[Cite as State v. Blair, 2014-Ohio-1279.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
JAMES C. BLAIR
Defendant-Appellant
Appellate Case No. 25578
Trial Court Case No. 2011-CR-3790
(Criminal Appeal from (Common Pleas Court) ...........
OPINION
Rendered on the 28th day of March , 2014.
...........
MATHIAS H. HECK, JR., by APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
SCOTT N. BLAUVELT, Atty. Reg. No. 0068177, 246 High Street, Hamilton, Ohio 45011 Attorney for Defendant-Appellant
.............
DONOVAN, J. 2
{¶ 1} Defendant-Appellant, James Blair, appeals from his conviction and sentence on
charges of Assault (Peace Officer) and Carrying Concealed Weapons. Blair contends that the trial
court erred in overruling his motion to dismiss, which was based on the State’s destruction of a
videotape of the events surrounding Blair’s arrest.
{¶ 2} We conclude that the trial court did err in overruling Blair’s motion to dismiss as
to count one, the Assault (Peace Officer) charge. The videotape that was erased by the police was
materially exculpatory. Accordingly, the judgment of the trial court with respect to the Assault
(Peace Officer) is reversed and remanded for the trial court to dismiss it. With respect to the
Carrying Concealed Weapon charge, the judgment is Affirmed.
I. Facts and Course of Proceedings
{¶ 3} On March 7, 2011, Dayton Police Officer Mark Orick was on patrol in his
cruiser in the area of Edwin C. Moses Boulevard and Washington Street, in Dayton, Ohio. At
about 5:13 p.m., Orick was dispatched to the area of West Third Street and Broadway Street in
connection with a black Chevy Impala that was parked at an ATM at that location. Detective
Phillips, who was working on the Safe Streets Task Force, believed that the driver of the car was
James Blair, who had an active felony warrant.
{¶ 4} Orick was only about a minute away, and he proceeded to the intersection. As
Orick traveled westbound on West Third Street, he saw the Impala make a right-hand turn onto
West Third Street. The vehicle then traveled westbound on West Third Street. After observing
the driver fail to signal a lane change, Orick activated his overhead lights and initiated a traffic
stop.
{¶ 5} At the time, Orick’s cruiser was equipped with a VHS system. The VHS 3
recorder was in the trunk, which was accessible only by police officers who ranked as sergeants or
above. The recorder contained a VHS tape that had to be changed frequently.
{¶ 6} The camera for the recorder was mounted on the top of the cruiser on the inside,
facing out through the front window. A monitor was attached just below, so that officers could
see what the camera was filming. Activation of the cruiser’s overhead lights automatically tripped
the camera to begin recording.
{¶ 7} Orick notified dispatch that the vehicle had been stopped, and he walked up to the
driver’s side of the Impala. The vehicle contained three occupants – the driver, a front-seat
passenger, and a rear-seat passenger. Orick identified himself as a police officer, told the driver
why he had pulled the vehicle over, and asked for identification from all the occupants. After
determining that the driver was James Blair, which was the name given by Detective Phillips,
Orick asked Blair to step out of the vehicle. Dayton Police Officer Chris Smith arrived on the
scene as Orick was in the process of removing Blair from the vehicle.
{¶ 8} Orick placed Blair to the right of the driver’s side door and began to perform a
patdown for weapons. Because Blair had an outstanding warrant for felonious assault, Orick
wanted to pat him down to make sure he did not have any weapons. Orick had a firm grasp on the
back of Blair’s waistband, and Blair had his hands on the car. According to Orick, when he got to
Blair’s waist area, Blair spun and attempted to run back to the east or southeast. Blair pulled
Orick a few feet with him until Orick was able to spin Blair back around. Orick told Blair to stop
resisting, and that he was under arrest. At that point, the two men started to go to the ground.
They were near the left front tire of the Impala.
