State v. Walker

[Cite as State v. Walker, 2022-Ohio-1684.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 20AP-95
(C.P.C. No. 16CR-5764)
v. :
(REGULAR CALENDAR)
Traver D. Walker, :
Defendant-Appellant. :
D E C I S I O N
Rendered on May 19, 2022
On brief: [G. Gary Tyack], Prosecuting Attorney, and
Michael P. Walton, for appellee. Argued: Michael P. Walton.
On brief: Campbell Law, LLC, and April F. Campbell, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} Defendant-appellant, Traver D. Walker, appeals from the decision of the
Franklin County Court of Common Pleas overruling his motion to dismiss an indictment
charging him with two counts of assault under R.C. 2903.13 and one count of harassment
with a bodily substance under R.C. 2921.38, as well as the jury verdict convicting him of
one of the assault charges. After his timely appeal, the state filed a motion to revoke
Mr. Walker's bond and to dismiss the appeal under the fugitive disentitlement doctrine
because he "has been on the run and has not reported to his supervising officer." (June 23,
2020 Memo. in Supp. at 5.) Based on the state's concession at oral argument that
Mr. Walker was in custody and there were no outstanding capias orders for his arrest, we
No. 20AP-95 2
overrule the motion as moot.1 With regard to Mr. Walker's appeal, for the reasons that
follow, we affirm the trial court's ruling on the motion to dismiss and the judgment of
conviction.
{¶ 2} On October 17, 2016, the state indicted Mr. Walker. The indictment
identified police officers as the alleged victims of each offense. Mr. Walker's motion to
dismiss stated that the officers had responded to a domestic violence call on October 7,
2016, arising from an argument between himself and his mother. (Jan. 3, 2018 Mot. to
Dismiss at 2.) Mr. Walker claimed that while the officers were arresting him, his girlfriend
had "videotaped [his] abuse at the hands of the Columbus Police," who then "unlawfully
took the cellular phones" containing the video. Id. He alleged that "the contents of the
phone[s] were erased" while in the custody of a police detective, and that the destruction of
the video evidence violated his right to Due Process under the United States Constitution.
Id. at 2-4.
{¶ 3} The trial court held a hearing on Mr. Walker's motion on March 29, 2018.
J.H. testified that she was Mr. Walker's girlfriend and that she lived with him at his mother's
home. (Mar. 29, 2018 Tr. at 11.) She stated that on the day of the incident, her phone was
in working order and was not password protected. Id. at 12-13. According to J.H., after the
"altercation" between Mr. Walker and the police began, "they were all falling on the ground,
falling on top of my two-year-old son. So I grabbed my two-year-old son and moved out of
the way." Id. at 14. J.H. testified that she then began recording the incident with her
cellphone. Id. at 15.
{¶ 4} After the officers called for backup, one officer "pulled" J.H. outside and
arrested her. Id. at 15-16. Officers took her "downtown," confiscated her phone, and held
it for several weeks. Id. at 17-18. J.H. called the investigating detective four or five times
before she received "a letter in the mail saying my phone was available to be picked up." Id.
at 18. J.H. testified that when she received her phone back, "[i]t was completely wiped out,"
and the video she had taken of the incident was gone. Id. at 19. The phone "didn't have any
pictures, any videos, any contacts." Id. at 32. Instead, J.H. claimed that there were "some
1Mr. Walker's counsel filed a notice of waiver of oral argument the day before it was held. (May 18, 2021
Notice.)
No. 20AP-95 3
weird apps on there that [she] didn't put on there." Id. She described them as "[t]echnical
apps, nothing that I've ever heard of before." Id. at 33. After receiving the phone back, she
"gave it to [her] son to play with" because she had already obtained a new one. Id. at 34.
By the time of the hearing, the phone was broken and no longer in her possession. Id. at
35.
{¶ 5} On cross-examination, J.H. clarified that she began recording after getting
her son away from Mr. Walker and the officers: "I recorded them making the arrest, them
abusing the defendants that they were arresting." Id. at 23. When asked why she recorded
the incident, J.H. stated: "Because of all the police brutality that had been going on, I
wanted to make sure I had evidence if anything happened that wasn't supposed to." Id. at
24. J.H. claimed that she was not involved in the incident and "just stood by silently and
recorded," but also admitted that she had pled guilty to a charge of disorderly conduct
arising from the incident based on allegations that she had attempted to interfere in the
arrest. Id. at 24-25. J.H. stated that she had never watched the recording but believed that
it was "three or four minutes" long and included "pretty much most of the incident" before
she was pulled outside and arrested. Id. at 26. J.H. was adamant that the phone "did
record" the incident but did not know "what was on it for sure" because she never had the
chance to watch it. Id. at 30.
{¶ 6} Officer Matthew Resatar testified that he arrived at the scene after Officer
Beck had handcuffed Mr. Walker. Id. at 83. He witnessed J.H. and Mr. Walker's mother
"yelling" at Officer Beck to get off of Mr. Walker and recounted that they then yelled at him
after he "took control" of Mr. Walker. Id. at 84-85. While Officer Resatar kept "yelling at
them to stay back," he did not notice anyone recording the events with a cell phone. Id. at
85-86. He testified that he turned J.H.'s cell phone in as evidence but could not remember
why. Id. at 89-91. Officer Resatar could only remember that he "was just told it needed to
be submitted." Id. at 91.
