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State v. Combs12/7/2004
On May 9, 2003, at approximately 9:00 p.m., Debra Bateman telephoned the Ohio Highway Patrol and reported a possible "DUI" driver. Ms. Bateman provided the dispatcher with the license plate number, description and location of the vehicle. Ohio State Highway Patrol Trooper Fraley was nearby and soon caught up to the suspect vehicle. The vehicle was being driven by appellant. After observing one or more lane violations and a wide turn into a fishing lane, Trooper Fraley stopped appellant's vehicle, activating his dash camera.
{ } The Trooper conducted field sobriety tests and an in-cruiser interrogation of appellant. The Trooper administered a portable breath test to appellant. It registered a negligible amount of alcohol. According to the Trooper, appellant admitted to smoking a joint earlier with his brother. Appellant was placed under arrest. Appellant subsequently submitted to urinalysis testing. The sample was tested and the presence of THC was found.
{ } A traffic complaint was filed against appellant in the Delaware Municipal Court. Appellant was charged with one count of driving while under the influence [hereinafter DUI], in violation of R.C. 4511.19(A)(1).
{ } On May 13, 2004, appellant's counsel filed a demand for discovery and a motion to preserve evidence. On May 19, 2004, the trial court granted the motion and ordered all evidence, including all video and audio recordings, to be preserved.
{ } On July 25, 2003, appellant filed a motion to dismiss. In the motion to dismiss, appellant argued that his due process rights had been violated when the State improperly destroyed a video tape of the stop and subsequent events and a recorded statement of a potential prosecution witness, namely a recording of Ms. Bateman's call to the State Highway Patrol. A hearing was conducted on July 31, 2003, and September 10, 2003. On September 16, 2003, the trial court issued a written decision which overruled appellant's motion to dismiss.*fn1
{ } Subsequently, on November 20, 2003, appellant entered a plea of no contest to one count of DUI, in violation of R.C. 4511.19(A)(1), and was found guilty. Appellant was then sentenced to 30 days in jail with 27 days suspended, given credit for three days served and ordered to complete "D.I.P." Appellant was fined $350.00 and placed on probation for six months. Lastly, appellant's driver's license was suspended for 180 days.
{ } Appellant filed a motion for stay of execution of sentence pending appeal. The trial court granted the motion.
{ } It is from this conviction and sentence that appellant appeals, raising the following assignments of error.
{ } "I. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO APPELLANT BY PLACING THE BURDEN OF PROOF ON THE APPELLANT TO SHOW THAT THE EVIDENCE, WHICH WAS DESTROYED BY THE STATE AFTER THE ARRESTING OFFICER RECEIVED A COURT ORDER TO PRESERVE IT WAS EXCULPATORY.
{ } "II. THE TRIAL COURT COMMITTED ERROR PREJUDICAL TO APPELLANT IN FINDING THAT OFFICER WHO KNOWINGLY DESTROYED THE VIDEO AND AUDIO TAPE EVIDENCE, AFTER RECEIVING THE COURT ORDER TO PRESERVE IT, DID NOT ACT IN BAD FAITH AND FURTHER FINDING THAT THE EVIDENCE WAS NOT EXCULPATORY.
{ } "III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT BY IN [SIC] NOT ALLOWING THE APPELLANT TO TESTIFY DURING AN EVID. R. 104(D) HEARING FOR THE LIMITED PURPOSES OF VERIFYING THE ACCURACY OF A DIAGRAM OF THE SCENE AND SHOWING THAT THE FIELD SOBRIETY TESTS WERE CONDUCTED IN FRONT OF THE CRUISER THE [SIC] DASH MOUNTED CAMERA, WITHOUT BEING SUBJECTED TO CROSS-EXAMINATION AS TO THE ULTIMATE ISSUE IN AN OMVI PROSECUTION."
I.
{ } In the first assignment of error, appellan
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