[Cite as State v. Clark, 2018-Ohio-4759.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-17-1256
Appellee Trial Court No. CR0201701343
v.
Marcus L. Clark, Sr. DECISION AND JUDGMENT
Appellant Decided: November 30, 2018
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
PIETRYKOWSKI, J.
{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common
Pleas, convicting appellant, Marcus Clark, of one count of retaliation in violation of R.C.
2921.05(B) and (C), a felony of the third degree. For the reasons that follow, we affirm. I. Facts and Procedural Background
{¶ 2} On February 17, 2017, appellant was sentenced to 17 months in prison in
case No. CR0201603039 for his conviction for menacing by stalking. Following
appellant’s sentencing hearing, Lucas County Sheriff’s Deputy Jason Stambaugh
transported appellant back to the Lucas County Correctional Center by way of a tunnel
connecting it with the Lucas County Court of Common Pleas. As appellant was exiting
the elevator leading to the tunnel, Stambaugh heard appellant say “that bitch is going to
get what’s coming to her when I get out,” referring to the victim of his conviction for
menacing by stalking. A few moments later, while they were in the tunnel, Stambaugh
heard appellant say “I’m gonna kill that bitch.”
{¶ 3} Stambaugh notified his supervisor and wrote a report regarding appellant’s
statements. Appellant was subsequently indicted in the present case on February 22,
2017, with one count of retaliation against the victim of a crime.
{¶ 4} Appellant was arraigned on March 2, 2017. On March 3, 2017, appointed
counsel filed a written demand for discovery. The state responded on March 8, 2017, and
provided the officer reports from Stambaugh and the investigating officer, Toledo Police
Detective Mary Jo Jaggers. The state did not provide any video from the basement of the
courthouse where the statements were allegedly made. On March 30, 2017, appellant
filed a motion to compel discovery, seeking the videotapes from the basement and tunnel.
In response to appellant’s motion to compel, the state asserted that while the video
requested by appellant did exist at one time, the retention schedule for the video was 21
2. days, after which it was automatically overwritten. In this case, the incident occurred on
February 17, 2017, and was automatically overwritten on March 10, 2017. The state later
supplemented its response to provide a video maintained by a second system which
purported to show appellant making his second retaliatory threat. In addition, the state
provided a video of Stambaugh recreating the circumstances surrounding appellant’s first
retaliatory threat, showing which direction they were facing, their speed of movement,
and appellant’s approximate position. Importantly, the systems used to record the videos
in the tunnel area did not have audio capability, so no audio recording of the events
existed at any time.
{¶ 5} On June 5, 2017, appellant moved to dismiss the indictment. Appellant
argued that his due process rights were violated when the state failed to preserve the
video showing him making the first retaliatory threat. Specifically, appellant argued that
the area shown on the video was well lit and easily discernable, and the video would have
contradicted Stambaugh’s testimony that appellant in fact made the threats. Further, the
video would have impacted the credibility of Stambaugh’s testimony as to the second
alleged retaliatory threat. Thus, appellant concluded that the video was materially
exculpatory evidence.
{¶ 6} The trial court held a hearing on appellant’s motion on June 13, 2017. At
the hearing, Stambaugh elaborated that when appellant made the retaliatory threats, he
was agitated, and his arms were flailing as much as they could while being confined by
the belly chain attached to his wrist restraints. After the testimony was presented, the
3. trial court permitted the parties to brief the issues surrounding appellant’s motion to
dismiss.
{¶ 7} Appellant’s trial was held on October 10, 2017. At the start of the trial, the
court ruled on appellant’s motion. The court found that while the video of the first
retaliatory threat might have been potentially useful, it was not materially exculpatory.
Therefore, the trial court denied appellant’s motion to dismiss, and the matter proceeded
to a bench trial.
{¶ 8} At the trial, Stambaugh testified first for the state. He testified that appellant
had just been sentenced to 17 months in prison for the crime of menacing by stalking. As
Stambaugh was transporting appellant back to the jail, appellant made two relevant
statements. First, as they were getting off of the elevator from the courthouse, appellant
stated “[T]hat bitch is going to get what’s coming to her when I get out.” Second, as they
were proceeding through the tunnel to the jail, appellant stated, “I’m gonna kill that
bitch.” On cross-examination, Stambaugh recounted that at the June 13, 2017 hearing he
testified that appellant’s arms were flailing about. However, Stambaugh admitted that in
the video showing when the second retaliatory threat occurred, appellant’s arms were not
moving.
