[Cite as State v. English, 2014-Ohio-2836.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY
State of Ohio Court of Appeals No. H-13-024
Appellee Trial Court No. 13CRB01139
v.
Thomas G. English DECISION AND JUDGMENT
Appellant Decided: June 27, 2014
*****
G. Stuart O’Hara, Jr., Law Director, and Scott M. Christophel, Assistant Law Director, for appellee.
Thomas G. English, pro se.
JENSEN, J.
{¶ 1} Following a bench trial, defendant-appellant, Thomas G. English, pro se,
timely appeals the August 20, 2013 judgment of the Norwalk Municipal Court finding him guilty of disorderly conduct, a violation of R.C. 2917.11(B)(2). For the reasons that
follow, we affirm the trial court’s judgment.
I. Factual Background
{¶ 2} On July 22, 2013, at approximately 1:30 a.m., English was leaving an adult
entertainment establishment located on U.S. Route 250 in Huron County, Ohio. Deputy
Shannon Lyons, of the Huron County Sheriff’s Department, observed English walking
across Route 250 stumbling towards a ditch next to the highway. She activated her
lights, stopped her patrol car, and requested that English come towards her. During her
encounter with English, Deputy Lyons detected the smell of alcohol and observed that he
had glassy eyes and slurred speech. She asked English if anyone could pick him up.
Upon concluding that no one could, Deputy Lyons placed English under arrest for
disorderly conduct while intoxicated.
{¶ 3} During a hearing conducted on August 6, 2013, English informed the trial
court that on August 1, 2013, he requested that the state produce video surveillance from
the Huron County jail, depicting English’s conduct near the time of his arrest. The state
acknowledged that the video cameras at the jail may contain footage of English and
indicated that it had requested the recording from the facility. English sought a
continuance to allow for the state to provide him with the surveillance footage. The state
estimated that it could produce the recordings within two weeks and the court reset the
trial for August 20, 2013.
2. {¶ 4} When he appeared for the August 20, 2013 trial, English moved the court to
dismiss the case, explaining that the state never provided the recording from the Huron
County jail, which English believed would demonstrate that he was walking without
staggering or stumbling. The state indicated that only one employee at the facility was
capable of recovering the footage, and that employee was out of the office at the time the
video was requested. It explained that the sheriff’s office re-records over the booking
room video after thirty days and that despite requesting the video footage, it had since
been recorded over and was no longer available.
{¶ 5} The court determined that the trial would proceed and that it would take the
issue of the destruction of the video under advisement. During trial, Deputy Lyons
testified for the state. English offered the testimony of Deputy Keith Roswell, the
booking officer who worked during the early morning hours of July 22, 2013. Deputy
Roswell testified that he smelled alcohol on English’s breath and that English admitted
that he had been drinking alcohol. He conceded, however, that English exhibited no
other signs of intoxication, including stumbling.
{¶ 6} The trial court ultimately found English guilty of disorderly conduct and
imposed a fine of $75.00 plus costs of $104.05. English now appeals and assigns the
following error for our review:
The trial court erred in overruling appellant’s motion to dismiss.
Appellant’s due-process rights were violated by the state’s failure to
preserve materially exculpatory evidence * * *[.]
3. II. Law and Analysis
{¶ 7} In this case, the court did not issue a specific order denying English’s motion
to dismiss, nevertheless, it can be inferred from the trial court’s judgment of conviction
that English’s motion was, in fact, denied. See State ex rel. The V Cos. v. Marshall, 81
Ohio St.3d 467, 469, 692 N.E.2d 198 (1998) (“When a trial court fails to rule on a pretrial
motion [and proceeds to judgment in the case], it may ordinarily be presumed that the
court overruled it * * *.”). In reviewing a trial court’s decision on a motion to dismiss on
the basis that the state failed to produce materially exculpatory evidence, we conduct a de
novo review. State v. Benton, 136 Ohio App.3d 801, 805, 737 N.E.2d 1046 (6th
Dist.2000).
{¶ 8} English contends that the video footage from the Huron County jail would
have supported his defense to the charge of disorderly conduct while intoxicated by
demonstrating that when he was being booked, he was not stumbling. He claims that his
due-process rights under the Fourteenth Amendment to the United States Constitution
were violated when the state failed to preserve the recording which he characterizes as
“materially exculpatory evidence.”
