State v. Nastick , 94 N.E.3d 139 ( 2017 )

[Cite as State v. Nastick, 2017-Ohio-5626.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28243
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ADAM D. NASTICK COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2015 03 0816
DECISION AND JOURNAL ENTRY
Dated: June 30, 2017
SCHAFER, Judge.
{¶1} Defendant-Appellant, Adam Nastick, appeals his convictions in Summit County
Court of Common Pleas. For the reasons that follow, this Court affirms.
I.
{¶2} On March 1, 2015, at approximately 6:58 p.m., Sergeant DeWitt of the Ohio State
Highway Patrol observed Nastick operating a silver Nissan above the posted speed limit.
Sergeant DeWitt followed the vehicle for a short time before activating the overhead lights on
his cruiser and initiating a traffic stop. At the beginning of the stop, a dispatcher informed
Sergeant DeWitt that Nastick had an active concealed carry permit. Upon establishing contact
with Nastick, Sergeant DeWitt informed him why he had stopped his vehicle and detected an
odor of alcohol emanating from inside the vehicle. After about two minutes, Sergeant DeWitt
asked Nastick if he had a weapon in his vehicle, to which Nastick replied he did.
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{¶3} Sergeant DeWitt then asked Nastick to exit the vehicle and perform standardized
field sobriety testing. Sergeant DeWitt stated he observed six out of the six possible clues on the
horizontal gaze nystagmus test (HGN), four out of eight possible clues on the walk-and-turn test,
and one out of four clues on the one leg stand test. Following the administration of the field
sobriety tests, Sergeant DeWitt placed Nastick under arrest for OVI. Consequently, Sergeant
DeWitt conducted an inventory search of Nastick’s vehicle before it was towed. Sergeant
DeWitt located Nastick’s firearm within the center console of his vehicle during an inventory
search.
{¶4} The Summit County Grand Jury indicted Nastick on the following charges: (I)
improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(D)(1), a felony of
the fifth degree; (II) carrying concealed weapons in violation of R.C. 2923.12(B)(1), a
misdemeanor of the first degree; and (III) operating a vehicle under the influence of alcohol
(OVI) in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree. Nastick pleaded
not guilty and the matter proceeded through the pretrial process.
{¶5} Nastick later filed a motion to suppress. After a hearing was held, Nastick also
filed a motion to dismiss and a supplemental motion to suppress. The trial court subsequently
denied Nastick’s motions. Pursuant to a Crim.R. 11 plea agreement, the State dismissed the
charge of improperly handling firearms in a motor vehicle and in exchange, Nastick pleaded no
contest to the charges of carrying concealed weapons and OVI. The trial court accepted
Nastick’s no contest plea and found him guilty of both charges.
{¶6} Nastick filed this timely appeal, raising two assignments of error for our review.
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II.
Assignment of Error I
The trial court erred in failing to grant Mr. Nastick’s motion to dismiss after
the state lost materially exculpatory evidence.
{¶7} In his first assignment of error, Nastick contends that the trial court erred when it
failed to grant his motion to dismiss after the state failed to preserve materially exculpatory
evidence. For the following reasons, we disagree.
{¶8} An appellate court reviews a trial court’s decision on a pre-trial motion to dismiss
de novo. State v. Franchi, 9th Dist. Summit No. 27797, 2016-Ohio-1195, ¶ 5. The Due Process
Clause of the Fourteenth Amendment to the United States Constitution protects an accused from
being convicted of a crime when the State either fails to preserve materially exculpatory
evidence or destroys, in bad faith, potentially useful evidence. California v. Trombetta, 467 U.S.
479, 489 (1984); Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Thus, “the suppression of
exculpatory evidence that is material to guilt or punishment violates due process without respect
to whether the [S]tate acted in bad faith.” (Emphasis sic.) State v. Jalowiec, 9th Dist. Lorain No.
