[Cite as State v. Hughes, 2016-Ohio-137.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 26869
:
v. : T.C. NO. 1998-CR-01706
:
THOMAS C. HUGHES : (Criminal appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___15th___ day of ___January___, 2016.
...........
CARLEY J. INGRAM, Atty, Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, 120 W. Second Street, Suite 706,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} Defendant-appellant Thomas C. Hughes appeals a decision of the
Montgomery County Court of Common Pleas, Criminal Division, overruling his motion to
preserve physical evidence. Hughes filed a timely notice of appeal with this Court on
October 19, 2015.
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{¶ 2} On September 29, 1998, Hughes was convicted of one count of felonious
assault, one count of kidnapping, and three counts of rape. The trial court subsequently
sentenced him to life in prison.
{¶ 3} On August 6, 2015, Hughes filed a motion to preserve physical evidence with
the trial court. In support of his motion, Hughes cited a decision from the Ohio Supreme
Court, State v. Roberts, 134 Ohio St.3d 459, 2012-Ohio-5684, 983 N.E.2d 334, wherein
the court held that “the obligation to preserve and catalog criminal-offense-related
biological evidence imposed upon certain government entities by R.C. 2933.82 applies to
evidence in the possession of those entities at the time of the statute's effective date.” Id.
at ¶ 31.
{¶ 4} On September 21, 2015, the trial court overruled Hughes’ motion, finding that
the Ohio Supreme Court’s holding in Roberts did not retroactively apply to Hughes, who
was convicted and sentenced in September of 1998.
{¶ 5} It is from this judgment that Hughes now appeals.
{¶ 6} Hughes’ sole assignment of error is as follows:
{¶ 7} “THE TRIAL COURT ERRED WHEN IT OVERRULED HUGHES’ MOTION
TO PRESERVE PHYSICAL EVIDENCE.”
{¶ 8} In his sole assignment, Hughes contends that the trial court erred when it
overruled his motion to preserve physical evidence. Specifically, Hughes argues that the
Ohio Supreme Court’s holding in Roberts was misconstrued by the trial court because
R.C. 2933.82 “applies to evidence that was in the government’s possession at the time
of the statute’s enactment.” Roberts, 134 Ohio St.3d 459, 2012-Ohio-5684, 983 N.E.2d
334, ¶ 25. We note that the State has filed a brief in which it concedes error regarding
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the trial court’s determination that the holding in Roberts does not entitle Hughes to an
order preserving all biological and/or physical evidence collected in the instant case.
{¶ 9} The issue in the instant case was not whether the holding in Roberts
retroactively applied to Hughes. The issue was whether the evidence which Hughes
sought to be preserved was in the possession of the State at the time of the effective date
of R.C. 2933.82. Thus, the State concedes error on appeal.
{¶ 10} Accordingly, we find that the trial court erred when it overruled Hughes’
motion to preserve physical evidence. The effective date of R.C. 2933.82 was July 6,
2010. Therefore, pursuant to Roberts, Hughes is entitled to an order preserving all of
the physical evidence in the possession of the State as of July 6, 2010. Both parties
agree that the proper remedy on appeal is to reverse and remand this case for an order
preserving all biological/physical evidence in the instant case.
{¶ 11} Hughes’ sole assignment of error is sustained.
{¶ 12} Hughes’ sole assignment of error having been sustained, the judgment of
the trial court is reversed, this matter is remanded to the trial court for proceedings
consistent with this opinion.
..........
FROELICH, P.J. and FAIN, J., concur.
Copies mailed to:
Carley J. Ingram
Robert Alan Brenner
Hon. Dennis J. Adkins