimony at the
spoliation hearing, claiming Complete Towing was referring to motorcycles or vehicles
without holds on them in general. In other words, he claimed the former testimony was
not referring to the motorcycle at issue in this matter, but to any motorcycle that the towing
company might have retained without a hold. The context of the exchange, however,
strongly militates against his qualification. The trial court did not find the trooper’s
testimony attempting to qualify his previous statements credible and we must defer to its
findings in that regard.
{¶27} It is unclear why, if Trooper Cannon was in fact aware that the motorcycle
was in the lot on March 5, 2020, he did not then place a hold on the vehicle. This is
especially true because appellee had already been indicted and, in light of the evidence,
he was aware that defense counsel sought preservation of the vehicle. He further
testified, when Subsection (F) was read to him by defense counsel, that he was familiar
with the provision. Pursuant to Subsection (F), even if the motorcycle was not initially
12
Case No. 2022-P-0053
“evidence” (in the technical sense of the policy), the trooper should have placed a hold
on the motorcycle at that point and his failure to do so amounts to conscious wrongdoing
in violation of the then applicable policy as well as a fundamental breach of common
standards of justice and fair play.
{¶28} Moreover, “[p]rosecutors have ‘a duty to learn of any favorable evidence
known to the others acting on the government’s behalf in the case, including the police.’”
(Emphasis original.) State v. Sanders, 92 Ohio St.3d 245, 261,
750 N.E.2d 90 (2001),
quoting Kyles v. Whitley,
514 U.S. 419, 437,
115 S.Ct. 1555,
131 L.Ed.2d 490 (1995).
When Trooper Cannon visited Complete Towing on March 5, 2020, the prosecutor should
have communicated with him to “learn of any favorable evidence” he may have
uncovered, viz., the motorcycle. The record fails to reflect this occurred. Indeed, not until
the motion to dismiss for spoliation was filed did the prosecutor’s investigator determine
the motorcycle’s location. This could be reasonably construed as a breach of a duty to
learn of the potentially useful evidence which undermined appellee’s due-process right to
prepare a full defense.
{¶29} As noted above, bad faith envelops various levels of culpability that
transcend bad judgment or negligence; it embraces “conscious wrongdoing” as well as
the breach of a known duty through some ulterior motive. The evidence supports the
conclusion that the trooper, with knowledge of the request for preservation as well as the
motorcycle’s location, did not place a hold on the vehicle and permitted its release to a
third party. This reasonably rises to the level of conscious wrongdoing. And, to
compound this, even though the prosecutor may not have exhibited a nefarious ulterior
motive, his failure to learn what the trooper discovered can be reasonably viewed as a
13
Case No. 2022-P-0053
breach of a known duty. With these points in mind, and recognizing the trial court
improperly framed the standard in terms of a lack of good faith, we maintain there was
sufficient evidence to support a legal finding of “bad faith.”
{¶30} Notwithstanding the foregoing conclusion, the state argues that appellee
was aware that the motorcycle was in the possession of a third party. The state contends
the record fails to reflect what steps appellee took to determine where the motorcycle was
located. In this respect, the state argues appellee was relying on the state to obtain
evidence that he arguably could have obtained on his own. We do not agree.
{¶31} This court has previously observed that “‘it is not the responsibility of the
state to obtain evidence that the defendant can obtain on his own.’” State v. Dinardo, 11th
Dist. Lake No. 2013-L-108, 2015-Ohio-1061, ¶ 25, quoting State v. Franklin, 2d Dist.
Montgomery No. 19041,
2002-Ohio-2370, ¶ 52. In Dinardo, however, the defendant had
equal access, pursuant to the state’s open discovery policy, to a 911 recording. As such,
this court pointed out that the state did not have to produce the evidence to the extent it
was available to the defendant upon inspection of the state’s files.
{¶32} This case is different. Here, appellee, via counsel, knew there was no hold
on the motorcycle. And, he made a request that the prosecutor’s office take steps to
simply preserve the motorcycle. This is not a request for the prosecutor’s office to obtain
evidence to support appellee’s defense.
{¶33} The record does not indicate appellee specifically knew where the
motorcycle was being held. By requesting the state to preserve the evidence by placing
a hold (particularly after appellee was indicted), appellee was not asking the state to be
responsible for obtaining evidence for his defense. To the contrary, it was a prophylactic
14
Case No. 2022-P-0053
maneuver designed to ensure evidence was not lost or destroyed before it could be used
as a means to mounting an effective and reasonable defense.
{¶34} In light of the foregoing, we hold the trial court did not err in dismissing the
charges based upon the actions or inactions of the state and/or those acting on the state’s
behalf. The state’s assignment of error is therefore without merit.
{¶35} For the reasons discussed in this opinion, the judgment of the Portage
County Municipal Court, Ravenna Division, is affirmed.
JOHN J. EKLUND, P.J.,
MARY JANE TRAPP, J.,
concur.
15
Case No. 2022-P-0053