14CA010548, 2015-Ohio-5042, ¶ 48. However, “[w]hen the State fails to preserve evidence that
is merely ‘potentially useful,’ a defendant must demonstrate that the [S]tate acted in bad faith.”
(Emphasis added.) Id., quoting Youngblood at 58; See also State v. Geeslin, 116 Ohio St. 3d 252,
2007-Ohio-5239, ¶ 9-10.
{¶9} “Specific tests are applied to determine whether the state’s failure to preserve
evidence rises to the level of a due process violation. The test depends on whether the lost or
destroyed evidence involves ‘material exculpatory evidence’ or ‘potentially useful evidence.’”
State v. Powell, 132 Ohio St. 3d 233, 2012-Ohio-2577, ¶ 73 (2012). Accordingly, we must first
determine whether the missing dash-cam video in this case is material to guilt or punishment or
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merely potentially useful. See Geeslin at ¶ 13. Potentially useful evidence is evidence “of which
no more can be said than that it could have been subjected to tests, the results of which might
have exonerated the defendant.” Youngblood at 57. Exculpatory evidence, on the other hand, is
defined as “evidence favorable to the accused which, if disclosed and used effectively, * * * may
make the difference between conviction and an acquittal.” State v. Whalen, 9th Dist. Lorain No.
08CA009317, 2008-Ohio-6739, ¶ 8, quoting State v. Rowe, 92 Ohio App. 3d 652, 666 (10th
Dist.1993). Evidence is materially exculpatory when: (1) the evidence possesses an exculpatory
value that was apparent before the evidence was destroyed, and (2) is of such a nature that the
defendant would be unable to obtain comparable evidence by other reasonable means.
Trombetta at 489. The Supreme Court of Ohio has held that, if “missing evidence would not
‘challenge the substance of the allegations [,]’ it ‘could not have been materially exculpatory
evidence.’” Franchi at ¶ 6, quoting Geeslin at ¶ 13.
{¶10} In this case, Sergeant DeWitt testified that it appeared the recording system in his
cruiser was working properly at the time of the stop since it recorded a video of Nastick’s
transport from the police station to the jail. Sergeant DeWitt stated that although the stop and
field sobriety tests were recorded on his cruiser’s dash-cam, the copy that was provided to the
State was “not readable” or “corrupted.” However, he also stated that he had no knowledge of
when the damage to the recording occurred and that he had not viewed the video. Sergeant
DeWitt attempted to produce another copy of the dash-cam video, but found the video was not
available in the highway patrol’s main database. As a result, the State was not able to provide
the dash-cam video to Nastick. On cross-examination, Sergeant DeWitt agreed that “whatever
happened [to the video] happened in the state’s database.”
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{¶11} Although no one ever viewed the video in this case, there is no dispute that the
dash-cam video captured the traffic stop at issue and subsequent field sobriety tests. “[S]uch
direct evidence is by its very nature either inculpatory or exculpatory, or some combination of
the two, and there is likely no ‘test’ of that footage that would be necessary to yield a result that
would exonerate the accused.” State v. Durham, 8th Dist. Cuyahoga No. 92681, 2010-Ohio-
1416, ¶ 16. Generally, the defendant bears the burden of proving that evidence was materially
exculpatory. State v. Glunt, 10th Dist. Franklin No. 09AP-962, 2010-Ohio-3024, ¶ 10.
However, “in cases where a defendant has made a specific request for preservation of a
particular piece of evidence and the evidence has been subsequently lost or destroyed, whether
inadvertently or not, the burden shifts to the state to show that the evidence was not material.”
Id. citing Columbus v. Forest, 36 Ohio App. 3d 169, 173 (10th Dist.1987); See State v. Dunn, 9th
Dist. Wayne No. 03CA0037, 2004-Ohio-2249, ¶ 63 (“If the State acts in bad faith by ignoring a
valid request to preserve evidence, the burden shifts to the State to show that the evidence was
not exculpatory.”); contra State v. Beavers, 2d Dist. Montgomery No. 24994, 2012-Ohio-6222, ¶
16 (declining to adopt the burden-shifting framework of Forest and holding that the burden is on
the defendant to show that evidence is not materially exculpatory). Nonetheless, the burden only
shifts to the State when the defendant has made a specific request regarding a particular piece of
evidence. Glunt at ¶ 10.