{¶ 9} As Orick attempted to secure Blair, Blair struck Orick twice on the left and back 4
side of the head. This occurred, according to Orick, after he and Blair were on the ground
struggling. This fact was contradicted by Detective Spears who watched the videotape prior to its
erasure wherein Spears noted Orick struck Blair once in the back of the head to get him to the
ground.
{¶ 10} While Blair and Orick were struggling, Officer Smith deployed his taser. Orick
felt a shock from the wires, and he let go of Blair, who then got up and began to run across the
street. Orick subsequently tackled Blair in the eastbound lane, near the curb. At that point, Blair
continued to struggle and ignored the officers’ commands to place his hands behind his back.
Consequently, Smith “dry stunned” Blair, without the taser probes, and the officers were able to
secure Blair in handcuffs.
{¶ 11} Officer Smith testified that he got to the scene about 10 seconds after Orick
arrived. Smith saw Orick get out and approach Blair’s vehicle. Smith stated that while Orick
was attempting a patdown of Blair, Blair turned around, swung, and pushed at Orick. According
to Smith, this occurred when both Blair and Orick were standing at the driver’s side door. Smith
also specifically stated that Blair hit Orick twice in the head.
{¶ 12} After explaining to Blair that he was under arrest, Smith used the taser on Blair.
Blair broke free and was chased, after which Smith had to perform a stun gun tase on Blair three
times before they were able to subdue him.
{¶ 13} Following the arrest, Orick saw a handgun laying in the middle of the street,
directly in front of and about ten feet away from the driver’s side door of the Impala. At that
point, more crews had arrived on scene, and they took both passengers into custody. Thereafter,
Orick found a magazine in Blair’s right front pocket that belonged to the weapon that was laying in 5
the street. As Orick removed the magazine, which had five live rounds, Blair admitted that he had
just been trying to run so he could get rid of the gun.
{¶ 14} Both Orick and Blair were transported to the hospital. Orick had scuff marks and
minor bruising to his right hand from taking Blair to the ground, while Blair received about eight
or nine stitches for a wound to his left ear.
{¶ 15} Because the incident involved use of force, Dayton Police Sergeant Mark Spears
conducted an internal investigation. Spears took statements from Orick and Smith, and from the
two passengers, James Wright and Derek Farmer. The passengers’ written statements were not
very detailed. Spears’ written report did not specifically mention that Blair had hit Orick.
{¶ 16} As part of his investigation, Spears removed the VHS tape from the cruiser and
took it to the Central Business District on Salem Avenue, which had a television and several
recording devices. The office had an old VHS with a DVD player in the side, which could be
used to dub VHS tapes onto a DVD. The system was at least 15 years old, and approximately 17
different steps had to be performed to save a VHS tape to DVD format.
{¶ 17} Spears initially watched the incident and then rewound the tape to the start of the
incident. After doing this, Spears tried to follow the steps to create a DVD. However, the VHS
tape was somehow erased during the process. The machine did not have an erase button, nor did
Spears think he had recorded over the VHS tape. However, the screen was blank when Spears
tried to record, and he concluded that he must have hit the wrong button. After the tape was
erased, it was placed on a 45-day hold in case another part of the tape needed to be used. The tape
was then put back into the unit to be reused. Significantly, Blair was indicted about one year later.
{¶ 18} During his review of the tape, Spears was able to see the initial stop and the 6
contact with Blair. Spears saw the initial struggle outside the car to the point where Blair broke
free. Spears acknowledged observing Orick appear to strike Blair once on the back part of his
head in order to get Blair down, and he saw Smith approaching. At that point, the machine
captured Smith’s back. By that time, Blair had already pulled Orick out of the camera’s view, so
that Spears could not see who was being tased. He could see Smith crouching with the taser and
suddenly Blair ran out. Nothing else was captured on the camera.
