State v. Woelke

[Cite as State v. Woelke, 2017-Ohio-4034.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-16-27
v.
MARK D. WOELKE, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-16-28
v.
MARK D. WOELKE, OPINION
DEFENDANT-APPELLANT.
Appeals from Seneca County Common Pleas Court
Trial Court Nos. 15CR0256 and 16CR0032
Judgments Affirmed
Date of Decision: May 30, 2017
APPEARANCES:
Dorothy L. Williams for Appellant
Angela M. Boes for Appellee
Case No. 13-16-27, 13-16-28
SHAW, J.
{¶1} Defendant-appellant, Mark D. Woelke (“Woelke”), appeals the October
28, 2016 judgment of the Seneca County Court of Common Pleas, in case number
15CR0256, journalizing his conviction by a jury for one count of Burglary, in
violation of R.C. 2911.12(A)(3),(D), a felony of the third degree, and sentencing
him to a prison term of thirty-six months. Woelke also appeals the October 28, 2016
judgment of the Seneca County Court of Common Pleas, in case number 16CR0032,
journalizing his conviction by a jury for six counts of Burglary, in violation of R.C.
2911.12(A)(2),(D), all felonies of the second degree, and three counts of Grand
Theft of a Motor Vehicle, in violation of R.C. 2913.02(A)(1),(B)(5), all felonies of
the fourth degree, and sentencing him to an aggregate prison term of eighteen years
and thirty-six months to run consecutive to his prison term imposed in case number
15CR0256.
{¶2} On appeal, Woelke assigns as error the trial court’s decision overruling
his motions to compel and motions for acquittal. Specifically, Woelke challenges
the trial court’s finding that the investigating detective’s notes, which were not
disclosed in discovery by the prosecution, were not exculpatory evidence.
Facts and Procedural History
{¶3} On October 19, 2015, at 11:50 a.m., Officer Gabriel Wedge of the
Fostoria Police Department was traveling to his office from his residence in Seneca
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County when he observed a female driving a vehicle suspected to be involved in a
number of daytime burglaries and thefts in the area. Officer Wedge followed the
vehicle to his neighbor’s home and witnessed Woelke exit the home and throw
something into the trunk of the vehicle, which was later determined to be a flat
screen television. Knowing that Woelke was not a resident of the home, Officer
Wedge pulled into the driveway to attempt to block the vehicle from leaving, but
Woelke, who was now in the driver’s seat, was able to drive through the adjacent
field and around Officer Wedge’s vehicle. Detective Wedge pursued the vehicle in
a high-speed chase, but eventually lost track of it in Wood County and decided to
stop the pursuit due to the fact that the rate of speed at times was dangerously high
and that he was driving an unmarked vehicle which did not have lights or sirens.
{¶4} Officer Wedge was later able to determine the identity of the female he
observed driving the car as Jennifer Godsey. Woelke was indicted for a third degree
felony burglary offense, in case number 15CR0256, to which he entered a plea of
not guilty. Godsey was also indicted for complicity to burglary. Godsey eventually
entered into a plea agreement with the prosecution and agreed to provide
information regarding the burglaries and thefts. Godsey revealed that she helped
Woelke break into numerous homes and buildings to steal personal property from
April 2015 to October 2015. She explained that Woelke chose a property to enter
looking for ATVs, guns, televisions, money or jewelry. She then drove around the
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area while Woelke was in the home or out structure and, after sufficient time had
passed, she circled back to pick him up with the stolen items. The two then drove
to Toledo to exchange the objects for heroin, or sometimes money, that they
received from a drug dealer named “Freddie.” The pair then returned to Woelke’s
mother’s home where they used the drugs. They stayed at the home for days or
weeks at time, depending on how much heroin they received. Once they consumed
all the drugs in their possession they set out to find another residence to burglarize.
{¶5} On January 6, 2016, Godsey agreed to ride in a vehicle with Detective
Reinbolt of the Seneca County Sheriff’s Office and the investigator from the Seneca
County Prosecutor’s Office. The three drove around the county as Godsey
identified the locations where Woelke committed the burglary and theft offenses.