{¶ 9} In general, “the Due Process Clause of the Fourteenth Amendment to the
United States Constitution protects a criminal defendant from being convicted of a crime
where the state either fails to preserve materially exculpatory evidence or destroys in bad
faith potentially useful evidence.” (Internal citations omitted.) Benton at 805. The
Supreme Court of Ohio has concluded that evidence is materially exculpatory “only if
4. there is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” State v. Jackson, 57 Ohio St.3d 29,
33, 565 N.E.2d 549 (1991), quoting State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898
(1988), paragraph five of syllabus. A “‘reasonable probability’ is a probability sufficient
to undermine confidence in the outcome.” Id. We have described evidence as
“materially exculpatory” where: “(1) the evidence 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 reasonable means.”
Benton at 805.
{¶ 10} Where a defendant moves to have evidence preserved and the state
nonetheless destroys the evidence in accordance with its normal procedures, the burden
shifts to the state to show that the evidence was not exculpatory. Id. However, “[i]f the
state fails to carry this burden, the defendant must still show that the evidence could not
have been obtained by other reasonable means.” Id. at 805-06.
{¶ 11} The state argues that the video footage was not materially exculpatory
because English was arrested, charged, and convicted based upon conduct occurring an
hour before the recording, not upon his conduct while at the correctional facility. It
maintains that even if the evidence was potentially useful, its failure to preserve the
recording was not in bad faith. Under the circumstances, the state claims, the proper
remedy was to prohibit it from producing any evidence of what may have been contained
in the recording. It contends that it never sought to admit such evidence. It also points
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. English, 2014-Ohio-2836.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY
State of Ohio Court of Appeals No. H-13-024
Appellee Trial Court No. 13CRB01139
v.
Thomas G. English DECISION AND JUDGMENT
Appellant Decided: June 27, 2014
*****
G. Stuart O’Hara, Jr., Law Director, and Scott M. Christophel, Assistant Law Director, for appellee.
Thomas G. English, pro se.
JENSEN, J.
{¶ 1} Following a bench trial, defendant-appellant, Thomas G. English, pro se,
timely appeals the August 20, 2013 judgment of the Norwalk Municipal Court finding him guilty of disorderly conduct, a violation of R.C. 2917.11(B)(2). For the reasons that
follow, we affirm the trial court’s judgment.
I. Factual Background
{¶ 2} On July 22, 2013, at approximately 1:30 a.m., English was leaving an adult
entertainment establishment located on U.S. Route 250 in Huron County, Ohio. Deputy
Shannon Lyons, of the Huron County Sheriff’s Department, observed English walking
across Route 250 stumbling towards a ditch next to the highway. She activated her
lights, stopped her patrol car, and requested that English come towards her. During her
encounter with English, Deputy Lyons detected the smell of alcohol and observed that he
had glassy eyes and slurred speech. She asked English if anyone could pick him up.
Upon concluding that no one could, Deputy Lyons placed English under arrest for
disorderly conduct while intoxicated.
{¶ 3} During a hearing conducted on August 6, 2013, English informed the trial
court that on August 1, 2013, he requested that the state produce video surveillance from
the Huron County jail, depicting English’s conduct near the time of his arrest. The state
acknowledged that the video cameras at the jail may contain footage of English and
indicated that it had requested the recording from the facility. English sought a
continuance to allow for the state to provide him with the surveillance footage. The state
estimated that it could produce the recordings within two weeks and the court reset the
trial for August 20, 2013.
2. {¶ 4} When he appeared for the August 20, 2013 trial, English moved the court to
dismiss the case, explaining that the state never provided the recording from the Huron
County jail, which English believed would demonstrate that he was walking without
staggering or stumbling. The state indicated that only one employee at the facility was
capable of recovering the footage, and that employee was out of the office at the time the
video was requested. It explained that the sheriff’s office re-records over the booking
room video after thirty days and that despite requesting the video footage, it had since
been recorded over and was no longer available.
{¶ 5} The court determined that the trial would proceed and that it would take the
issue of the destruction of the video under advisement. During trial, Deputy Lyons
testified for the state. English offered the testimony of Deputy Keith Roswell, the
booking officer who worked during the early morning hours of July 22, 2013. Deputy
Roswell testified that he smelled alcohol on English’s breath and that English admitted
that he had been drinking alcohol. He conceded, however, that English exhibited no
other signs of intoxication, including stumbling.
{¶ 6} The trial court ultimately found English guilty of disorderly conduct and
imposed a fine of $75.00 plus costs of $104.05. English now appeals and assigns the
following error for our review:
The trial court erred in overruling appellant’s motion to dismiss.
