[Cite as State v. Cotten, 2015-Ohio-5405.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 2015 CA 00094
THOMAS W. COTTEN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2014 CR 01330
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 21, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO JEFFREY JAKMIDES
PROSECUTING ATTORNEY 325 East Main Street
RENEE M. WATSON Alliance, Ohio 44601
ASSISTANT PROSECUTOR
110 Central Plaza South, Suite 510
Canton,Ohio 44702-1413
Stark County, Case No. 2015 CA 00094 2
Wise, J.
{¶1} Appellant Thomas W. Cotten appeals following his felony conviction, in the
Court of Common Pleas, Stark County, for the offenses of manufacturing explosives and
inducing panic. Appellee is the State of Ohio. The relevant facts leading to this appeal are
as follows.
{¶2} On February 15, 2014, an explosion and fire leveled a detached garage
located on appellant’s residential property in Hartville, Ohio. Appellant was in said
structure at the time and was seriously injured as a result. The Hartville Fire Department,
Hartville Police Department, and the Stark County Sheriff’s Office responded to the
scene, as well as federal investigators from the Bureau of Alcohol Tobacco and Firearms
(“ATF”). In addition, as firefighters were putting out “hot spots” to prevent further
explosions, Brian Peterman, a fire investigator for the State of Ohio Division of State Fire
Marshall's Office, arrived at the location. Peterman was briefed as to what had occurred
to that point.
{¶3} As they worked in the debris, the aforesaid responders and investigators
noticed chemicals, tubing and other items used to manufacture explosive devices. The
Summit County Bomb Squad subsequently took possession of some of the discovered
items.
{¶4} In addition, the deputies obtained information that a natural gas heater had
been part of the utilities in the destroyed garage. Sergeant Ryan Carver accordingly
examined the gas line at the scene and took photographs of it, as well as the damaged
heater which was located in the debris. However, the heater and its components were not
seized by law enforcement personnel.
Stark County, Case No. 2015 CA 00094 3
{¶5} After completing their investigation, the agencies cleared the scene.
Investigator Peterman completed his work at the scene on February 17, 2014.
{¶6} However, on February 18, 2014, Brian Churchwell of Churchwell Fire
Consultants, Inc., who had been tasked by the Erie Insurance Company to investigate
the explosion in relation to potential insurance claims, entered onto appellant’s property.
On that date, appellant was still in an induced coma at the hospital. According to the
adjuster for Erie, Rudy Guy, the entry was made with the consent of appellant’s wife,
Kimberly. Churchwell was accompanied by Investigator Peterman. Churchwell
subsequently prepared a report of his findings, and Peterman drafted a supplemental
report on the incident.
{¶7} Churchwell’s report notes inter alia the presence of "a gas-fire Rezner type
heater" at the site of the explosion. The report also includes several photos of Churchwell
and/or his associates touching, moving, and otherwise handling the heater and the
"attached gas piping" located at the scene. The report does not, however, make any
specific mention of an actual removal of the heater or any gas piping from the scene by
Churchwell. However, Investigator Peterman did observe Churchwell collect the remains
of the natural gas heater that had been located in the garage. See Tr. at 28-31.
{¶8} On August 25, 2014, appellant was indicted on one count of manufacturing
or processing explosives (R.C. 2923.17(B)), a felony of the second degree, and one count
of inducing panic (R.C. 2917.31(A)(3)(C)(3)), a felony of the fourth degree.1
1 The first statute states that “[n]o person shall manufacture or process an explosive at
any location in this state unless the person first has been issued a license, certificate of
registration, or permit to do so from a fire official of a political subdivision of this state or
from the office of the fire marshal.” The second statute states that “[n]o person shall cause
the evacuation of any public place, or otherwise cause serious public inconvenience or
Stark County, Case No. 2015 CA 00094 4
{¶9} On January 12, 2015, appellant filed a “motion to suppress and dismiss,” to
which the State of Ohio responded on February 17, 2015. The key issue was the
preservation of the garage heater unit and riser pipe. Following a hearing on February 20
and 24, 2015, appellant’s motion to suppress and/or dismiss was denied.
{¶10} Appellant entered pleas of "no contest" on both of the above charges on
April 22, 2015. The trial court thereupon sentenced appellant inter alia to five years of
community control.
{¶11} On May 12, 2015, appellant filed a notice of appeal. He herein raises the
following sole Assignment of Error:
{¶12} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
SUPPRESS, AS A THIRD-PARTY INVESTIGATOR ENTERED THE SCENE OF THE
ALLEGED CRIME ACCOMPANIED BY A SELF-DESCRIBED ‘LAW ENFORCEMENT
OFFICER’ WHO WAS STILL INVESTIGATING THE MATTER AND TAMPERED WITH
AND REMOVED POTENTIALLY MATERIALLY EXCULPATORY EVIDENCE, THUS
VIOLATING THE APPELLANT'S DUE-PROCESS RIGHTS UNDER THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.”
I.
{¶13} In his sole Assignment of Error, appellant contends the trial court erred in
denying his motion to suppress.
