[Cite as State v. Franchi,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 27797

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE RITZI C. FRANCHI COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CR 2014 08 2512

DECISION AND JOURNAL ENTRY

Dated: March 23, 2016

HENSAL, Presiding Judge.

{¶1} The State of Ohio appeals a journal entry of the Summit County Court of

Common Pleas that granted Ritzi Franchi’s motion to dismiss the indictment. For the following

reasons, this Court reverses.

I.

{¶2} On August 18, 2014, Akron Police Officer Natalie Tassone stopped Mr. Franchi

after she noticed that his vehicle did not have a windshield and that he failed to use his turn

signal. According to Officer Tassone, shortly after she approached, Mr. Franchi gave her

permission to search his vehicle. During the search, she found a bag with cocaine. The Grand

Jury subsequently indicted Mr. Franchi for possession of cocaine.

{¶3} Mr. Franchi moved to suppress the evidence Officer Tassone found during the

search. At a hearing on his motion, Mr. Franchi denied that he gave her permission to search his

vehicle, testifying that she never even asked. Officer Tassone explained that, although her 2

cruiser’s audio and video recording equipment was activated during the stop, the hard drive that

contained the recording of the stop had been recorded over by the time of the hearing.

Accordingly, there was no independent evidence to establish whether Mr. Franchi consented to

the search. The court found that Mr. Franchi voluntarily consented to the search, and it denied

his motion to suppress.

{¶4} After the hearing, Mr. Franchi moved to dismiss the indictment, alleging that the

State withheld or spoiled evidence. At a hearing on his motion, Mr. Franchi noted that he made

a request for discovery before the hard drive containing the audio and video of his stop was

erased. Upon review of the motion, the trial court explained that, because the State failed in its

duty to preserve the evidence and the evidence was not obtainable by other means, it would place

the onus on the State to show that the recording did not contain materially exculpatory evidence.

Because the State could not demonstrate that the recording did not contain such evidence, the

court concluded that the destruction of the recording violated Mr. Franchi’s due process rights.

Consequently, it explained that it had to credit Mr. Franchi’s account of the traffic stop.1 Upon

reconsideration of the evidence, it concluded that the State failed to establish that Mr. Franchi

voluntarily consented to the search of his vehicle. It, therefore, granted Mr. Franchi’s motion to

dismiss. The State has appealed, assigning as error that the trial court erred when it reconsidered

the motion to suppress and dismissed the indictment.

1 Instead of simply imposing a sanction for the alleged due process violation, it appears that the trial court may have proceeded to reconsider its ruling on Mr. Franchi’s motion to suppress. The court dismissed the indictment after finding that Mr. Franchi did not consent to the search of his vehicle. The State has not contested the method by which the court arrived at its ultimate decision. 3

ASSIGNMENT OF ERROR

THE COURT ERRED IN RECONSIDERING THE MOTION TO SUPPRESS AND DISMISSING THE INDICTMENT.

{¶5} The State argues that the trial court misapplied the law when it presumed that the

hard drive contained material exculpatory evidence. We review the trial court’s decision on a

pre-trial motion to dismiss de novo. State v. Saxon, 9th Dist. Lorain No. 09CA009560, 2009-

Ohio-6905, ¶ 5.

{¶6} If “the prosecution withholds material, exculpatory evidence in a criminal

proceeding, it violates the due process right of the defendant * * * to a fair trial.” State v.

Johnston,

(1988). If it is not clear whether the evidence that the State failed

to preserve could have exonerated the defendant, however, the defendant “must show bad faith

on the part of the state in order to demonstrate a due process violation.” State v. Geeslin,

,

, ¶ 10. The Ohio Supreme Court has held that, if the missing

evidence would not “challenge the substance of the allegations[,]” it “could not have been

materially exculpatory evidence * * *.” Id. at ¶ 13. In Geeslin, the Supreme Court held that,

because the evidence contained on a missing videotape would only have been used “to refute [a

state trooper’s] stated reasons for stopping” the defendant and not “for the purpose of

establishing [his] guilt or innocence[,]” the defendant had to demonstrate that the state acted in

bad faith when it lost the tape. Id. at ¶ 12, 14.

{¶7} In this case, Officer Tassone inadvertently recorded over the conversation that

she had with Mr. Franchi before she searched his vehicle. The recording may have established

that Mr. Franchi did not give her permission to search his car. It is not alleged that the recording

would have contained evidence regarding whether he was in possession of cocaine. We,

therefore, conclude that the trial court incorrectly found that the tape contained material 4

exculpatory evidence. Geeslin at ¶ 14. Unlike in State v. Benton,

(6th

Dist. 2000), which the trial court relied on, the tape at issue in this case could not have contained

materially exculpatory evidence. Compare

(explaining that tape would have

contained evidence relating to DUI charge); State v. Benson,

, 2003-Ohio-

1944, ¶ 12 (1st Dist.) (same).

{¶8} Because the recording of the traffic stop could not have contained material

exculpatory evidence, it was Mr. Franchi’s burden to establish that the State acted in bad faith

when it deleted or recorded over it. The trial court specifically found that it had “not found any

bad faith in this case by the Akron Police Department.” Accordingly, we conclude that the trial

court incorrectly held that the State violated Mr. Franchi’s due process rights. The State’s

assignment of error is sustained.

III.

{¶9} Because the missing recording would not have contained material exculpatory

evidence, the trial court erred when it placed the burden on the State to demonstrate that the

recording did not contain such evidence. The judgment of the Summit County Court of

Common Pleas is reversed, and this matter is remanded for further proceedings.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 5

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

JENNIFER HENSAL FOR THE COURT

CARR, J. SCHAFER, J. CONCUR.

APPEARANCES:

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellant.

KANI HARVEY HIGHTOWER, Attorney at Law, for Appellee.