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State v. Moore6/6/2005
JUDGMENT: Affirmed
{ } On March 28, 2004, Canton Police Officers Michael Nordick and Vicky Sellers responded to a call regarding a suspicious vehicle. Upon arriving at the scene, it appeared the driver, appellant, Larry Moore, was asleep behind the wheel. The officers knocked on the window and eventually appellant woke up. Appellant did not talk to the officers but instead drove away. The officers chased him and broke his window after appellant stopped his vehicle for a red light. Upon investigation, the officers charged appellant with a felony count of failure to comply with order or signal of police officer in violation of R.C. 2921.331, driving under the influence in violation of R.C. 4511.19 and driving under suspension in violation of R.C. 4510.16.
{ } Thereafter, the Stark County Grand Jury indicted appellant on misdemeanor charges and sent the case to the municipal court. A jury trial commenced on July 20, 2004. The jury found appellant guilty as charged. By judgment entry filed July 21, 2004, the trial court sentenced appellant to a total aggregate term of one hundred eighty days in jail, all but thirty-one days suspended, ordered him to perform one hundred hours of community service and suspended his driver's license for three years.
{ } Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I.
{ } "THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION FOR THE STATE'S FAILURE TO PRESERVE EVIDENCE."
II.
{ } "THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL."
III.
{ } "THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO GRANT APPELLANT'S MOTION FOR MISTRIAL."
IV.
{ } "THE VERDICT IS AGAINST THE SUFFICIENCY/WEIGHT OF THE EVIDENCE."
I.
{ } Appellant claims the police destruction of the videotape of his stop deprived him of due process and a fair trial. We disagree.
{ } Pursuant to City of Canton police procedure, a videotape was made of appellant's chase and arrest on March 28, 2004:
{ } "A. It is the policy of the Canton Police Department that any officer operating a patrol car equipped with an in-car audio/video recording device shall activate the device and the 'to call' status button upon receiving a dispatched call. Officers shall activate the device upon all observation and traffic stops (whether pedestrian or vehicular), vehicle pursuits, and initial statements of motorists and witnesses at crash scenes. Officers shall also record such other events, situations, and circumstances, including but not limited to armed encounters, acts of violence, and felony activities. The recorder will not be deactivated until the call is complete." See, General Order, In-Car Mobile Audio/Video, Defendant's Exhibit A 1-4.
{ } The procedure also permits reuse of the videotape after thirty days:
{ } "B. When all new or unused tapes assigned to a vehicle have been used, the tape with the oldest recordings that have no evidentiary value and are a minimum of 30 days old will be erased and reused. The above information will again be added to the label."
{ } By motion filed July 7, 2004, appellant requested an order to preserve "all audio, video, handwritten, or electronically recorded contact information dealing with the stop, detention, arrest, transport, of and contact" with appellant. The trial court issued said order on July 8, 2004. Appellant's stop and arrest occurred on March 28, 200
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