{¶ 19} In February 2012, Blair was indicted for Assault (Peace Officer), a fourth degree
felony, and for Possession of a Concealed Weapon, also a fourth degree felony. Blair pled not
guilty, and then filed a motion to dismiss the charges, based on the destruction of the videotape.
After conducting a hearing, the trial court overruled the motion to dismiss. Blair subsequently
pled no contest to Assault (Peace Officer), as charged, and to a reduced charge of Carrying
Concealed Weapons, a first degree misdemeanor. After accepting the plea, the trial court
sentenced Blair to community control sanctions. Blair appeals from his conviction and sentence.
II. Did the Trial Court Err in Overruling the Motion to Dismiss?
{¶ 20} Blair’s sole assignment of error states that:
“THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
MOTION TO DISMISS.”
{¶ 21} Under this assignment of error, Blair contends that the trial court erred in
overruling the motion to dismiss because the evidence on the VHS tape was materially
exculpatory. Blair also argues that even if the evidence was only potentially useful, the State
acted in bad faith.
{¶ 22} In overruling the motion to dismiss, the trial court held that Blair had failed to 7
meet the burden of establishing that the tape was exculpatory in nature. The court noted that
while some conflict existed in the witness accounts, three Dayton police officers and two
independent witnesses had seen the incident and could testify at trial. Thus, the tape’s potential
use was simply for purposes of impeaching a witness’ recitation of events, and this was not enough
to demonstrate that the evidence was exculpatory.
{¶ 23} The principle is well established that “[t]he Due Process Clause of the Fourteenth
Amendment to the United States Constitution protects a criminal defendant from being convicted
where the state fails to preserve materially exculpatory evidence or destroys in bad faith potentially
useful evidence.” State v. Franklin, 2d Dist. Montgomery No. 19041, 2002-Ohio-2370, ¶ 44,
citing Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). (Other
citations omitted.) “To be materially exculpatory, ‘evidence must both possess an exculpatory
value that was apparent before the evidence was destroyed, and be of such a nature that the
defendant would be unable to obtain comparable evidence by other reasonably available means.’”
Franklin at ¶ 44, quoting California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d
413 (1984). “The defendant bears the burden to show that the evidence was materially
exculpatory.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 74, citing
State v. Jackson, 57 Ohio St.3d 29, 33, 565 N.E.2d 549 (1991).
{¶ 24} After reviewing the record, we disagree with the trial court that the evidence was
not materially exculpatory. Blair was charged with having violated R.C. 2903.13(A), which
provides that “No person shall knowingly cause or attempt to cause physical harm to another or to
another's unborn.” In situations where the assault is on a police officer, the crime is elevated to a
felony of the fourth degree. R.C. 2903.13(C)(5). “Physical harm” is defined by R.C. 8
2901.01(A)(3) as “any injury, illness, or other physiological impairment, regardless of its gravity or
duration.”
{¶ 25} In challenging the trial court’s ruling, Blair focuses on inconsistencies in the
officers’ accounts. We acknowledge that the testimony of the police officers who witnessed the
assault does differ in several key respects, not just in their trial testimony but in the statements they
provided to Detective Spears in preparation of the Internal Affairs Report, identified as
Defendant’s Exhibit C. Officer Orick indicated that he hit Blair in the head after the two men
were on the ground struggling while Officer Smith’s testimony indicates that the men were still
standing when Blair hit Orick. The videotape was the only objective evidence available and the
best evidence to support Blair’s contention that the violence was initiated by Orick. The videotape
would have clarified Blair’s defense on this critical point.
{¶ 26} In contending that the videotape was materially exculpatory, Blair additionally
relies on the fact that Sergeant Spears failed to state in his written report, after he reviewed the
videotape, that Blair had hit Orick. This is significant since he noted the blow to the head by
Orick upon Blair, but did not note in his report that Blair in fact struck Orick first. When Spears
was questioned at the hearing about Orick’s account, Spears noted that he had only obtained a brief
statement from Orick at the scene. According to Spears:
Officer Orick stated that he was wrestling with the Defendant; the
Defendant was flailing his arms around, trying to get away. I don’t know. I’m
sure he mentioned that he was struck by him, but that he – it was during the pat
down that Defendant attempted to break free and that’s when the altercation took
place. And that during that time he [Orick] struck him in the back of the head 9
trying to take him to the ground.