{¶12} Although the State does not dispute that Nastick requested the State to produce
the dash-cam video of the stop and field sobriety tests at issue, the State contends in its response
to the motion to dismiss that since Nastick only requested the video be produced and preserved,
the burden did not shift to the State to establish that the video was not materially exculpatory.
However, this distinction is not significant since “[b]y asking the state to produce the evidence,
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[Nastick] implicitly asked the state to preserve it until it was produced.” State v. Benton, 136
Ohio App. 3d 801, 806 (6th Dist.2000). As such, we conclude that the State bears the burden of
establishing that the missing dash-cam video in this case was not materially exculpatory. See
Glunt at ¶ 10.
{¶13} Sergeant DeWitt testified during the suppression hearing that he observed Nastick
driving above the posted speed limit at eighty-three miles per hour in a fifty-five mile per hour
zone. He then initiated a traffic stop of Nastick’s vehicle. A dispatcher informed Sergeant
DeWitt at the beginning of the stop that the Law Enforcement Automated Data System (LEADS)
indicated that Nastick had an active concealed carry permit. Upon establishing contact with
Nastick, Sergeant DeWitt informed him why he had stopped his vehicle and asked Nastick if he
was aware that he had been speeding. Nastick replied he was not. At that time, the Sergeant
detected a strong odor of alcohol emanating from inside the vehicle and observed Nastick’s eyes
to be red, bloodshot, and glassy and his speech to be slow. Sergeant DeWitt asked Nastick for
his driver’s license and insurance and observed that Nastick had tactile difficulties when
searching for his documentation. Sergeant DeWitt then asked Nastick if he had been consuming
any alcoholic beverage, to which Nastick responded he had a couple of drinks. After about two
minutes, Sergeant DeWitt asked Nastick if he had a weapon in his vehicle. Initially, the Sergeant
testified that Nastick stated that “he didn’t think that he had one in the car.” However, upon
cross-examination, the Sergeant was allowed to refresh his recollection by reading his report.
Sergeant DeWitt subsequently changed his testimony, testifying that Nastick stated “he did have
one in the center console” of his vehicle.
{¶14} Sergeant DeWitt then asked Nastick to exit the vehicle and asked him to perform
standardized field sobriety testing. The Sergeant stated that he administered the tests in
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substantial compliance with the National Highway Traffic Safety Administration (NHTSA)
guidelines. Sergeant DeWitt stated he observed six out of the six possible clues on the HGN test,
four out of eight possible clues on the walk-and-turn test, and one out of four clues on the one leg
stand test. On the walk-and-turn test, the Sergeant stated that Nastick did not touch heel to toe,
stepped off of the line while walking, and turned the wrong way. However, he could not recall
how far apart Nastick’s feet were when they did not touch heel to toe or how far “off line”
Nastick stepped. On the one leg stand test, Sergeant DeWitt observed Nastick to sway while
balancing. Although the Sergeant could not recall “exactly what [Nastick’s] swaying was,” he
stated that the clue was “evident and noticeable.”
{¶15} Following the administration of the field sobriety tests, Sergeant DeWitt placed
Nastick under arrest for OVI. Consequently, Sergeant DeWitt conducted an inventory search of
Nastick’s vehicle before it was towed. During the inventory search, Sergeant DeWitt located
Nastick’s firearm within the center console of his vehicle.
