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State v. Antonellis10/6/2005
JUDGMENT: Affirmed
{ } Defendant Donald Antonellis appeals a judgment of the Municipal Court of Licking County, Ohio, convicting and sentencing him for operating a motor vehicle with a prohibited concentration of alcohol on his breath. Appellant assigns two errors to the trial court:
{ } "I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO DISMISS BASED UPON THE DESTRUCTION OF THE VIDEOTAPE EVIDENCE.
{ } "II. THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE AT THE SUPPRESSION HEARING AND AT TRIAL, EVIDENCE OF STANDARDIZED FIELD SOBRIETY TESTS THAT WERE NOT ADMINISTERED TO DEFENDANT IN STRICT COMPLIANCE WITH THE NHTSA REQUIREMENTS."
{ } At the hearing on appellant's motion to suppress evidence gathered at the traffic stop, Trooper Chad Maines of the State Highway Patrol testified he stopped appellant's motor vehicle at 2:27 a.m. on August 14, 2004 after he clocked him going 68 m.p.h. in a 55 m.p.h. zone. The officer testified his patrol car was equipped with a functioning video camera and he was wearing a microphone, but the microphone did not work properly.
{ } The trooper testified when he approached appellant, he observed a strong odor of alcoholic beverage, appellant's eyes were red and glassy, and he was soaked in sweat. Appellant admitted having three drinks. The officer then asked him to step out of the vehicle to perform field sobriety tests.
{ } Trooper Maines testified how he administered the horizontal gaze nystigmus test, but on cross the trooper admitted he varied slightly from the NHTSA manual. The trooper testified appellant did not perform well on the heel-to-toe and walk-and-turn tests. Trooper Maines testified he also had appellant do the finger-to-nose test, which is not a standardized field sobriety test. The video tape of this test was inadvertently taped over later. The officer had no recollection of the finger-to-nose test and had made no notes on it. The trooper stated he was unable to testify regarding appellant's performance on the finger-to-nose test.
{ } Appellant submitted to a portable breath test, which registered .088. Trooper Maines testified at that point he determined appellant was under the influence of alcohol, and arrested him. Thereafter, appellant was transported to the Grandville Post of the Highway Patrol for a breath test using a BAC DataMaster. The breath test yielded a result of .085.
I.
{ } Appellant moved the court to preserve all evidence in the case, including any and all video tapes. Appellee conceded the tape was partially taped over, apparently due to a malfunction of the video camera. Appellant moved to dismiss the charges against him based upon the destruction of the video tape evidence. In its judgment entry of November 30, 2004, the trial court overruled the motion to dismiss, citing our case of State v. Canter, Fairfield App. No. 01CA51, 2002-Ohio-3473. The court found appellant had not asserted the tape contained exculpatory evidence and had not shown any agent of the State was guilty of bad faith.
{ } Appellant cites us to several cases, including the Ottawa County Court of Appeals' decision in State v. Benton (2000), 136 Ohio App. 3d 801, 737 N.E. 2d 1046; Columbus v. Forest (1987), 36 Ohio App. 3d 169, out of the Franklin County Court of Appeals, and State v. Benson, 152 Ohio App. 3d 495, 2003-Ohio-1944, 788 N.E. 2d 693 from the Hamilton County Court of Appeals. These courts have held where the defendant moves to have evidence preserved but the evidence is destroyed, the burden shifts to the State to show it was not materially exculpatory.
{ } In Canter, supra, this court discussed and rej
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