{¶ 27} Sergeant Spears made the following further statement in response to whether his
report mentioned Blair having swung at or having hit Orick:
No, I think we just probably say that he managed to break free, and by doing
that, there’s probably some type of force. When you say that he “broke free,” it
doesn’t sound like the officer said he let him go. So. You’re right. I was –
probably didn’t put as much detail, but it said he was – managed to break free. So
I think that kind of insinuates that there’s force being used to get away from the
officer when he managed to break free. You don’t break free from somebody by
standing there and you separate. When you break free, that means some type of
force. So I probably did not put as much detail as I should have in that report.
{¶ 28} Given the inconsistencies in the witness statements, and what Officer Smith and
Detective Spears acknowledged having occurred, the tape would have been materially exculpatory.
{¶ 29} Blair compares his situation to that of the defendant in State v. Benson, 152 Ohio
App.3d 495, 499, 2003-Ohio-1944, 788 N.E.2d 693 (1st Dist.). In discussing whether the
evidence in that case was materially exculpatory, the First District Court of Appeals observed as
follows:
The state argues that, even though the tape was not preserved, it was not
materially exculpatory because the field sobriety testing was not recorded on it.
Despite the state's arguments, it is possible that the tape was materially exculpatory.
The testimony of Benson and his two eyewitnesses disputed much of the testimony
that the officer gave at the suppression hearing and again at trial relating to the stop 10
and the DUI charge. In our view, the tape would have provided the only possible
objective evidence of the events on the night Benson was stopped. Further, the
evidence was unique and not obtainable by other means. Id. at ¶ 12.
{¶ 30} Like the defendant in Benson, Blair would be unable “‘ to obtain comparable
evidence by other reasonably available means.’” Franklin, 2d Dist. Montgomery No. 19041,
2002-Ohio-2370, at ¶ 44, quoting Trombetta, 467 U.S. at 489, 104 S.Ct. 2528, 81 L.Ed.2d 413.
Blair was not obligated to testify, and it is unclear how much of the struggle the passengers were
able to observe. One passenger, Farmer, an attorney, wrote in pertinent part “officer began a
patdown search. I then saw scuffling and officer and driver went to the ground.” His written
statement does not indicate that Officer Orick acted properly and that the officer did nothing
wrong. The statement of the second passenger, Wright, does not mention a struggle nor an
assault, just that the “driver got tased and went to the ground.”
{¶ 31} Thus, Blair met his burden to establish that the videotape was materially
exculpatory.
{¶ 32} Finally, as previously noted:
* * * we do not condone the destruction of videotapes that record events
leading to an arrest:
“Police cruisers are equipped with videotape cameras in
order to make a record of those events for any later prosecution. On
that basis, and pursuant to Crim.R. 16, they are available for use by
an accused as they are for use by the State in such proceedings. The
need for care in preserving that record is implied by the force of the 11
Rule.” State v. Fuller, 2d Dist. Montgomery No. 18994, 2002 WL
857671, at *4 (April 26, 2002), quoting State v. Zawacki, 2d Dist.
Montgomery No. 16177, 1997 WL 630026, *2 (July 11, 1997).
Officer Spears admitted to having inadvertently destroyed this key evidence,
thereby failing in the State’s duty to preserve it.
{¶ 33} Accordingly, the trial court did err in overruling Blair’s motion to dismiss.
Blair’s sole assignment of error is sustained.
III. Conclusion
{¶ 34} Blair’s sole assignment of error having been sustained, the conviction for Assault
(Peace Officer) is Reversed and Remanded for the trial court to dismiss it. With respect to the
..........