{¶14} As an initial matter, we note appellant’s above assigned error language at
first blush suggests that a trial court errs to the prejudice of a defendant in denying his or
alarm, by *** [c]ommitting any offense, with reckless disregard of the likelihood that its
commission will cause serious public inconvenience or alarm.” Inducing panic is a fourth-
degree felony if physical harm results.
Stark County, Case No. 2015 CA 00094 5
her motion to suppress alleged materially exculpatory evidence, in this instance a garage
heater and related components. We find such an argument to be non-cognizable, as it
would be self-contradictory for a defendant to urge that evidence allegedly in his or her
favor should not have been allowed. Indeed, “[t]he very purpose of a motion to suppress
is to escape the inculpatory thrust of evidence in hand ***.” See State v. Dimmings, 8th
Dist. Cuyahoga No. 80149, 2002–Ohio–803, quoting Illinois v. McCray, 386 U.S. 300,
307, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), emphasis added. The trial court file reveals
appellant’s pertinent motion was captioned as a “motion to suppress and dismiss,” but it
focused exclusively on the argument that the State violated his due process rights by
failing to preserve exculpatory or potentially exculpatory evidence. In the interest of
justice, we will herein analyze the issues in this matter along similar lines, addressing
appellant’s essential contention that the State's alleged destruction of or failure to
preserve the garage’s heater and riser pipe, which he claims are materially exculpatory,
violated his due process rights.
{¶15} In order to establish a violation under Brady v. Maryland (1963), 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215, a defendant must prove that the prosecution failed to
disclose evidence upon request, the evidence was favorable to the defense, and the
evidence was material. State v. Garn, 5th Dist. Richland No. 02CA45, 2003-Ohio-820, ¶
23, citing Moore v. Illinois (1972), 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706. It is well-
established that the defendant carries the burden to prove a Brady violation rising to the
level of a denial of due process. See State v. Kulchar, 4th Dist. Athens No. 10CA6, 2015-
Ohio-3703, ¶ 42 (citations omitted). We generally review a Brady materiality question on
appeal as a matter of law. See State v. Fox, 985 N.E.2d 532, 2012-Ohio-4805, ¶ 25 (4th
Stark County, Case No. 2015 CA 00094 6
Dist.), citing State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 12-
13. See, also, United States v. Bullock, 6th Cir. Nos 02–5854, 02–6229, 02–6232, 130
Fed.Appx. 706, 722 (2005).
{¶16} It is initially noteworthy in the case sub judice that appellant was not charged
per se with causing an explosion; nonetheless, because the second count, inducing
panic, was effectively tied to the occurrence of the explosion, it is incumbent that we
consider the import of the State’s handling of the heater and related components.
{¶17} In regard to appellant’s claim of destruction of evidence, we first find he
provides scant refutation of the trial court’s conclusion that the private consultant for the
insurance company, Churchwell, had collected the heater and riser from the scene,
wrapped it in plastic, and placed it in his company’s storage room. See Judgment Entry,
March 3, 2015, at 6-7. Thus, as the trial court recognized, “[t]he heater and riser have
been available for the defendant, his counsel, or anyone else to view upon request.” Id.
at 7. Appellant nonetheless argues that Churchwell, with the involvement of Investigator
Peterman, tampered with the heater and related components such that they “effectively
destroyed any opportunity for [appellant] to secure evidence that the explosion at issue
was in fact caused by a natural gas leak.” Appellant’s Brief at 6. However, other than
appellant’s own recollection in deposition that he smelled natural gas in the garage just
before the explosion, appellant provides nothing definitive to indicate that the heater was
causally connected to the explosion in the garage. We note Churchwell’s report instead
concluded that there was no evidence that the heater or the riser pipe was involved in the
explosion or resulting fire. See Appendix B at 16, 20. Appellant further points to nothing
Stark County, Case No. 2015 CA 00094 7
in the record to show that the heater and riser were damaged or contaminated for
evidentiary purposes by being left at the scene for four days.
{¶18} Moreover, in Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 333,
102 L.Ed.2d 281, the United States Supreme Court stated: “The Due Process Clause of
the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the
State irrelevant when the State fails to disclose to the defendant material exculpatory
evidence. But we think the Due Process Clause requires a different result when we deal
with the failure of the State to preserve evidentiary material 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. * * * We therefore hold that unless a criminal defendant can show bad faith
on the part of the police, failure to preserve potentially useful evidence does not constitute
a denial of due process of law.”
{¶19} Id. at 57-58, emphasis added.
{¶20} The term “bad faith” generally implies something more than bad judgment
or negligence. “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 embraces actual intent to mislead or deceive another.” Hoskins v. Aetna Life
Ins. Co. (1983), 6 Ohio St.3d 272, 276, 452 N.E.2d 1315 (citation omitted).
{¶21} Accordingly, even assuming arguendo that the overall handling of the
heater by Churchwell, acting in the presence of a state investigator on the property,
constituted a failure of the State to properly preserve evidence which is still extant and
might have been subject to further expert review, we find no demonstration of bad faith
on the part of the State in this instance.
Stark County, Case No. 2015 CA 00094 8
{¶22} Therefore, we hold the trial court did not err in denying appellant’s motion
to suppress and/or dismiss.
{¶23} Appellant's sole Assignment of Error is overruled.
{¶24} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
JWW/d 1204