{¶16} Nastick did not offer any evidence or witness testimony at the suppression hearing
to refute Sergeant DeWitt’s testimony. Furthermore, there is no evidence in the record to
suggest that the dash-cam video would contradict Sergeant DeWitt’s testimony. Accordingly,
we conclude that the State met its burden of demonstrating that the missing dash-cam video was
not materially exculpatory. See State v. Cahill, 3d Dist. Shelby No. 17-01-19, 2002-Ohio-445, ¶
18 (determining that the State met its burden of demonstrating that a deleted videotape did not
have a materially exculpatory value given that the testimony of the troopers involved went
undisputed); State v. McClain, 2d Dist. Montgomery No. 26764, 2016-Ohio-838, ¶ 42
(concluding that the record did not support a conclusion that a missing video was materially
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exculpatory where the only evidence in the record came from a police officer’s testimony and
there was no evidence to suggest the video would contradict that testimony).
{¶17} Moreover, a missing recording “shall be deemed material only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” State v. Lupardus, 4th Dist. Washington No. 08CA31,
2008-Ohio-5960, ¶ 11. Here, we cannot find that the missing recording is material to guilt or
punishment for the OVI charge since the record still shows combined factors that would support
a finding of guilt even if the recording of the stop and field sobriety tests were excluded. See id.
at ¶ 12-13 (concluding that an erased tape was not “material either to guilt or to punishment”
when “the record still shows combined factors” that support a finding of guilt). Specifically, the
Sergeant testified that Nastick: (1) was speeding; (2) had the odor of alcohol on his breath; (3)
had tactile difficulties with his movements; (4) had red, bloodshot, and glassy eyes; (5) had slow
speech; (6) admitted to drinking alcohol; and (7) had performed poorly on the field sobriety tests.
{¶18} Therefore, we conclude that the State met its burden of showing that the missing
dash-cam video was not materially exculpatory.
{¶19} However, as the missing dash-cam video could have been useful to Nastick’s
defense, we must next determine if the State acted in bad faith. Geeslin, 116 Ohio St. 3d 252,
2007-Ohio-5239 at ¶ 14. Nastick has the burden of establishing that the State’s failure to
preserve the dash-cam video was done in bad faith. See Powell, 132 Ohio St. 3d 233, 2012-Ohio-
2577 at ¶ 77. “The term ‘bad faith’ generally implies something more than bad judgment or
negligence.” Id. at ¶ 81, quoting State v. Tate, 5th Dist. Fairfield No. 07 CA 55, 2008-Ohio-
3759, ¶ 13. “It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a
known duty through some ulterior motive or ill will partaking of the nature of fraud. It also
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embraces actual intent to mislead or deceive another.” Id., quoting Hoskins v. Aetna Life Ins.
Co., 6 Ohio St. 3d 272, 276 (1983).
{¶20} Sergeant DeWitt testified that the recording system in his cruiser is automatically
initiated when the overhead lights or the siren are activated and will continue to record until it is
shut off manually. Unfortunately, even though he followed standard operating procedure by
activating his lights and sirens, the copy of the recording that was provided to the State was “not
readable” or “corrupted.” He further stated that it appeared the recording system was working
properly at the time of the stop since it recorded a subsequent video of Nastick’s transport from
the police station to the jail. The Sergeant stated he did not watch the video before attempting to
make a copy for the State. When Sergeant DeWitt then attempted to produce another copy of the
dash-cam video, the video did not exist in the highway patrol’s main database. On cross-
examination, Sergeant DeWitt agreed that “whatever happened [to the video] happened in the
state’s database.” As a result, the State was not able to provide the dash-cam video to Nastick.
Again, Nastick did not offer any testimony or evidence at the hearing to contradict the Sergeant’s
testimony. Therefore, we conclude that based on the above circumstances, Nastick has failed to
demonstrate bad faith by the State.
{¶21} Accordingly, Nastick’s first assignment of error is overruled.
Assignment of Error II
The trial court erred when it found the trooper had probable cause to
effectuate a warrantless arrest for OVI.