{¶ 7} Officers Darren Stephens, Derek Beck, and Cory Kahoun were each present
at the scene and testified that they did not see J.H or anyone recording the incident with a
cell phone. Id. at 52, 65, 80.
{¶ 8} Detective Randy VanVorhis testified that he "generated a search warrant" to
allow information to be retrieved from J.H.'s phone, and "at some point in the
No. 20AP-95 4
investigation" he "removed the phone from the property room and turned it over to another
detective who does all of our phone forensics." Id. at 109. Detective VanVorhis stated that
he did not examine J.H.'s phone or turn it on or off in the period between retrieving it and
handing it over to James Howe, the forensic detective. Id. at 112. After Detective Howe
examined the phone, Detective VanVorhis was in charge of retrieving it and returning it to
J.H. Id. at 114-15.
{¶ 9} Evidence introduced at the hearing showed that Officer Resatar turned the
phone into the property room on October 7, 2016. (Def. Ex. 3, Evidence and Property
Inventory Form.) On October 25, 2016, the phone was released for "investigation" to
Detective VanVorhis. (Def. Ex. 7, Property Evidence Transfer Form.) Detective VanVorhis
obtained a search warrant for the phone on November 9, 2016 and gave the phone to the
forensic investigator on November 10, 2016. (Mar. 29, 2018 Tr. at 119-21; see also Def. Ex.
8, Mobile Device Exam report (stating that phone was submitted for analysis on
November 10, 2016 by Det. VanVorhis).)
{¶ 10} Detective James Howe, who performed the digital forensic analysis of J.H.'s
phone, testified that it contained no video recording of the incident. Id. at 132. His analysis
was not able to detect whether a video had been deleted from the phone. Id. at 132-33.
Detective Howe testified that he did not delete anything from the phone. Id. at 140. He
also stated that if someone had deleted a video file from the phone between October 7, 2016
and the date he performed his analysis of his contents, the type of analysis he performed
would not be able to detect the deletion. Id. at 149.
{¶ 11} The trial court overruled Mr. Walker's motion to dismiss the indictment. Its
ruling applied the test set forth in State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577,
¶ 73, "to determine whether the state's failure to preserve evidence rises to the level of a due
process violation." (July 23, 2018 Decision & Entry at 4.) The trial court found that "the
recording at issue is potentially useful," but that it was not materially exculpatory or that
Mr. Walker had presented the evidence of bad faith necessary to demonstrate a due process
violation under Powell. Id. at 4-5.
{¶ 12} After this ruling, the case proceeded to trial. Officer Beck testified that he and
his partner, Officer Darren Stephens, were dispatched to respond to a domestic violence
call by Mr. Walker's mother around 2:30 a.m. on October 7, 2016. (Nov. 13, 2019 Tr. at
No. 20AP-95 5
263, 268.) When they arrived, there was "a lot of screaming" and Mr. Walker's mother told
Officer Beck that "her two kids had been fighting and she want[ed] them both to leave." Id.
at 268. Mr. Walker's sister "was gathering her things" to leave and "was pretty cooperative."
Id. After she left, Mr. Walker began gathering his things to leave, but was still "highly
agitated, pacing around," arguing with his mother, and "screaming." Id.
{¶ 13} According to Officer Beck, Mr. Walker had left the house but he and his
mother continued arguing while he stood outside waiting for a ride. Id. at 270-71.
Mr. Walker's friend Y.A. arrived and he, Mr. Walker and his mother "continued to go back
and forth, arguing, name calling, [and using] degrading words." Id. at 271. Officer Beck
stated that Mr. Walker "[s]tarted directing his anger towards" himself and Officer Stephens,
"punched the mailbox," and "stormed inside" his mother's house. Id. at 272. She followed
him down a hallway and "was yelling at him" while Officer Beck "followed both behind
[them] to try to, you know, separate the two." Id. at 272. Once they reached a back
bedroom, she "threw a punch at Mr. Walker" and then he "threw a punch back at her." Id.
Officer Beck separated them and "started taking her down the hallway." Id. at 275. He
"handed" her to Officer Stephens and told him to handcuff her. Id.
{¶ 14} At that point, Mr. Walker "began running towards" Officer Beck and
attempted to strike his mother. Id. at 276. Officer Beck "grabbed Mr. Walker from the back
of his shirt and pulled him back" in order to separate them again, with the intention of
arresting both of them. Id. Officer Beck testified that Mr. Walker "immediately spun
around in an aggressive manner, had a balled fist and stated something like, Don't fucking
touch me." Id. at 276-77. He then "proceeded to throw a punch" at Officer Beck. Id. at 277.
Officer Beck testified that Mr. Walker "hit [him] on the right side of the head, ear [and]
neck area." Id. Officer Beck described the following scene:
At that point I grabbed him, we started wrestling. He went to
throw another punch. I threw a punch at him, and then we were
actively wrestling in the hallway, fighting. I was able to push
him and tackle him into the front room where Officer Stephens
and [Y.A.] were actively fighting on the ground. We fell over top
of them and pretty much it was a crazy melee after that.
Id.
No. 20AP-95 6
{¶ 15} During the altercation, Officer Beck was able to activate an "officer in trouble"
alert to for backup assistance. Id. at 279. The alert went out at 2:55 a.m. Id. Officer Beck
testified that Officer Kahoun responded and began to "assist in holding Mr. Walker down
as he continued to flail around, kick and fight," and that he "observed Mr. Walker spit back
up in Officer Kahoun's face." Id. at 286. While the fighting was going on, Officer Beck
"looked up" and saw a child "standing in the corner all by himself or herself." Id. at 288.
{¶ 16} Officer Beck recalled that Mr. Walker "was actively fighting and kicking," but
was able to eventually "get him handcuffed." Id. at 278. While they were on the ground,
Y.A. and J.H., Mr. Walker's girlfriend, were grabbing at Officer Beck and attempting to pull
him off of Mr. Walker. Id. at 280.
{¶ 17} Officer Darren Stephens testified that Mr. Walker, his mother, and Y.A. were
yelling at each other outside her house, and that Mr. Walker punched the mailbox before
going back in. Id. at 343. Officer Stephens initially stayed outside with Y.A. but then
decided to go "inside to assist" Officer Beck. Id. at 344. He saw Mr. Walker and his mother
"throwing punches at each other" and Officer Beck "trying to break it up." Id.
{¶ 18} As Officer Stephens was arresting Mr. Walker's mother, Y.A. punched him in
the back of the head. Id. at 345. Officer Stephens began to hit him back and they fell to the
ground, after which Officer Beck and Mr. Walker fell on top of them in the hallway. Id. at
346. As Officer Stephens was attempting to arrest Y.A., he recounted that Mr. Walker's
mother and J.H. were "starting to grab ahold of us, screaming at us not to touch them, [and]
to leave them alone." Id. at 347.
{¶ 19} Officer Kahoun was one of the officers who responded to Officer Beck's
distress call. Id. at 396. Upon arriving, he could "immediately hear commotion, a struggle,
a fight that was going on inside the residence." Id. at 398. Officer Kahoun "went in to
control Mr. Walker," who "continued to kick" and "strike officers with his feet." Id. Officer
Kahoun testified that as he attempted to roll Mr. Walker over, "he spit into my right eye."
Id. After that, when Officer Kahoun "was rolling him over to his stomach, he then spit
again, which then hit my shoulder." Id. at 399. Other officers then put a "spit hood" on
Mr. Walker and placed him in a cruiser. Id.
{¶ 20} Officer Resatar also responded to Officer Beck's distress call. Id. at 421.
When he entered the home, he saw Officer Beck with "one knee on * * * Mr. Walker's legs,
No. 20AP-95 7
who was in handcuffs on the floor." Id. at 422. Officer Resatar saw "two females standing
in the kitchen door, and they were screaming and yelling basically at Officer Beck and
Officer Stephens." Id. He testified that they "were coming towards Officer Beck" and he
told them to stay back. Id. at 422-23. He began to assist Officer Beck by holding Mr. Walker
down as other officers arrived. Id. at 424. One of the other officers "came in and escorted"
J.H. out the front door. Id. at 425.
{¶ 21} Officer Resatar testified that "information was relayed to [him] that [J.H.]
had a cell phone she said she recorded the incident on." Id. at 427. He "relayed that
information about the phone" to the detective in a phone call, and Officer Resatar testified
that he was asked "to collect it as evidence, place it in airplane mode and then transport it
to the property room * * *." Id. at 428. He collected the phone from J.H., filled out the
"property control evidence sheet" with her information, and submitted it as evidence. Id.
at 429-33. Officer Resatar testified that he did not access the phone's contents and he
placed it in airplane mode before turning it in to the property room. Id. at 435. He had no
other contact with the phone after turning it in. Id.
{¶ 22} Detective VanVorhis was called by the defense. He testified that he had the
phone in his possession "every day" during the "16 or 17" days that he had it checked out of
the property room. Id. at 499, 551. Detective VanVorhis testified that during that time, the
phone was "secured in a locked desk behind locked doors." Id. at 499. He acknowledged
that the paperwork did not show that the phone was locked away or in airplane mode, and
that there was nothing "[o]ther than [him] saying it" as evidence that the phone was secured
during that time. Id. at 500. The detective also believed that the delay "was due to conflicts
with * * * Detective Howe's schedule and getting it passed off to him." Id. at 556. Detective
VanVorhis also stated that he "did not make [the] decision" to confiscate J.H.'s cell phone,
asserting that he "never told [Officer Resatar] to take it." Id. at 587. He stated that J.H.'s
phone was not placed in a bag and sealed because a"cell phone that I'm not looking to obtain
DNA or any type of other evidence [from], other than forensics, does not need to be bagged
to save evidence." Id. at 578.
{¶ 23} The defense also called Detective James Howe, who testified that Detective
VanVorhis contacted him on November 10, 2016 to perform a digital forensic analysis of
J.H.'s cell phone. Id. at 595. Detective Howe stated that evidence from the property room
No. 20AP-95 8
"would normally be in a property bag" when given to him. Id. at 595. However, he also
stated that it was "not uncommon" to receive an unbagged cell phone because investigators
might "take the phone out of the bag to write their search warrants or take photographs,
whatever they have to do to it before it comes to us." Id. at 605.
{¶ 24} According to Detective Howe, if a phone he receives for analysis is already in
airplane mode, he "would make a notation [that] * * * it was already in airplane mode." Id.
at 598. However, the report he prepared for J.H.'s phone stated that he placed the phone
in airplane mode. Id. Thus, he did not "believe" that it was placed in airplane mode prior
to his receipt. Id. at 599. J.H.'s phone was not password protected when he received it. Id.
at 622.
{¶ 25} Detective Howe also stated, as he had at the motion hearing, that the type of
analysis he performed on J.H.'s phone could not reveal if a file or video had been deleted
before he received it. Id. at 602. Detective Howe testified that with J.H.'s particular cell
phone model, "it would take a couple of steps in order to get [a file] completely off of the
phone," including moving it to the trash and then emptying the trash. Id. at 616. He also
stated that after completing his analysis, the phone was in working order before returning
it to Detective VanVorhis. Id. at 620.
{¶ 26} The defense called J.H. to testify about her experience of the events of
October 7, 2016. She stated that Mr. Walker's mother "called the cops," who "rushed in the
house to, like, grab everybody." Id. at 628-29. She stated that "three big men were * * *
falling on top of my son. So I went to grab my son and then I was recording and stuff. And
then they called for backup and a whole bunch of other more cops came. And at that time
when all the cops came for backup, I was taken out of the house." Id. at 629. She stated
that she recorded the incident while inside the house because the officers "were being too
rough, using force that they didn't have to use." Id. at 631. J.H. stated that she knew how
to "remotely wipe a phone," but that she did not do so to her own phone. Id. at 633. She
believed that the video she recorded would have helped Mr. Walker's case. Id.
{¶ 27} Finally, Mr. Walker testified in his own defense. He stated that on October 7,
2016, he and his sister "got into an argument," and that he and J.H. were packing their
things to leave his mother's house when the police arrived. Id. at 766-67. He denied
threatening the officers. Id. at 767. Mr. Walker stated that his mother started "cussing and
No. 20AP-95 9
trying to swing" at him while he went to get the rest of his clothes from her house, at which
time "all chaos broke loose." Id. at 767-68. He denied striking Officer Beck. Id. at 768.
Mr. Walker also denied assaulting Officer Stephens or spitting on Officer Kahoun. Id. at
769.
{¶ 28} The jury found Mr. Walker guilty of assault on Officer Beck, but returned
verdicts of not guilty on the charges of assault relative to Officer Stephens and harassment
with a bodily substance against relative to Officer Kahoun. (Nov. 15, 2019 Verdicts.) The
trial court imposed a sentence of three years of community control. (Jan. 28, 2020 Jgmt.
Entry.)
{¶ 29} Mr. Walker has appealed and assigns the following assignments of error:
I. Because the officers destroyed the cell phone recording of
the incident that Walker's girlfriend made, dismissal of the
charges against him was required under the Due Process
Clause.
II. Because the greater amount of credible evidence supports
the conclusion that Walker was not the aggressor in the
struggle with Officer Beck, the verdict against him should be
reversed.
{¶ 30} As an initial matter, we must clarify the standard of review that applies to a
trial court's ruling on a claim of a due process violation based on allegedly destroyed
evidence. A number of our decisions have reviewed such rulings without specifying the
standard of review applied. E.g., State v. Daniels, 10th Dist. No. 14AP-326, 2015-Ohio-
2649, ¶ 16-23; State v. Glunt, 10th Dist. No. 09AP-962, 2010-Ohio-3024, ¶ 9-12; State v.
Woodson, 10th Dist. No. 03AP-736, 2004-Ohio-5713, ¶ 24-33; State v. Beliveau, 10th Dist.
No. 01AP-211, 2001 Ohio App. LEXIS 4792 (Oct. 25, 2001). In these cases, uncontroversial
factual findings or an absence of evidence may have rendered it unnecessary to mention the
customary appellate deference to the trial court on evidentiary matters. See Daniels at ¶ 22
(no evidence of bad faith); Glunt at ¶ 11 (defendant provided no evidence that "overwritten"
videotape of interview after OVI arrest was materially exculpatory); Woodson at ¶ 28
(erased 911 recording not evidence of bad faith where "the Columbus Police recycled the
disc containing the recording pursuant to established policy"); Beliveau at *17-18 (no
evidence that tape recorded interview was materially exculpatory or evidence of bad
faith). We have also applied an abuse of discretion standard in a case where the claim of
No. 20AP-95 10
allegedly destroyed evidence, along with other arguments, supported motions for a mistrial
and a new trial. State v. S.A.A., 10th Dist. No. 17AP-685, 2020-Ohio-4650, ¶ 32-43.
{¶ 31} Usually, as in this case, the defendant raises a due process claim based on
allegedly destroyed evidence through a motion to dismiss the criminal indictment. E.g.,
State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, ¶ 6. Some Ohio appellate courts
review such claims de novo. State v. Hatton, 4th Dist. No. 19CA34, 2021-Ohio-1416, ¶ 42;
State v. Brown, 1st Dist. No. C-180236, 2019-Ohio-1615, ¶ 9; State v. Newton, 8th Dist. No.
105771, 2018-Ohio-1392 ¶ 15; State v. Whalen, 9th Dist. No. 08CA009317, 2008-Ohio-
6739, ¶ 7; State v. Brown, 5th Dist. No. 2006-CA-53, 2007-Ohio-2005, ¶ 23; State v. Russ,
11th Dist. No. 2007-T-0045, 2008-Ohio-1897, ¶ 14. Confusingly, some courts have applied
different standards within the same appellate district. Compare Russ at ¶ 14 (applying de
novo standard) with State v. Frasure, 11th Dist. No. 2007-A-0033, 2008-Ohio-1504, ¶ 35
(applying mixed standard of de novo with deference to trial court's factual findings) and
State v. Fox, 4th Dist. No. 11CA3302, 2012-Ohio-4805, ¶ 22-23 (applying a "hybrid
standard of review" combining deference "to the trial court's factual findings as long as
competent and credible evidence supports those findings" with de novo review of the
application of "those facts to the law") with Hatton at ¶ 42 (applying de novo standard with
no acknowledgement of previous holding in Fox). These courts may only intend for the de
novo standard to apply to legal conclusions. However, without further clarification, this
risks unintentionally setting precedent that even evidentiary findings should enjoy the
standard.
{¶ 32} This concern motivated the Fourth District's analysis of the issue in Fox.
There, the court acknowledged the prior application of the de novo standard by it and other
appellate courts but determined that "the hybrid standard of review that appellate courts
apply to suppression motions and motions to dismiss on the basis of a violation of a
defendant's speedy trial right is the more appropriate standard of review to apply when
reviewing a trial court's decision regarding a motion to dismiss on the basis that the state
failed to disclose materially exculpatory evidence." Fox at ¶ 22. The Fourth District
reasoned that the Supreme Court of Ohio had tacitly applied such a standard in Geeslin, as
had the Eleventh District in Frasure and its own prior decision in State v. Lupardus, 4th
Dist. No. 08CA31, 2008-Ohio-5960. Fox, citing Geeslin at ¶ 14, Frasure at ¶ 35, and
No. 20AP-95 11
Lupardus at ¶ 8 and 16 (expressly stating a de novo standard applies to a Brady claim based
on police erasing a videotape, but also finding that "[c]ompetent, credible evidence
supports the trial court's finding").
{¶ 33} Geeslin is particularly instructive. Although, as Fox observed, the Supreme
Court did not expressly state the standard of review, its legal conclusion that the "missing
evidence" was not "materially exculpatory" was obviously de novo, as the appellate court
had held otherwise. Geeslin at ¶ 13. At the same time, Geeslin deferred to "[t]he trial court,
which was in the best position to weigh the evidence and the credibility of the witnesses,"
when upholding its ruling that the defendant failed to show bad faith by the officer who had
accidently erased a videotape. Id. at ¶ 14. Geeslin's analysis respects the traditional roles
of the trial court as the expert in fact-finding and the appellate court as interpreter of the
law. These roles should be acknowledged when reviewing the type of due process claim Mr.
Walker presents because such claims often come to the appellate court after significant fact-
finding efforts in the trial court to resolve disputed, contradictory and unclear facts.2
Accordingly, we hold that when reviewing a trial court's ruling on a motion to dismiss
arising from an alleged due process violation based on destroyed or missing evidence, we
defer to the factual findings of the trial court while applying a de novo review of the trial
court's application of the facts to the law. See id. at ¶ 14-15. Accord Fox at ¶ 23 (adopted
mixed standard of review). We turn now to the merits of Mr. Walker's argument.
{¶ 34} The Supreme Court has recognized that, under Brady v. Maryland, 373 U.S.
83 (1963), "the suppression of materially exculpatory evidence violates a defendant's due
process rights, regardless of whether the state acted in good or bad faith." Geeslin at ¶ 7,
citing State v. Johnston, 39 Ohio St.3d 48, 60 (1988). A different standard applies when
"evaluating an alleged due process violation based on lost or destroyed evidence." Geeslin
at ¶ 8. If the evidence is materially exculpable, the Brady standard applies and the intention
of the state is "irrelevant." Id. at ¶ 9, quoting Arizona v. Youngblood, 488 U.S. 51, 57 (1988).
But the standard for materially exculpable evidence is State v. Jackson, 57 Ohio St.3d 29,
33 (1991). "To meet this standard of constitutional materiality, * * * evidence must both
2As an example, the state "disputes" both "that the video did exist at one point in time and that the trial
court found that it did exist," but we defer to the trial court on the issue. (Appellee Brief at 15.)
No. 20AP-95 12
possess an exculpatory value that was apparent before the evidence was destroyed, and be
of such a nature that the defendant would be unable to obtain comparable evidence by other
reasonably available means." California v. Trombetta, 467 U.S. 479, 489 (1984), citing
United States v. Agurs, 427 U.S. 97, 109-10 (1976). "If the evidence 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." Geeslin at ¶ 10.
"Unless a defendant can show that the state acted in bad faith, the state's failure to preserve
potentially useful evidence does not violate a defendant's due process rights." Id. at
syllabus, following Youngblood.
{¶ 35} Again, Geeslin is particularly instructive. In that case, a state trooper pulled
the defendant over after observing erratic driving, "smelled alcohol" and noticed the
defendant's "bloodshot and glassy" eyes, then arrested the defendant for driving while
intoxicated after he failed sobriety and breath tests. Geeslin at ¶ 2. During his next shift,
the state trooper inadvertently recorded over the portion of the videotape that documented
the defendant's erratic driving. Id. at ¶ 4. The defendant filed a motion to dismiss the
charge, arguing that "the portion of the videotape recorded over contained possible
exculpatory evidence," an assertion with which the trial and appellate courts agreed. Id. at
¶ 5, 11. The Supreme Court disagreed. Although the defendant could have used the missing
video for impeachment purposes or the state could have used it to bolster its witness's
credibility, "the missing portion of the tape would have been used only to challenge or
corroborate the justification for the stop." Id. at ¶ 12. Because the erased video "would not
have been used for the purpose of establishing appellant's guilt or innocence," it was not
materially exculpatory. Id.
{¶ 36} Here, as well, J.H.'s video could not have been used to establish Mr. Walker's
guilt or innocence of the charge he faced, and consequently cannot be considered materially
exculpatory. The charge in question (and the sole count of which Mr. Walker was
convicted) was assault under R.C. 2903.13(A), which provides that "[n]o person shall
knowingly cause or attempt to cause physical harm to another or to another's unborn."
Because the alleged victim was a police officer, R.C. 2903.13(C)(5) enhanced the charge to
a felony of the fourth degree. R.C. 2901.01(A)(3) defines physical harm as "any injury, * * *
regardless of its gravity or duration." The substance of the assault charge was the "punch"
No. 20AP-95 13
that Officer Beck described Mr. Walker throwing at him, landing "on the right side of the
head, ear [and] neck area." (Nov. 13, 2019 Tr. at 277.) After that, the officer "grabbed"
Mr. Walker, and they began "wrestling." Id. By J.H.'s own account, she did not begin
recording the video until after the altercation between Mr. Walker and Officer Beck had
begun and she had been able to remove her child from the melee. (Mar. 29, 2018 Tr. at 14-
15, 23-24.) The trial court correctly noted that J.H.'s "delay in initiating the recording
necessarily means that the entirety of the incident was not recorded, most importantly what
started the altercation." (July 23, 2018 Decision & Entry at 5.) As in Geeslin, the missing
video could possibly have been used to impeach other portions of Officer Beck's testimony,
but it could not have shown that Mr. Walker did not commit the assault itself. Thus, it was
not materially exculpatory.
{¶ 37} Mr. Walker argues otherwise, citing several Ohio appellate opinions that
involved police destruction of video recordings. (Appellant's Brief at 9.) However, in State
v. Benson, 152 Ohio App.3d 495, 2003-Ohio-1944, ¶ 11 (1st Dist.), the court did not hold
that the destroyed evidence was materially exculpatory. Police destroyed the videotape
after the defendant requested it during discovery. Id. at ¶ 3. As a consequence, "the burden
shifted to the state to demonstrate that the tape was not materially exculpatory." Id. at ¶ 11,
citing State v. Benton, 136 Ohio App.3d 801, 805 (6th Dist.2000), citing Columbus v.
Forest, 36 Ohio App.3d 169 (10th Dist.1987). The court could only conclude that "it [was]
possible that the tape was materially exculpatory," but reversed because evidence of bad
faith was clear. Id. at ¶ 12 ("It is clear that the officer was dishonest with the prosecution
about whether a tape actually existed, and even at the suppression hearing, it was difficult
to pin down his answer about whether a tape actually existed."). Id. at ¶ 14.
{¶ 38} Neither does State v. Blair, 2d Dist. No. 25578, 2014-Ohio-1279, ¶ 25,
support Mr. Walker's argument that J.H.'s video was materially exculpatory. The case also
involved an altercation between the defendant and police officers, replete with conflicting
testimony about the instigator. Id. However, unlike J.H.'s video, the Blair recording
included the entire incident. "The videotape was the only objective evidence available and
the best evidence to support [the defendant's] contention that the violence was initiated by
[the officer]." Id. In contrast to Mr. Walker's situation, the exculpatory value of the
videotape in Blair was apparent.
No. 20AP-95 14
{¶ 39} Because the missing video was not materially exculpatory, Mr. Walker can
only demonstrate a due process violation if the unavailability of this potentially useful
evidence resulted from bad faith. Geeslin at ¶ 10. " 'The term "bad faith" generally implies
something more than bad judgment or negligence.' " State v. Powell, 132 Ohio St.3d 233,
2012-Ohio-2577, ¶ 81, quoting State v. Tate, 5th Dist. No. 07 CA 55, 2008-Ohio-3759, ¶ 13.
Bad faith " ' "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 embraces actual intent to mislead or deceive another." ' " Id., quoting Hoskins v. Aetna
Life Ins. Co., 6 Ohio St.3d 272, 276 (1983), quoting Slater v. Motorists Mut. Ins. Co., 174
Ohio St. 148 (1962), paragraph two of the syllabus, overruled on other grounds, Zoppo v.
Homestead Ins. Co., 71 Ohio St.3d 552 (1994), paragraph one of the syllabus.
{¶ 40} Mr. Walker cites to the trial testimony of several of the officers to support his
argument that the police acted in bad faith. (Appellant's Brief at 11-12.) However, our
review of the evidence to support the contention of bad faith grounds is confined to the
record developed at the hearing on the motion to dismiss. See Columbus v. Beasley, 10th
Dist. No. 17AP-629, 2019-Ohio-719, ¶ 50 ("because our review of the denial of a motion to
suppress on appeal is limited to evidence presented at the suppression hearing, we must
disregard the evidence presented at trial"); State v. Monford, 190 Ohio App.3d 35, 2010-
Ohio-4732, ¶ 45 (10th Dist.) ("an appellate court may only consider evidence that
was presented during the suppression hearing, and may not consider evidence presented
at trial"). Mr. Walker had the burden of producing convincing evidence of bad faith at the
pretrial hearing and the trial court ruled on his motion based only on that evidence. See
Geeslin at ¶ 1 (holding that the defendant must "show that the state acted in bad faith").
Thus, we will not consider evidence of bad faith produced at trial that the trial court did not
have the opportunity to review before ruling on the motion. Nevertheless, testimony at the
two proceedings was sometimes duplicative and Mr. Walker's brief cites also to his post-
hearing memorandum that references the record developed at the motion hearing. Thus,
although his briefing lacks the customary and "appropriate references to the record," there
is an adequate basis for appellate review of the evidence of the bad faith he alleges.
App.R. 16(A)(6).
No. 20AP-95 15
{¶ 41} Mr. Walker first argues that officers "had no real cause to take the phone of a
witness who claimed to have recorded their brutality against a citizen." (Appellant's Brief
at 11-12.) Mr. Walker cannot plausibly insist that the phone was both relevant to his
defense, materially or otherwise, and that it had no relevance to the investigation of the
incident. The video had investigatory value. J.H. herself testified that she recorded it
because she "wanted to make sure [she] had evidence if anything happened that wasn't
supposed to." (Mar. 29, 2018 Tr. at 24.) Rather than demonstrate bad faith, confiscating
the phone simply showed that the officers were performing their job by collecting relevant
evidence.
{¶ 42} Mr. Walker also points to the fact that Officer Resatar "had the phone in his
possession for four hours" after confiscating it from J.H. as evidence of bad faith.
(Appellant's Brief at 12.) During the hearing, the officer was pressed as to why paperwork
showed that he did not turn the phone into the property room until 7:46 a.m. when the
incident had occurred at approximately 3:00 a.m. (Mar. 29, 2018 Tr. at 99.) This
inconsequential delay demonstrates nothing, particularly in light of Officer Resatar's
agreement when asked if "it often take[s] a few hours for a scene like that to be cleared, for
people to be arrested, interviewed, property collected, turned in, is that typical?" Id. at 101.
{¶ 43} There is more substance to Mr. Walker's criticism of Detective VanVorhis
having J.H.'s "phone in his own possession for 17 days" before turning it over to Detective
Howe for forensic analysis. (Appellant's Brief at 12.) Police paperwork shows that Officer
Resatar submitted the phone to the property inventory room on October 7, 2016. (State
Ex. A-1.) On October 25, 2016, the phone was released for "investigation" to Detective
VanVorhis. (State Ex. A-2.) He did not obtain a search warrant for its contents until
November 9, 2016, and he submitted it to Detective Howe for forensic analysis the next
day. (Mar. 29, 2018 Tr. at 119; State Ex. B-1, Search Warrant, & State Ex. B-2, Mobile Device
Exam Report.)
{¶ 44} Detective VanVorhis was pressed on cross-examination at the motion
hearing about the length of time the phone had been in his possession after signing it out
from the property room and submitting it for forensic analysis. (Mar. 29, 2018 Tr. at 119.)
When shown the property evidence transfer form dated October 25, 2016, he said: "I see
the date," but insisted that he "would not have kept that phone for any length of time." Id.
No. 20AP-95 16
When asked to acknowledge that the dates on the paperwork showed that "the phone was
signed out on October the 25th and then for 16 days it is in someone's possession before it
makes it to the person who does the analysis," the transcript shows that the detective had
"[n]o audible response." Id. at 120. Detective VanVorhis also insisted that he "would not
have had the phone without the warrant." Id. He was then confronted with the fact that he
did not obtain the search warrant until November 9, 2016. Id. at 121. Only then did the
detective acknowledge that "the phone was in either [his] possession or someone's
possession outside of the property room for those 16 days." Id. at 122. His explanation: the
form could have "the wrong date" on it, or that "[i]t could have been the person that was
going to be receiving it wasn't available at that time," in which case he would have "held on
to the phone" and "kept it in a secure location." Id. at 124.
{¶ 45} The trial court neither mentioned nor analyzed this exchange before reaching
its conclusion that there was "simply no evidence of the State's bad faith." (July 23, 2018
Decision & Entry at 5.) Instead, the trial court professed bewilderment in the face of a
seemingly insurmountable logical puzzle: "a finding of bad faith could only be reached by
improperly drawing an inference upon an inference (i.e., that the phone was not password
protected allowing the police to review its contents in violation of their procedures, infer
that police did so and then infer that after such review someone erased the recording)." Id.
But there was no need to stack inferences. The trial court found that the recording existed.
Id. at 4. And it was undisputed the phone was not password protected. (Mar. 29, 2018 Tr.
at 13 (testimony of J.H.) & 146 (testimony of Detective Howe).) The video was not on the
phone by the time Detective Howe analyzed the phone. A willingness to view Detective
VanVorhis's testimony more critically might have yielded a single, logical inference about
the fate of the video. This would have been justified by the detective's shifting explanations
and inability to explain why he personally possessed evidence for over two weeks before
obtaining a search warrant.3 Detective VanVorhis's initial insistence that he "would not
have kept that phone for any length of time" before being confronted with the fact that he,
in fact, did have the phone as long as he did, underscores the highly irregular length of time
3 Counsel for the state was also pressed at oral argument as to the propriety of a detective who oversees
officers being investigated for misconduct having possession of a video possibly documenting that
misconduct. Such an investigation is not part of the record in this case.
No. 20AP-95 17
the phone was in his possession. (Mar. 29, 2018 Tr. at 119.) But silence in the face of these
problematic facts is where the trial court leaves us.
{¶ 46} Unfortunately for Mr. Walker, the detective's opacity is insufficient evidence
of bad faith. Questions remain, but questions are not evidence of "dishonest purpose, moral
obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or
ill will partaking of the nature of fraud." Powell at ¶ 81. Nor can we, as the appellate court,
discern "actual intent to mislead or deceive another" in this record, particularly without an
accompanying credibility determination by the trial court. Id. Accordingly, we affirm the
trial court's decision to overrule Mr. Walker's motion to dismiss. The first assignment of
error is overruled.
{¶ 47} Mr. Walker's second assignment of error contends that the manifest weight
of the evidence did not support his conviction. "To evaluate a claim that a jury verdict is
against the manifest weight of the evidence, we review the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of witnesses, and determine whether
in resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that we must reverse the conviction and order a new trial."
State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 168, citing State v. Thompkins, 78
Ohio St.3d 380, 387 (1997). Reversal on manifest weight grounds is appropriate " 'only in
the exceptional case in which the evidence weighs heavily against the conviction.' "
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 48} Mr. Walker argues that Officer Beck's testimony was not credible on the issue
of who was "the aggressor" during their altercation. (Appellant's Brief at 13.) "It was just
who struck who first that was at issue. Frankly, it is much more plausible the way Walker
described it," he insists. Id. at 14.
{¶ 49} Mr. Walker is incorrect that the issue is who landed the first blow. That would
only be the case if Mr. Walker had sought to prove the affirmative defense of self-defense,
which is "an admission of the prohibited conduct coupled with a claim that the surrounding
facts or circumstances exempt the accused from liability therefore; 'justification for
admitted conduct.' " State v. Grubb, 111 Ohio App.3d 277, 282 (2d Dist.1996), quoting State
v. Poole, 33 Ohio St.2d 18, 20 (1973). Here, there was no jury instruction on self-defense,
and Mr. Walker has not raised that omission as error. Furthermore, his testimony is devoid
No. 20AP-95 18
of any indication "that he had a bona fide belief, even if mistaken, that he was in imminent
danger of bodily harm" to justify the use of force, or that "he was not at fault in creating the
situation giving rise to the altercation," both of which would have been necessary to prove
self-defense. State v. Keith, 10th Dist. No. 08AP-28, 2008-Ohio-6122, ¶ 22, citing State v.
D.H., 169 Ohio App.3d 798, 2006-Ohio-6953, ¶ 30 (10th Dist.).
{¶ 50} Mr. Walker's plea to accept his version of events as more "plausible" is also
not well-taken. The manifest weight standard demands that the appellate court "bear in
mind the trier of fact's superior, first-hand perspective in judging the demeanor and
credibility of witnesses." State v. Mickens, 10th Dist. No. 08AP-626, 2009-Ohio-1973, ¶ 30,
citing State v. DeHass, 10 Ohio St.2d 230, 230 (1967), paragraph one of the syllabus. "Mere
disagreement over the credibility of witnesses is not a sufficient reason to reverse a
judgment on manifest weight grounds." State v. Harris, 10th Dist. No. 13AP-770, 2014-
Ohio-2501, ¶ 25, citing State v. G.G., 10th Dist. No. 12AP-188, 2012-Ohio-5902, ¶ 7. The
jury believed Officer Beck's version of events and believed that Mr. Walker inflicted the
harm described. That was all the jury required to convict him of assault because "[t]he
testimony of a single witness, if believed by the finder of fact, is sufficient to support a
criminal conviction." State v. Booker, 10th Dist. No. 15AP-42, 2015-Ohio-5118, ¶ 18, citing
State v. Elqatto, 10th Dist. No. 11AP-914, 2012-Ohio-4303, ¶ 20, and State v. Strong, 10th
Dist. No. 09AP-874, 2011-Ohio-1024, ¶ 42. Furthermore, the jury's acquittal of Mr. Walker
of two of the three charges he faced indicates that the jury took its role seriously and
critically scrutinized the evidence before it. We cannot conclude that the same jury "lost its
way" on the assault conviction. Wilks at ¶ 168. Because the manifest weight of the evidence
supported the conviction, we overrule the second assignment of error.
{¶ 51} Having overruled Mr. Walker's two assignments of error, we affirm the
judgment of the trial court.
Judgment affirmed.
DORRIAN, J., concurs.
NELSON, J., concurring in judgment only.
NELSON, J., retired, of the Tenth Appellate District, assigned
to active duty under the authority of the Ohio Constitution,
Article IV, Section 6(C).
No. 20AP-95 19
Nelson, J., concurring in judgment only.
{¶ 52} I concur in the judgment of the court and in its account of the shifting
explanations offered for the handling of the citizen's cell phone. The facts of this case may.
if nothing else, counsel further policy examination of practices and procedures. Ultimately,
however, I also concur that under the standards governing our review, the trial court that
heard the witnesses firsthand was within its authority to reach the factual determination
that it did with regard to the claim of bad faith. Because I also agree that the jury's
conviction of Mr. Walker was not against the manifest weight of the evidence, I concur in
the judgment of this court.
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