She also recalled the items that were taken from each location and the mode of
Woelke’s entry. Detective Reinbolt wrote down the addresses and information as
Godsey relayed it. Detective Reinbolt returned to his office and cross checked the
addresses and details of the offenses in his database, which confirmed the
information given by Godsey.
{¶6} On February 18, 2016, in case number 16CR0032, an eleven count
indictment was returned against Woelke alleging that Woelke committed eight
counts of second degree felony Burglary and three counts of Grand Theft of a Motor
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Vehicle, each a fourth degree felony. Woelke entered pleas of not guilty to the
charges and the case proceeded to discovery.
{¶7} On September 15, 2016, the trial court granted the prosecution’s motion
to consolidate case number 15CR0256 and case number 16CR0032 for purposes of
trial.
{¶8} On October 13, 2016, Woelke filed a Motion to Compel Additional
Discovery in each case claiming that the prosecution had failed to provide certain
requested discovery, including any written or recorded statements made by Godsey
during the course of the investigation, as well as any investigative reports or notes
made by law enforcement. The prosecution filed a response claiming it had fully
complied with the discovery request.
{¶9} On October 17, 2016, the trial court granted the prosecution’s motion
to dismiss with prejudice Counts Ten and Eleven of the indictment in case number
16CR0032.
{¶10} On October 25, 2016, the case proceeded to a two-day jury trial on the
remaining charges. Prior to opening statements, and outside the presence of the
jury, the trial court addressed the pending motions to compel with the parties on the
record. Defense counsel raised an issue with respect to a reference made by
Detective Reinbolt in a recorded interview with Godsey to handwritten notes
Detective Reinbolt had taken during the “ride-along” with Godsey. The defense
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claimed that they had not received any handwritten investigation notes from the
prosecution in discovery despite the specific request being made. (Tr. Trans. at 142,
144). The prosecution explained that any material or notes used in the investigation
in relation to Godsey’s interview was incorporated into Detective Reinbolt’s
investigation report. The prosecutor further contended that any and all notes were
work product and were destroyed after they were compiled into the formal report,
which was provided to the defense in discovery. (Id. at 143).
{¶11} The prosecutor informed the trial court that she had not seen the notes
and conferred with Detective Reinbolt who relayed to her that the notes in question
“consisted only of five different addresses on a piece of paper when [Detective
Reinbolt and Godsey] went to the location in the County where many of [the]
reported burglaries had occurred. There weren’t many notes taken on them at all.
What the notes consisted of were basically the location, what—was entry made,
how was entry made, was Ms. Godsey with the Defendant at the time and what
items were stolen from the locations. ” (Tr. Trans. at 162).
{¶12} The prosecutor confirmed that the handwritten notes had been
destroyed, but the contents were rewritten in Detective Reinbolt’s formal
investigation report and that there was no intention to conceal the contents from the
defense. Moreover, the prosecutor stated that the State planned on calling both
Godsey and Detective Reinbolt to the stand during its case-in-chief. Woelke’s
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defense counsel renewed the objection asserting that the prosecution had failed to
comply with its discovery request and moved for acquittal. The trial court overruled
the motions for acquittal and motions to compel additional discovery concluding
that the defense’s discovery request had fully been complied with by the State and
therefore there was no ground for acquittal on that basis.
{¶13} The case continued to trial where the State presented the testimony of
thirteen witnesses, including Godsey and Detective Reinbolt, and the defense
presented the testimony of two witnesses in its case. In addition, the recorded
interview with Godsey, which provided the basis for the defense’s discovery
objection, was also played for the jury at trial on Godsey’s cross-examination by the
defense. The jury returned a verdict convicting Woelke of one count of third degree
felony Burglary in case number 15CR0256, and six counts of second degree felony
Burglary and three counts of fourth degree felony Grand Theft of Motor Vehicle in
case number 16CR0032.
{¶14} Woelke filed this appeal, asserting the following assignment of error.
THE TRIAL COURT ERRED IN RULING THAT THE
DETECTIVE’S NOTES WERE NOT EXCULPATORY
EVIDENCE.