FAIN, J., concurs.
WELBAUM, J., dissenting:
{¶ 35} I very respectfully dissent from the majority opinion. There appears to be no
dispute that Blair was physically struggling with Officer Orick in an attempt to get away. This
type of conduct would support a conviction for assault. Thus, regardless of any inconsistencies in
the witness statements, the videotape would have only served to potentially impeach a particular
account in some respects; I find no reasonable probability that the videotape’s disclosure would
have resulted in an acquittal.
{¶ 36} We have previously noted that “ * * * R.C. 2903.13(A) does not require that a
defendant cause physical harm; it also prohibits individuals from attempting to cause physical 12
harm to another. The testimony from the victim * * * is that [the defendant] was attempting to hit
her, and swung at her at least three times. This testimony alone, would have satisfied the
requirements for a conviction on the assault charge.” State v. Belcher, 2d Dist. Montgomery No.
24968, 2013-Ohio-1234, ¶ 57. Similarly, in the case before us, the fact that Blair was swinging at
Orick and attempted to hit him would have been sufficient for a conviction on the assault charge.
{¶ 37} Orick testified that while he and Blair struggled, and before they went to the
ground, Blair threw two elbows to try and break free from his grasp. This alone would have
justified an assault charge, without the addition of the blows that Blair allegedly inflicted on
Orick’s head after they went to the ground. Although Smith believed that Blair struck Orick on
the head while they were standing, rather than when the men were on the ground, there is still no
dispute that Blair was attempting to cause physical harm to Orick. In this regard, there is no
discrepancy in the officers’ testimony – at least not in key respects. The video-tape may have
clarified the location where the assault occurred, but both officers did testify that Blair hit Orick,
which would have been sufficient for a conviction of assault.
{¶ 38} The majority opinion also analogizes this case to Benson,152 Ohio App.3d 495,
2003-Ohio-1944, 788 N.E.2d 693 (1st Dist.). I disagree. Unlike the defendant in Benson, Blair
failed to present his own testimony, or the testimony of eyewitnesses, to dispute the testimony of
the police officers at the suppression hearing. As the movant, Blair had the burden of establishing
that the evidence was materially exculpatory. Powell, 132 Ohio St.2d 233, 2012-Ohio-2577, 971
N.E.2d 865, at ¶ 74.
{¶ 39} Contrary to the assertion in the majority opinion, eyewitness, Derek Farmer, did
tell the police that Officer Orick had acted properly. Officer Spears, who conducted the internal 13
investigation, took brief verbal and written statements from the passengers, one of whom was
Farmer. As the majority observes, Spears said that the witnesses’ statements were not very
detailed – however, Spears also added that the witnesses were evasive.
{¶ 40} Spears additionally said that Farmer did not get into much detail, because he
claimed there was some sort of attorney-client privilege. However, Farmer verbally told Spears
that the police officer had acted properly and did not do anything wrong.
{¶ 41} As noted, Blair had the burden of establishing that the evidence was materially
exculpatory. Powell at ¶ 74. Farmer was not counsel for Blair in the criminal case, and Blair
could have called Farmer as a witness at the suppression hearing to dispute Spears’s statements.
However, he failed to do so, and the court was left with Spears’s undisputed testimony. Given the
decision to overrule the motion to suppress, the trial court apparently found Spears credible.
{¶ 42} When we review cases, we defer to the trial court’s determination of credibility.
“The ‘rationale of giving deference to the findings of the trial court rests with the knowledge that
the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of the proffered testimony.’ ”
In re J.Y., 2d Dist. Miami No. 07-CA-35, 2008-Ohio-3485, ¶ 33, quoting from Seasons Coal Co.,
Inc. v. City of Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).