{¶ 9} Following Stambaugh, the state called Toledo Police Detective Mary Jo
Jaggers, who testified that her investigation of the incident consisted only of speaking
with Stambaugh on the phone. The state then called as its final witness, Roger Kerner,
Director of the Office of Court Deputies at the Lucas County Court of Common Pleas.
4. Kerner testified that he was responsible for maintaining the security camera system that
would have captured when the first retaliatory threat was made. Kerner stated that he
was not informed of the February 17, 2017 incident at the time, and by the time he
learned of the incident, the video from the basement of the courthouse had been deleted.
{¶ 10} Thereafter, the state rested. Appellant moved for acquittal pursuant to
Crim.R. 29, which the trial court denied. Appellant then rested without calling any
witnesses. Following closing arguments, the trial court continued the trial to the next day
to render its decision.
{¶ 11} At the start of the second day of trial, appellant reconsidered his earlier
decision, and stated that he wished to testify. The trial court, over the state’s objection,
agreed to reopen the case to entertain appellant’s testimony. Appellant testified that after
his sentencing in case No. CR0201603039, he was hurt and crushed. Appellant admitted
that before he got on the elevator, or while he was in the elevator, he said something to
the effect of “[T]his is some bull shit. The only thing I’m guilty of is f***ing with a
black (sic) woman. I’m black, f***ing with a white woman and that’s what I’m guilty
of.” However, appellant denied making any statements once he got off of the elevator
and was in the tunnel, and testified that, at most, he said “hmm, hmm, hmm.” In
particular, appellant denied that he made any statements threatening the victim.
Appellant explained that Stambaugh may have been motivated to lie about the statements
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[Cite as State v. Clark, 2018-Ohio-4759.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-17-1256
Appellee Trial Court No. CR0201701343
v.
Marcus L. Clark, Sr. DECISION AND JUDGMENT
Appellant Decided: November 30, 2018
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
PIETRYKOWSKI, J.
{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common
Pleas, convicting appellant, Marcus Clark, of one count of retaliation in violation of R.C.
2921.05(B) and (C), a felony of the third degree. For the reasons that follow, we affirm. I. Facts and Procedural Background
{¶ 2} On February 17, 2017, appellant was sentenced to 17 months in prison in
case No. CR0201603039 for his conviction for menacing by stalking. Following
appellant’s sentencing hearing, Lucas County Sheriff’s Deputy Jason Stambaugh
transported appellant back to the Lucas County Correctional Center by way of a tunnel
connecting it with the Lucas County Court of Common Pleas. As appellant was exiting
the elevator leading to the tunnel, Stambaugh heard appellant say “that bitch is going to
get what’s coming to her when I get out,” referring to the victim of his conviction for
menacing by stalking. A few moments later, while they were in the tunnel, Stambaugh
heard appellant say “I’m gonna kill that bitch.”
{¶ 3} Stambaugh notified his supervisor and wrote a report regarding appellant’s
statements. Appellant was subsequently indicted in the present case on February 22,
2017, with one count of retaliation against the victim of a crime.
{¶ 4} Appellant was arraigned on March 2, 2017. On March 3, 2017, appointed
counsel filed a written demand for discovery. The state responded on March 8, 2017, and
provided the officer reports from Stambaugh and the investigating officer, Toledo Police
Detective Mary Jo Jaggers. The state did not provide any video from the basement of the
courthouse where the statements were allegedly made. On March 30, 2017, appellant
filed a motion to compel discovery, seeking the videotapes from the basement and tunnel.
In response to appellant’s motion to compel, the state asserted that while the video
requested by appellant did exist at one time, the retention schedule for the video was 21
2. days, after which it was automatically overwritten. In this case, the incident occurred on
February 17, 2017, and was automatically overwritten on March 10, 2017. The state later
supplemented its response to provide a video maintained by a second system which
purported to show appellant making his second retaliatory threat. In addition, the state
provided a video of Stambaugh recreating the circumstances surrounding appellant’s first
retaliatory threat, showing which direction they were facing, their speed of movement,
and appellant’s approximate position. Importantly, the systems used to record the videos
in the tunnel area did not have audio capability, so no audio recording of the events
existed at any time.
{¶ 5} On June 5, 2017, appellant moved to dismiss the indictment. Appellant
argued that his due process rights were violated when the state failed to preserve the
video showing him making the first retaliatory threat. Specifically, appellant argued that
the area shown on the video was well lit and easily discernable, and the video would have
contradicted Stambaugh’s testimony that appellant in fact made the threats. Further, the
video would have impacted the credibility of Stambaugh’s testimony as to the second
alleged retaliatory threat. Thus, appellant concluded that the video was materially
exculpatory evidence.