{¶15} In his sole assignment of error, Woelke contends that Detective
Reinbolt’s handwritten notes taken during the January 2016 “ride along” with
Godsey, which the record indicates were subsequently incorporated into Detective
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Reinbolt’s final report and destroyed, were exculpatory evidence that the
prosecution should have disclosed in discovery and that the State’s failure to do so
violated his due process rights.
Discussion of the Handwritten Notes
in the Recorded Interview
{¶16} As previously indicated, the recorded interview of Godsey with
Detective Reinbolt was played for the jury at trial during Godsey’s cross-
examination by defense counsel. The interview took place approximately a week
after Godsey completed the “ride along” with Detective Reinbolt and Mr. Noffs, the
investigator with the county prosecutor’s office. The record demonstrates that the
contents of the interview are duplicative of the testimony given by Godsey and
Detective Reinbolt at trial.
{¶17} In the interview, Godsey gave a general background on how she and
Woelke met, described the pattern of conduct they employed to facilitate the
burglaries and thefts, and their motive for committing the offenses. Detective
Reinbolt explained to Godsey during the interview that he had written down the
addresses of the locations she had identified on the ride along and took pictures of
the properties.
Det. Reinbolt: Okay. Okay. So what I’m going to do now is I’m
just going to show you pictures. What I did is after we went out
last Wednesday, I wrote down the addresses and I went out and
took pictures of the residences. I just need you to confirm. I’m
going to show you pictures. And if you’re not sure, say it. If you,
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you know, just let me know. And on each one just let me know
what you believe was stolen. If you were there. And all that good
stuff, okay.
Mr. Noffs: Now, these houses, these are the houses that she
pointed out to us.
Det. Reinbolt: Correct, correct.
Mr. Noffs: We did not, you told us all along as we were driving
down the road, you would tell us if this is the one house.
Godsey: Correct.
Det. Reinbolt: None, there’s none that’s added here to try and
trick you or left out. These are all the addresses, all the residences
that you took us to last week, okay.
Godsey: uh-huh.
(Tr. Trans at 326-27). At trial, Woelke’s defense counsel highlighted the following
exchange on the recorded interview to insinuate that Detective Reinbolt’s
handwritten notes were material exculpatory evidence.
Det. Reinbolt: Okay. Okay. This one, I forgot the picture, but this
is one that you, it was 11267 West Township Road 35. And it was
a burglary. And let me just see if this is on the report.
Mr. Noffs: She pointed this house out.
Det. Reinbolt: She pointed this house out. Yeah. I just don’t have
a picture. Shotgun and a flat, 55-inch flat screen TV was stolen.
Godsey: Yeah.
Det. Reinbolt: Does that ring a bell?
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Godsey: It does. The shotgun does because I (inaudible)
anything. He had put a thing—I don’t know what the house
looked like.
Det. Reinbolt: Right. I apologize. But he forced his way into this
house?
Godsey: Yes.
Det. Reinbolt: Okay.
Mr. Noffs: And we should note that they, that that incident and
in your notes of that house that you pointed out to us under that—
Godsey: Is this the one where he was trying to take meat out of
the, out of the freezer?
Detective Reinbolt: That’s Sandusky County.
(Tr. Trans at 328-30). At this point, defense counsel stopped the audio recording of
Godsey’s interview and questioned Godsey about Detective Reinbolt’s notes on the
stand at trial.
Defense Counsel: All right. So I assume you were listening along,
Ms. Godsey?
Godsey: Yes.
Defense Counsel: And the detective mentioned that he took some
notes and was referencing notes to refresh your memory; is that
right?
Godsey: No, sir.
Defense Counsel: You didn’t hear that?
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Godsey: They weren’t refreshing my memory with any of their
notes. There were two places I was getting confused, and one of
them was in a separate county.
Defense Counsel: Okay. But they indicated that they had taken
notes and they were refreshing your memory. No? You’re saying
that didn’t happen?
Godsey: They never relayed information from their notes to me.
Everything that I said was by my own free will. They never told
me to say anything or reminded me of anything. They simply
showed me pictures and I told them how he got in and what he
took.
(Tr. Trans at 330-31).
