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State v. Hill6/24/2005
Judgment: Affirmed.
{ } Raymond Hill appeals from the judgment of the Chardon Municipal Court, which denied his motion to dismiss or in the alternative suppress. We affirm.
{ } On the evening of May 16, 2004, Hill was driving east on State Route 166 in his 1968 Firebird. Sergeant Hulewat of the Ohio State Highway Patrol was traveling west on State Route 166 and clocked Hill's speed at 72 m.p.h., (the speed limit was 55 m.p.h.) Hulewat activated his pursuit lights, turned around, and stopped Hill, who pulled into a private driveway on the south side of Route 166.
{ } Hulewat and Hill exited their cars. Hulewat asked Hill for his driver's license and registration. As he talked to Hill, Hulewat noticed an odor of alcoholic beverage on Hill. Hulewat asked Hill to perform the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand. Hill also submitted to a portable breath test. Based on the results of these tests, Hulewat arrested Hill for driving under the influence of alcohol. R.C. 4511.19.
{ } Hill filed a request for discovery on May 24, 2004. Hill's counsel learned from the Impaired Driver Report that a video recording device was used during the stop and requested an opportunity to review the tape pursuant to the request for discovery. On June 15, 2004, Hill's counsel delivered a blank videotape to the highway patrol post so the tape could be copied. On that same day, Hill's counsel received a telephone message stating the stop had not been recorded. Hill's counsel requested and received written confirmation to this effect.
{ } Hill filed a motion to dismiss or in the alternative, suppress, based on the state's alleged failure to preserve the videotape. The trial court heard the motion and subsequently entered an order denying it. Hill then entered a plea of no contest and was found guilty. Hill filed a timely appeal of the trial court's judgment raising two assignments of error:
{ } "[1.] The trial court erred in overruling defendant-appellant's otion to ismiss because the tate failed to preserve materially exculpatory evidence.
{ } "[2.] The trial court erred to the prejudice of defendant-appellant in overruling defendant-appellant's otion to upress vidence."
{ } The Due Process Clause of the Fourteenth Amendment protects a criminal defendant from conviction for a crime where the state fails to preserve materially exculpatory evidence, or destroys in bad faith useful evidence. State v. Benton (2000), 136 Ohio App.3d 801, 805, citing California v. Trombetta (1984), 467 U.S. 479, 489, Arizona v. Youngblood (1988), 488 U.S. 51, 58, rehearing denied (1989), 488 U.S. 1051. "Evidence is materially exculpatory where: (1) the evidence possesses an exculpatory value that was apparent before the evidence was destroyed, and (2) is of such nature that the defendant would be unable to obtain comparable evidence by other reasonable means." Id. citing Trombetta, 467 U.S. at 489.
{ } In the instant case, Hill, relying on Benton, argues the trial court should have dismissed the charges against him because the state failed to preserve the video tape of his traffic stop. We disagree.
{ } The defendant generally has the burden to show the lost or destroyed evidence is materially exculpatory. Id. However, some courts have shifted the burden to the state, and required the state to show the evidence was not materially exculpatory where a defendant moves to have evidence preserved and the evidence is destroyed in accordance with normal procedures. Id., citing Columbus v. Forest (1987), 36 Ohio App.3d 169, 173.
{ } In Benton, the defendant sought disco
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