{¶ 6} The trial court held a hearing on appellant’s motion on June 13, 2017. At
the hearing, Stambaugh elaborated that when appellant made the retaliatory threats, he
was agitated, and his arms were flailing as much as they could while being confined by
the belly chain attached to his wrist restraints. After the testimony was presented, the
3. trial court permitted the parties to brief the issues surrounding appellant’s motion to
dismiss.
{¶ 7} Appellant’s trial was held on October 10, 2017. At the start of the trial, the
court ruled on appellant’s motion. The court found that while the video of the first
retaliatory threat might have been potentially useful, it was not materially exculpatory.
Therefore, the trial court denied appellant’s motion to dismiss, and the matter proceeded
to a bench trial.
{¶ 8} At the trial, Stambaugh testified first for the state. He testified that appellant
had just been sentenced to 17 months in prison for the crime of menacing by stalking. As
Stambaugh was transporting appellant back to the jail, appellant made two relevant
statements. First, as they were getting off of the elevator from the courthouse, appellant
stated “[T]hat bitch is going to get what’s coming to her when I get out.” Second, as they
were proceeding through the tunnel to the jail, appellant stated, “I’m gonna kill that
bitch.” On cross-examination, Stambaugh recounted that at the June 13, 2017 hearing he
testified that appellant’s arms were flailing about. However, Stambaugh admitted that in
the video showing when the second retaliatory threat occurred, appellant’s arms were not
moving.
{¶ 9} Following Stambaugh, the state called Toledo Police Detective Mary Jo
Jaggers, who testified that her investigation of the incident consisted only of speaking
with Stambaugh on the phone. The state then called as its final witness, Roger Kerner,
Director of the Office of Court Deputies at the Lucas County Court of Common Pleas.
4. Kerner testified that he was responsible for maintaining the security camera system that
would have captured when the first retaliatory threat was made. Kerner stated that he
was not informed of the February 17, 2017 incident at the time, and by the time he
learned of the incident, the video from the basement of the courthouse had been deleted.
{¶ 10} Thereafter, the state rested. Appellant moved for acquittal pursuant to
Crim.R. 29, which the trial court denied. Appellant then rested without calling any
witnesses. Following closing arguments, the trial court continued the trial to the next day
to render its decision.
{¶ 11} At the start of the second day of trial, appellant reconsidered his earlier
decision, and stated that he wished to testify. The trial court, over the state’s objection,
agreed to reopen the case to entertain appellant’s testimony. Appellant testified that after
his sentencing in case No. CR0201603039, he was hurt and crushed. Appellant admitted
that before he got on the elevator, or while he was in the elevator, he said something to
the effect of “[T]his is some bull shit. The only thing I’m guilty of is f***ing with a
black (sic) woman. I’m black, f***ing with a white woman and that’s what I’m guilty
of.” However, appellant denied making any statements once he got off of the elevator
and was in the tunnel, and testified that, at most, he said “hmm, hmm, hmm.” In
particular, appellant denied that he made any statements threatening the victim.
Appellant explained that Stambaugh may have been motivated to lie about the statements
because earlier appellant had laughed as a different inmate talked “real bad” about
Stambaugh.
5. {¶ 12} After receiving appellant’s testimony, the trial court found appellant guilty
of retaliation beyond a reasonable doubt. Thereafter, at the sentencing hearing, the trial
court sentenced appellant to 18 months in prison, to be run consecutively to appellant’s
sentence in case No. CR0201603039.
II. Assignments of Error
{¶ 13} Appellant has timely appealed his judgment of conviction, and now asserts
two assignments of error for our review:
I. The trial court erred when it denied appellant’s motion to dismiss
indictment due to destruction of material evidence.
II. Appellant’s conviction for retaliation was against the manifest
weight of the evidence.
III. Analysis
{¶ 14} In his first assignment of error, appellant argues that his due process rights
were violated when the state failed to preserve the video depicting where the first alleged
retaliatory statement was made.
{¶ 15} “Specific tests are applied to determine whether the state’s failure to
preserve evidence rises to the level of a due process violation. The test depends on
whether the lost or destroyed evidence involves ‘material exculpatory evidence’ or
‘potentially useful evidence.’” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577,
971 N.E.2d 865, ¶ 73. If the state has lost or destroyed materially exculpatory evidence,
then appellant’s due process rights have been violated. Id. at ¶ 74, citing California v.
6. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). “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, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 10.
{¶ 16} Appellant first argues that the destroyed video is materially exculpatory.
“Evidence is constitutionally material when it possesses ‘an exculpatory value that was
apparent before the evidence was destroyed, and [is] of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably available means.’”
Powell at ¶ 74, quoting Trombetta at 489. Specifically, appellant argues that the video is
materially exculpatory because it could have shown that appellant was not agitated or
flailing his arms when he allegedly made the first retaliatory threat, which would have
contradicted Stambaugh’s testimony and undermined his credibility on that issue. By
extension, the contradiction would have also called into question Stambaugh’s credibility
as it relates to his testimony that appellant made the retaliatory threats. Essentially,
appellant argues that if Stambaugh was wrong about the flailing arm movements, then he
may have been wrong about the alleged threats.
{¶ 17} We disagree that the destroyed video is materially exculpatory. Of
particular importance, we note that the offending acts in this case were the verbal threats
made by appellant. However, the destroyed video did not contain any audio, and thus it
would not have provided direct evidence proving appellant’s guilt or innocence. At best,
the video would have supported or undermined Stambaugh’s credibility on the ultimately
7. immaterial fact of whether appellant was waving his arms. Therefore, we hold that the
video may be potentially useful, but it is not materially exculpatory.
{¶ 18} Appellant next argues that if the destroyed video is not materially
exculpatory, then his due process rights were still violated because the state acted in bad
faith. “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.” (Citations omitted.)
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 81.
{¶ 19} Here, the record does not reveal any indications of a dishonest purpose,
moral obliquity, or conscious wrongdoing on the part of the state. Rather, the state’s
failure to preserve the video can be attributed to oversight or incompetence. Detective
Jaggers testified that in her discussion with Stambaugh, there was no mention of a video.
Further, Jaggers testified that she had never been in the tunnel system, and she was not
aware that a video of the incident potentially existed. Thus, the record suggests that the
investigating detective did not give any consideration to whether a video existed, and it
follows that the prosecutor, in working closely with the investigating detective, would
also have overlooked the possibility of the existence of a video. While we are dismayed
by the state’s lack of thoroughness in initially responding to appellant’s demand for
discovery, we hold that the failure to preserve the video was the product of negligence,
8. not bad faith. Therefore, we hold that appellant’s due process rights were not violated,
and the trial court did not err in denying appellant’s motion to dismiss the indictment.
{¶ 20} Accordingly, appellant’s first assignment of error is not well-taken.
{¶ 21} In his second assignment of error, appellant argues that his conviction for
retaliation is against the manifest weight of the evidence. When reviewing for manifest
weight,
The court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the [trier of fact] clearly lost
its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. The discretionary
power to grant a new trial should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction. State v. Lang,
129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting State
v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶ 22} In this case, appellant was convicted of retaliation in violation of R.C.
2921.05(B), which provides, “No person, purposely and by force or by unlawful threat of
harm to any person or property, shall retaliate against the victim of a crime because the
victim filed or prosecuted criminal charges.”
{¶ 23} Appellant argues that his conviction is against the manifest weight of the
evidence because although Stambaugh testified that appellant was agitated and waving
9. his arms around, the video from the time of the alleged second retaliatory threat does not
show any agitation or arm movements at all. Further, appellant again points out that
there is no evidence as to his arm movements or level of agitation relative to the first
alleged retaliatory statement because that evidence has been destroyed.
{¶ 24} Upon our review of the record, we find that this is not the exceptional case
where the evidence weighs heavily against the conviction. Here, the case turns upon the
credibility of Stambaugh’s testimony that appellant made the retaliatory threats. We
agree that the absence of any video evidence corroborating Stambaugh’s testimony that
appellant was agitated and waving his arms does negatively impact Stambaugh’s
credibility. However, we find that the impact of this discrepancy is minor given that the
offending conduct was verbal threats, not arm movements. Further, we find that
Stambaugh’s credibility is buoyed by the fact that he immediately reported the offending
threats, and his testimony at trial was consistent with his report. Finally, we do not find
any credible reason in the record that would explain why Stambaugh would be motivated
to fabricate his testimony that appellant made the retaliatory threats. Therefore, we find
that Stambaugh’s testimony is credible, and hold that appellant’s conviction is not against
the manifest weight of the evidence.
{¶ 25} Accordingly, appellant’s second assignment of error is not well-taken.
10. IV. Conclusion
{¶ 26} For the foregoing reasons, we find that substantial justice has been done the
party complaining, and the judgment of the Lucas County Court of Common Pleas is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE James D. Jensen, J. _______________________________ Christine E. Mayle, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
11.