Relevant Law
{¶18} Whether the State’s failure to preserve evidence rises to the level of a
due process violation 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. Evidence is constitutionally material
when it possesses “an exculpatory value that was apparent before the evidence was
destroyed, and [is] of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.” Id. at ¶ 74, quoting
California v. Trombetta, 467 U.S. 479, 489 (1984). If evidence is materially
exculpatory, its suppression violates a defendant’s due process rights, and requires
dismissal of the charge. State v. Glunt, 10th Dist. Franklin No. 09AP-962, 2010-
Ohio-3024, ¶ 9, citing State v. Johnston, 39 Ohio St.3d 48 (1988). If the evidence
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in question is not materially exculpatory, but only potentially useful, the defendant
must show bad faith on the part of the State in order to demonstrate a due process
violation. Powell at ¶ 77, quoting State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-
5239, ¶ 10.
Analysis
{¶19} Woelke contends on appeal that Detective Reinbolt’s handwritten
notes were material to determine whether the notes were consistent with Detective
Reinbolt’s investigative report and his testimony regarding the interview with
Godsey. However, the record does not support Woelke’s characterization of the
handwritten notes as either “material” or “exculpatory.” Godsey provided similar,
detailed testimony at trial to that given in the narrative by the State and disputed
defense counsel’s claim that Detective Reinbolt used his notes to refresh her
memory during her interview. Moreover, Detective Reinbolt’s testimony provided
the only evidence in the record regarding the nature of these handwritten notes,
which he stated consisted of five addresses of possible locations where the
burglaries had occurred. He testified that he did not show or mention the addresses
on the piece of paper to Godsey during the ride along.
{¶20} The prosecution also presented additional evidence which supported
the jury’s verdicts convicting Woelke of the burglary and theft offenses. For
example, Officer Wedge testified to the events on October 19, 2015, that led to the
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apprehension of Woelke and Godsey for the burglary offense charged in case
number 15CR0256. Detective Reinbolt also testified that at several of the crime
scenes law enforcement had found physical evidence, such as a single shoe print
consistent with the size of a male footprint on a door indicating a forced entry, as
well as images from a trail camera of a male, who Godsey identified at trial as
Woelke, making a forced entry into one of the homes.
{¶21} Based upon the evidence presented at trial, Woelke has failed to
demonstrate that Detective Reinbolt’s handwritten notes possessed any exculpatory
value that was apparent before they were destroyed and were of such a nature that
Woelke would be unable to obtain comparable evidence by other reasonably
available means. Furthermore, Woelke has not established that there was a
reasonable probability that the result of the proceedings would have been different
if these handwritten notes had been disclosed to the defense. See State v. Johnston,
39 Ohio St.3d 48, 61 (1988), citing U.S. v. Bagley, 473 U.S. 667, 682 (1985).
{¶22} Moreover, we note that at trial defense counsel objected based upon
the prosecution’s failure to preserve “potentially exculpatory evidence,” however
we find that on appeal Woelke has failed to demonstrate that the State acted in bad
faith in failing to preserve Detective Reinbolt’s handwritten notes. (Tr. Trans. at
438); See State v. Mapp, 3d Dist. Union No. 14-10-34, 2011-Ohio-4468, ¶ 25 (“[I]f
evidence is not materially exculpatory, but only ‘potentially useful,’ the State’s
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failure to preserve it does not violate due process unless the defendant can show the
State acted in bad faith.”). “Bad faith implies something more than mere bad
judgment or negligence; rather, ‘[i]t 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.’ ” Glunt, 2010-Ohio-3024 at ¶ 16, quoting
State v. Benson, 152 Ohio App.3d 495, 2003-Ohio-1944, ¶ 14 (1st Dist.) (citations
omitted); Powell, 2012-Ohio-2577 at ¶ 81. Any indication of such conduct on
behalf of the State is simply not present in the record.
{¶23} Accordingly, we do not find that the trial court erred in overruling
Woelke’s motions to compel additional discovery and motions for acquittal on the
basis of the State’s failure to preserve Detective Reinbolt’s handwritten notes.
{¶24} The assignment of error is overruled and the judgments are affirmed.
Judgments Affirmed
PRESTON, P.J. and ZIMMERMAN, J., concur.
/jlr
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