{¶ 43} Furthermore, even in his brief written statement, Farmer admitted that he saw
Orick and Farmer scuffle and saw the men go to the ground. And, while the other witness did not
mention seeing a struggle, it is not the fault of the police that the witness’s statement was evasive
and was not very detailed. These independent witnesses (the occupants of the car) were available
to dispute the testimony of the officers, and could have testified at trial, meaning that Blair would 14
be able “ ‘ to obtain comparable evidence by other reasonably available means.’ ” Franklin, 2d
Dist. Montgomery No. 19041, 2002-Ohio-2370, at ¶ 44, quoting Trombetta, 467 U.S. at 489, 104
S.Ct. 2528, 81 L.Ed.2d 413.
{¶ 44} Accordingly, Blair failed to meet his burden to establish that the videotape was
materially exculpatory. This leaves the issue, however, of whether the police acted in bad faith.
“If the evidence in question is not materially exculpatory, but only potentially useful, the defendant
must show bad faith on the part of the state in order to demonstrate a due process violation.”
State v. Geeslin, 116 Ohio St.3d 252, 254, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 10, citing
Youngblood, 488 U.S. at 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281. “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.’ ”
Franklin at ¶ 47-48, quoting State v. Buhrman, 2d Dist. Greene No. 96 CA 145, 1997 WL 566154,
*12 (Sept. 12, 1997).
{¶ 45} In arguing that Officer Spears acted in bad faith, Blair relies on comments that we
previously made in State v. Fuller, 2d Dist. Montgomery No. 18994, 2002 WL 857671 (April 26,
2002). In Fuller, police officers destroyed a videotape after concluding that it did not corroborate
their account of what had happened. Id. at *4. The officer who stopped the defendant's car stated
that he had seen the defendant “make a throwing motion as though he were throwing something
out the window.” Id. at *1. When the officer approached the car, he saw a green stick on the
ground and recognized it as a stem from a marijuana plant. Id. However, because the tape did
not “clearly depict” the tossing motion, the officers decided it was not relevant for a court 15
proceeding, and destroyed the tape. Id.
{¶ 46} We concluded in Fuller that the officers had not acted in bad faith. In this
regard, we observed that:
There is no evidence that the officers had an intent to mislead in destroying
the videotape. To the contrary, they candidly testified that the contents of the
videotape did not corroborate their story. Thus, the evidence does not establish
that they acted in bad faith. Fuller at *4.
{¶ 47} As the majority opinion notes, we did stress in Fuller that we do not condone the
destruction of videotapes that record events leading to an arrest. Id. at *4. I agree with that
statement as a general principle. However, the case before us differs factually from Fuller.
There is no indication that Blair's videotape was intentionally destroyed because it did not coincide
with the accounts of the police officers. Sergeant Spears was not charged with investigating
whether Blair had committed assault; he was attempting to copy the tape for use in connection with
an internal investigation over the use of force. Rather than acting intentionally, Spears simply
made an error in following the instructions for copying tapes. At most, Spears' actions were
negligent. Compare State v. Bolden, 2d Dist. Montgomery No. 19943, 2004-Ohio-2315, ¶ 56
(finding no bad faith where officer may have accidentally erased chat logs.)
{¶ 48} Furthermore, contrary to Blair's claims, there would have been no reason to
preserve the videotape beyond the 45-day hold, which appears to have been customary procedure.
The videotape was only preserved for that length of time in order to allow access in case the police
needed to use another part of the videotape. The portion pertaining to the incident was blank, and
preserving a blank videotape indefinitely would have served no purpose. Accordingly, the police 16
did not act in bad faith.
{¶ 49} For the reasons stated, I very respectfully dissent. I would affirm the judgment of
the trial court, which overruled Blair's motion to dismiss.
Copies mailed to:
Mathias H. Heck April F. Campbell Scott N. Blauvelt Hon. Dennis J. Adkins
Case Name: State of Ohio v. James C. Blair Case No: Montgomery App. No. 25578 Panel: Fain, Donovan, Welbaum Author: Mary E. Donovan Summary: