[Cite as State v. Lazier, 2013-Ohio-5373.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2013-03-030
: OPINION - vs - 12/9/2013 :
TIMOTHY W. LAZIER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 12CR28789
David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
Diehl & Hubbell, LLC, Martin E. Hubbell, 304 East Warren Street, Lebanon, Ohio 45036, for defendant-appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Timothy W. Lazier, appeals his conviction in the Warren
County Common Pleas Court for one count of failure to comply with an order or signal of a
police officer. Prior to trial, appellant moved to dismiss the charge due to the state's failure to
produce material evidence. The trial court denied appellant's motion. Appellant appeals
from the trial court's denial of his motion to dismiss and seeks reversal of his conviction. For Warren CA2013-03-030
the reasons set forth below, we affirm the judgment of the trial court.
{¶ 2} On November 11, 2012, Officer Steven Dunham of the Franklin Police
Department was driving a marked cruiser equipped with a video recording system. Dunham
was patrolling for a white Ford Explorer that was possibly involved in a theft in Middletown,
Ohio. While driving southbound, Dunham came upon appellant driving a white Ford Explorer
traveling northbound in Franklin, Warren County, Ohio. As Dunham believed appellant's
vehicle may have been the white Ford Explorer involved in the Middletown theft, Dunham
activated his overhead lights and sirens and turned his cruiser around to pursue appellant.
At this time, Dunham witnessed appellant's vehicle rapidly accelerating and continuing north.
{¶ 3} Initially, Dunham lost sight of appellant and traveled between 60 and 70 m.p.h.
in a residential area in order to catch up to appellant's vehicle. Dunham believed appellant
must have been traveling at speeds in excess of 60 m.p.h. in a 35 m.p.h. zone in order to
escape detection. Eventually, Dunham located appellant in his vehicle in the backyard of a
residence. The total distance of the pursuit was approximately six-tenths of a mile.
{¶ 4} Appellant claimed he was driving the speed limit the entire time Dunham was
allegedly in pursuit of him and had slowed down a number of times as he passed various
residences to determine whether friends and family members were at home. Eventually,
appellant arrived at the residence where he had been traveling to in order to sell "tools" to the
occupants. Appellant asserted he only saw Dunham's cruiser twice, did not believe Dunham
was in pursuit of him, did not alter his route because of Dunham, and did not pull into the
backyard of the residence to hide from Dunham.
{¶ 5} On January 22, 2013, appellant was indicted for failure to comply with an order
or signal of a police officer in violation of R.C. 2921.331(B). Appellant moved to dismiss the
case based upon the state's failure to produce the November 11, 2012 surveillance video
from Officer Dunham's cruiser. Appellant alleged this evidence was materially exculpatory to -2- Warren CA2013-03-030
the case. The trial court denied the motion on March 15, 2013 without a hearing.
{¶ 6} The case proceeded to a trial by jury on March 18, 2013, and appellant was
convicted on the failure to comply charge. Appellant was sentenced to serve six months in
jail and his driver's license was suspended for one year.
{¶ 7} From his conviction, appellant appeals, raising a single assignment of error:
{¶ 8} THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
DISMISS WITHOUT AN ORAL EVIDENTIARY HEARING.
{¶ 9} In his sole assignment of error, appellant argues the trial court violated his due
process rights by failing to hold an evidentiary hearing on his motion to dismiss based on the
missing surveillance video. Specifically, appellant alleges the trial court was required to hold
a hearing to determine whether the surveillance video contained exculpatory evidence that
appellant was not speeding, could not see Dunham's cruiser, was not fleeing, and did not fail
to comply with Dunham's signal or order. Appellant maintains that the state improperly
withheld this evidence and that, even if the evidence is only "potentially useful" to appellant
rather than exculpatory, his due process rights were violated because it is "plausible" the
video was destroyed in bad faith.
{¶ 10} Depending on the nature of the evidence, different tests are applied to
determine whether the unavailability of evidence amounts to the level of a due process
violation. State v. Gatliff, 12th Dist. Clermont No. CA2012-06-045, 2013-Ohio-2862, ¶ 40,
citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 73-77. "The state's failure to
preserve 'materially exculpatory' evidence, regardless of whether such failure was done in
good faith or bad faith, violates due process." Id., citing California v. Trombetta, 467 U.S.
479, 489, 104 S.Ct. 2528 (1984). 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 -3- Warren CA2013-03-030
reasonably available means." (Internal quotations omitted.) Id., quoting Powell at ¶ 74. The
defendant generally bears the burden of showing that the evidence was materially
exculpatory. Id., citing Powell at ¶ 74.
{¶ 11} However, "a different rule is used when the evidence is merely 'potentially
useful.'" Gatliff at ¶ 41, quoting State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, at ¶
9-10. "Unless a criminal defendant can show bad faith on the part of the police, failure to
preserve potentially useful evidence does not constitute a denial of due process of law." Id.,
citing Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333 (1988). Bad faith implies more
than bad judgment or negligence but, rather, "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." Id., citing Powell at ¶ 81.
{¶ 12} "With regard to procedure, we note that the denial of a motion to dismiss on the
ground that the government failed to preserve exculpatory evidence is reviewed de novo."
State v. Combs, 5th Dist. Delaware No. 03CA-C-12-073, 2004-Ohio-6574, ¶ 25; State v.
Johnson, 8th Dist. Cuyahoga No. 82527, 2003-Ohio-4569, ¶ 7; United States v. Wright, 260
F.3d 568, 570 (6th Cir.2001).
{¶ 13} We find appellant failed to meet his burden of proving that the surveillance
video was materially exculpatory and, therefore, that his due process rights were violated by
the state's failure to preserve the video or by the trial court's failure to hold an evidentiary
hearing on the matter. Appellant concedes the footage on the video is only "potentially
useful" and "could have" shown "the speed of appellant's vehicle, whether he could see the
officer's vehicle, and whether the movement of his vehicle was evasive." Appellant
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[Cite as State v. Lazier, 2013-Ohio-5373.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2013-03-030
: OPINION - vs - 12/9/2013 :
TIMOTHY W. LAZIER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 12CR28789
David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
Diehl & Hubbell, LLC, Martin E. Hubbell, 304 East Warren Street, Lebanon, Ohio 45036, for defendant-appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Timothy W. Lazier, appeals his conviction in the Warren
County Common Pleas Court for one count of failure to comply with an order or signal of a
police officer. Prior to trial, appellant moved to dismiss the charge due to the state's failure to
produce material evidence. The trial court denied appellant's motion. Appellant appeals
from the trial court's denial of his motion to dismiss and seeks reversal of his conviction. For Warren CA2013-03-030
the reasons set forth below, we affirm the judgment of the trial court.
{¶ 2} On November 11, 2012, Officer Steven Dunham of the Franklin Police
Department was driving a marked cruiser equipped with a video recording system. Dunham
was patrolling for a white Ford Explorer that was possibly involved in a theft in Middletown,
Ohio. While driving southbound, Dunham came upon appellant driving a white Ford Explorer
traveling northbound in Franklin, Warren County, Ohio. As Dunham believed appellant's
vehicle may have been the white Ford Explorer involved in the Middletown theft, Dunham
activated his overhead lights and sirens and turned his cruiser around to pursue appellant.
At this time, Dunham witnessed appellant's vehicle rapidly accelerating and continuing north.
{¶ 3} Initially, Dunham lost sight of appellant and traveled between 60 and 70 m.p.h.
in a residential area in order to catch up to appellant's vehicle. Dunham believed appellant
must have been traveling at speeds in excess of 60 m.p.h. in a 35 m.p.h. zone in order to
escape detection. Eventually, Dunham located appellant in his vehicle in the backyard of a
residence. The total distance of the pursuit was approximately six-tenths of a mile.
{¶ 4} Appellant claimed he was driving the speed limit the entire time Dunham was
allegedly in pursuit of him and had slowed down a number of times as he passed various
residences to determine whether friends and family members were at home. Eventually,
appellant arrived at the residence where he had been traveling to in order to sell "tools" to the
occupants. Appellant asserted he only saw Dunham's cruiser twice, did not believe Dunham
was in pursuit of him, did not alter his route because of Dunham, and did not pull into the
backyard of the residence to hide from Dunham.
{¶ 5} On January 22, 2013, appellant was indicted for failure to comply with an order
or signal of a police officer in violation of R.C. 2921.331(B). Appellant moved to dismiss the
case based upon the state's failure to produce the November 11, 2012 surveillance video
from Officer Dunham's cruiser. Appellant alleged this evidence was materially exculpatory to -2- Warren CA2013-03-030
the case. The trial court denied the motion on March 15, 2013 without a hearing.
{¶ 6} The case proceeded to a trial by jury on March 18, 2013, and appellant was
convicted on the failure to comply charge. Appellant was sentenced to serve six months in
jail and his driver's license was suspended for one year.
{¶ 7} From his conviction, appellant appeals, raising a single assignment of error:
{¶ 8} THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
DISMISS WITHOUT AN ORAL EVIDENTIARY HEARING.
{¶ 9} In his sole assignment of error, appellant argues the trial court violated his due
process rights by failing to hold an evidentiary hearing on his motion to dismiss based on the
missing surveillance video. Specifically, appellant alleges the trial court was required to hold
a hearing to determine whether the surveillance video contained exculpatory evidence that
appellant was not speeding, could not see Dunham's cruiser, was not fleeing, and did not fail
to comply with Dunham's signal or order. Appellant maintains that the state improperly
withheld this evidence and that, even if the evidence is only "potentially useful" to appellant
rather than exculpatory, his due process rights were violated because it is "plausible" the
video was destroyed in bad faith.
{¶ 10} Depending on the nature of the evidence, different tests are applied to
determine whether the unavailability of evidence amounts to the level of a due process
violation. State v. Gatliff, 12th Dist. Clermont No. CA2012-06-045, 2013-Ohio-2862, ¶ 40,
citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 73-77. "The state's failure to
preserve 'materially exculpatory' evidence, regardless of whether such failure was done in
good faith or bad faith, violates due process." Id., citing California v. Trombetta, 467 U.S.
479, 489, 104 S.Ct. 2528 (1984). 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 -3- Warren CA2013-03-030
reasonably available means." (Internal quotations omitted.) Id., quoting Powell at ¶ 74. The
defendant generally bears the burden of showing that the evidence was materially
exculpatory. Id., citing Powell at ¶ 74.
{¶ 11} However, "a different rule is used when the evidence is merely 'potentially
useful.'" Gatliff at ¶ 41, quoting State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, at ¶
9-10. "Unless a criminal defendant can show bad faith on the part of the police, failure to
preserve potentially useful evidence does not constitute a denial of due process of law." Id.,
citing Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333 (1988). Bad faith implies more
than bad judgment or negligence but, rather, "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." Id., citing Powell at ¶ 81.
{¶ 12} "With regard to procedure, we note that the denial of a motion to dismiss on the
ground that the government failed to preserve exculpatory evidence is reviewed de novo."
State v. Combs, 5th Dist. Delaware No. 03CA-C-12-073, 2004-Ohio-6574, ¶ 25; State v.
Johnson, 8th Dist. Cuyahoga No. 82527, 2003-Ohio-4569, ¶ 7; United States v. Wright, 260
F.3d 568, 570 (6th Cir.2001).
{¶ 13} We find appellant failed to meet his burden of proving that the surveillance
video was materially exculpatory and, therefore, that his due process rights were violated by
the state's failure to preserve the video or by the trial court's failure to hold an evidentiary
hearing on the matter. Appellant concedes the footage on the video is only "potentially
useful" and "could have" shown "the speed of appellant's vehicle, whether he could see the
officer's vehicle, and whether the movement of his vehicle was evasive." Appellant
acknowledges these facts only "could have" swayed the jury to find in favor appellant.
Appellant does not argue the video would have proved his innocence.
{¶ 14} Appellant's admissions demonstrate the video was not materially exculpatory. -4- Warren CA2013-03-030
Moreover, appellant was able to obtain comparable evidence by other reasonably available
means. Appellant cross-examined Dunham as to the speed of appellant's vehicle, whether
appellant could see Dunham's cruiser, and whether the movement of appellant's vehicle was
evasive. Appellant also testified he was not speeding, he only saw the officer's cruiser
briefly, and he was not fleeing from Dunham.
{¶ 15} Because the video did not provide any materially exculpatory evidence, our
inquiry turns to whether it would be potentially useful and whether the video was destroyed in
bad faith. Even assuming the video footage would have been potentially useful to appellant's
case, appellant fails to provide any evidence demonstrating that the video was destroyed in
bad faith. Appellant asserts that it is "plausible" the video was destroyed only after he filed
his motion to dismiss, therefore implying it was destroyed in bad faith. However, Dunham
testified at trial that the surveillance video was automatically uploaded from his cruiser to the
Franklin Police Department's system. Dunham stated he "didn't realize at the time" that the
video would be "purged" from the system unless "somebody goes in and checks the video
and marks it to be saved." When he realized the case was going to trial, Dunham "went back
to look for the video" but it had "already been purged from [the] system." Dunham testified
neither he nor the Franklin Police Department had any intention of destroying the video.
{¶ 16} As appellant's assertion that the video was destroyed in bad faith is solely
speculative, we find the trial court did not err by denying appellant's motion to dismiss without
holding an evidentiary hearing.
{¶ 17} Based upon the foregoing, appellant's sole assignment of error is overruled.
{¶ 18} Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.
-5-