Appellant’s due-process rights were violated by the state’s failure to
preserve materially exculpatory evidence * * *[.]
3. II. Law and Analysis
{¶ 7} In this case, the court did not issue a specific order denying English’s motion
to dismiss, nevertheless, it can be inferred from the trial court’s judgment of conviction
that English’s motion was, in fact, denied. See State ex rel. The V Cos. v. Marshall, 81
Ohio St.3d 467, 469, 692 N.E.2d 198 (1998) (“When a trial court fails to rule on a pretrial
motion [and proceeds to judgment in the case], it may ordinarily be presumed that the
court overruled it * * *.”). In reviewing a trial court’s decision on a motion to dismiss on
the basis that the state failed to produce materially exculpatory evidence, we conduct a de
novo review. State v. Benton, 136 Ohio App.3d 801, 805, 737 N.E.2d 1046 (6th
Dist.2000).
{¶ 8} English contends that the video footage from the Huron County jail would
have supported his defense to the charge of disorderly conduct while intoxicated by
demonstrating that when he was being booked, he was not stumbling. He claims that his
due-process rights under the Fourteenth Amendment to the United States Constitution
were violated when the state failed to preserve the recording which he characterizes as
“materially exculpatory evidence.”
{¶ 9} In general, “the Due Process Clause of the Fourteenth Amendment to the
United States Constitution protects a criminal defendant from being convicted of a crime
where the state either fails to preserve materially exculpatory evidence or destroys in bad
faith potentially useful evidence.” (Internal citations omitted.) Benton at 805. The
Supreme Court of Ohio has concluded that evidence is materially exculpatory “only if
4. there is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” State v. Jackson, 57 Ohio St.3d 29,
33, 565 N.E.2d 549 (1991), quoting State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898
(1988), paragraph five of syllabus. A “‘reasonable probability’ is a probability sufficient
to undermine confidence in the outcome.” Id. We have described evidence as
“materially exculpatory” where: “(1) the evidence 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 reasonable means.”
Benton at 805.
{¶ 10} Where a defendant moves to have evidence preserved and the state
nonetheless destroys the evidence in accordance with its normal procedures, the burden
shifts to the state to show that the evidence was not exculpatory. Id. However, “[i]f the
state fails to carry this burden, the defendant must still show that the evidence could not
have been obtained by other reasonable means.” Id. at 805-06.
{¶ 11} The state argues that the video footage was not materially exculpatory
because English was arrested, charged, and convicted based upon conduct occurring an
hour before the recording, not upon his conduct while at the correctional facility. It
maintains that even if the evidence was potentially useful, its failure to preserve the
recording was not in bad faith. Under the circumstances, the state claims, the proper
remedy was to prohibit it from producing any evidence of what may have been contained
in the recording. It contends that it never sought to admit such evidence. It also points
5. out that English was able to present the evidence that he claims was depicted in the video
through Deputy Roswell’s testimony, thereby avoiding any potential prejudice to English.
{¶ 12} We agree with the state that the evidence at issue was not “materially
exculpatory.” Although the evidence may have been minimally useful, its evidentiary
value was limited in that English was arrested based on Deputy Lyons’ observations of
him after stopping him on U.S. Route 250 – the recording depicts conduct that occurred
at the booking office an hour after English was arrested. During this time the alcohol in
his system was presumably dissipating. While the state was clearly under a duty to
preserve the evidence requested by English, the destruction of the evidence was
accomplished not through bad faith, but through poor judgment or negligence. It was the
standard practice to re-record every thirty days and the absence of the employee
responsible for recovering the video failed to halt that process. In addition, Deputy
Roswell’s testimony established what English sought to demonstrate through the video
footage: that English was not stumbling or staggering while at the jail. The state did not
attempt to introduce any evidence to dispute that fact.
{¶ 13} Given these facts, we find no error in the trial court’s denial of English’s
motion to dismiss. Given the limited probative value of the evidence and English’s
ability to introduce the evidence through other means, we are not convinced that the
result of the proceeding would have been different had the video footage been available.
We, therefore, find English’s assignment of error not well-taken.
6. III. Conclusion
{¶ 14} We find English’s assignment of error not well-taken and affirm the August
20, 2013 judgment of the Norwalk Municipal Court. The costs of this appeal are
assessed to English 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.
Arlene Singer, J. _______________________________ JUDGE Stephen A. Yarbrough, P.J. _______________________________ James D. Jensen, 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.sconet.state.oh.us/rod/newpdf/?source=6.
7.