{¶22} In his second assignment of error, Nastick contends that the trial court erred when
it denied his motion to suppress. Specifically, Nastick argues that the State failed to present
competent credible evidence from which the trial court could have determined that Sergeant
DeWitt had probable cause to arrest him for OVI because the Sergeant (1) did not observe him
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driving erratically; (2) did not observe him “pull over incorrectly;” (3) had “little independent
recollection of the indicators of impairment he allegedly observed;” and (4) could not testify “to
any level of specificity” with regard to the alleged indicators of impairment. We disagree.
{¶23} Appellate review of a trial court’s ruling on a motion to suppress presents a mixed
question of law and fact. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8. The trial
court assumes the role of trier of fact and is in the best position to evaluate witness credibility
and resolve factual issues. State v. Mills, 62 Ohio St. 3d 357, 366 (1992). Accordingly, an
appellate court must accept a trial court’s findings of fact when they are supported by competent,
credible evidence. State v. Roberts, 110 Ohio St. 3d 71, 2006-Ohio-3665, ¶ 100. However,
accepting those facts as true, the appellate court must independently determine, without
deference to the trial court’s conclusion, whether those facts satisfy the applicable legal standard.
Burnside at ¶ 8, citing State v. McNamara, 124 Ohio App. 3d 706 (4th Dist.1997).
{¶24} The Fourth Amendment to the United States Constitution and Section 14, Article
1 of the Ohio Constitution protect citizens from unreasonable searches and seizures. “In
determining whether police had probable cause to arrest an individual for operating a vehicle
while under the influence of alcohol, we must consider the totality of the facts and circumstances
existing at the moment of arrest.” State v. Walters, 9th Dist. Medina No. 11CA0039-M, 2012-
Ohio-2429, ¶ 9, citing State v. Homan, 89 Ohio St. 3d 421, 427 (2000) (superseded by statute on
other grounds as set forth in R.C. 4511.19(D)(4)(b)). “Probable cause exists if, ‘at the moment
of arrest, the police had sufficient information, derived from reasonable trustworthy source of
facts and circumstances, sufficient to cause a prudent person to believe that the suspect was
driving under the influence.’” Id. “The amount of evidence necessary for probable cause to
suspect a crime is being committed is less evidence than would be necessary to support a
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conviction of that crime at trial.” State v. McGinty, 9th Dist. Medina No. 08CA0039-M, 2009-
Ohio-994, ¶ 11. Furthermore, “the totality of the facts and circumstances can support probable
cause for an arrest even in the absence of the administration of field sobriety tests.” State v.
Russo, 9th Dist. Medina No. 09CA0009-M, 2009-Ohio-6914, ¶ 10.
{¶25} As discussed above, there was testimony presented at the suppression hearing that
Sergeant DeWitt observed that Nastick was speeding, had the odor of alcohol on his breath, had
tactile difficulties with his movements, had red, bloodshot, and glassy eyes, had slow speech,
admitted to drinking alcohol. Additionally, Sergeant DeWitt testified that he observed six out of
the six possible clues on the HGN test and four out of eight possible clues on the walk and turn
test. On the walk and turn test, the Sergeant stated that Nastick did not touch heel to toe, stepped
off of the line while walking, and turned the wrong way. Nonetheless, he could not recall how
far apart Nastick’s feet were when they did not touch heel to toe or how far “off line” Nastick
stepped. The Sergeant stated that these tests were administered in compliance with the National
Highway Traffic Safety Administrative (NHTSA) Guidelines.
{¶26} In light of the totality of the circumstances before the trial court, we cannot say
the trial court erred in concluding that Sergeant DeWitt had probable cause to arrest Nastick for
OVI.
{¶27} Therefore, Nastick’s second assignment of error is overruled.
III.
{¶28} Nastick’s assignments of error are overruled and the judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
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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.
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 Appellant.
JULIE A. SCHAFER
FOR THE COURT
HENSAL, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
THOMAS M. DICAUDO and BENJAMIN R. SORBER, Attorneys at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.