[Cite as State v. Newton, 2018-Ohio-1392.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105771
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
MARK A. NEWTON
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-608062-A
BEFORE: E.A. Gallagher, A.J., McCormack, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: April 12, 2018
ATTORNEYS FOR APPELLANT
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Margaret Kane
Mary M. Frey
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Paul B. Daiker
Adam Brown
Larry W. Zukerman
Zukerman, Daiker & Lear Co., L.P.A.
3912 Prospect Avenue
Cleveland, Ohio 44115
EILEEN A. GALLAGHER, A.J.:
{¶1} Plaintiff-appellant the state of Ohio (“State”) has appealed from the Cuyahoga
County Common Pleas Court’s judgment dismissing the case against defendant-appellee,
Mark Newton. We affirm.
Introduction
{¶2} On September 12, 2016, Newton was indicted for two counts of rape, two
counts of gross sexual imposition, two counts of kidnapping and two counts of sexual
battery. The case proceeded to a bench trial and during the testimony of the alleged
victim, J.E., it was revealed that the investigating detective assigned to the case, Jessica
Page, had lost or destroyed a relevant diagram drawn by J.E. during a recorded interview.
Upon examination, Page lied in an attempt to conceal her role in the matter. After the
testimony of J.E., Page and a second detective involved in the case concluded, the trial
court granted a motion to dismiss the case that was made by the defense.
{¶3} Our review here is limited to the issue as to whether the trial court erred in
granting Newton’s motion to dismiss and dismissing the case with prejudice.
Facts and Procedural History
{¶4} In 2015, J.E. alleged that Newton sexually assaulted her twice in 2013 in an
equipment room at Laurel School in Shaker Heights, Ohio during the spring of her eighth
grade year. J.E. described the alleged incidents at trial as follows: J.E. was a pitcher on a
school softball team coached by Newton. During the second half of April, 2013 the team
was practicing indoors in the “big gym” at Laurel. Newton approached J.E. and asked
her to accompany him, alone, to a separate, smaller gym in the school for pitching practice.
Newton and J.E. left the big gym and stopped at the “equipment room” located in a
hallway between the two gyms. Newton opened the door to the equipment room and J.E.
entered for the purpose of retrieving a bucket of balls located inside to be used for pitching
practice. After J.E. entered, Newton closed the door behind them, approached J.E. and
ran his hands underneath J.E.’s shorts and underwear, rubbing her vagina. When the
incident ended, Newton apologized and J.E. exited the room and returned to practice in the
big gym with her teammates. She did not tell anyone about what had happened. J.E.
testified that she had accompanied Newton alone to pitching practice in the small gym
several times during the next two weeks and nothing untoward had occurred at those
times. J.E. further testified that approximately two weeks after the first incident in May
2013, a second incident occurred in a virtually identical fashion.
{¶5} Detective Jessica Page of the Shaker Heights Police Department was assigned
to the case and conducted a recorded interview with J.E. on March 23, 2015, during which
J.E. described the equipment room, later identified as room G0003, as containing shelves,
bats, helmets and soccer balls. Later in the interview, J.E. noted that the room was an art
room for a period of time while the school was being renovated. J.E. drew a diagram of
the school that set forth the relevant rooms including the equipment room. Page took the
diagram and entered it into their file.
{¶6} Detective Page admitted at trial that she described herself as J.E.’s “advocate”
and made a number of statements during the first interview that the state concedes were
inappropriate:
1) She described J.E.’s suggestion that Newton should be killed as an
“appropriate response”;
2) I’ll do whatever my victim wants me to do;
3) I like sending people to prison though, don’t get me wrong. So I will be
here and I’ll walk with you through the whole thing and I’ll fight as hard as I
can and I'll get as much evidence as I can * * * and I’ll try and find
everything I can find to help you;
4) You are not a bad witness;
5) You’re putting the truth about what happened to yourself out there.
6) “Once someone is accused of being a sexual impositionist or someone
who touches you know young ladies and takes advantage of their trust theres
(sic) no going back from that whether you’re convicted or not.” Referencing
Michael Jackson, Page stated, “the first thing that’s gonna come up when
you google his name is Mark Newton tried as [an] essentially rapist.”
{¶7} After reviewing the recording of the first interview, Detective Page noticed
that J.E. whispered something into her sleeve during a brief period when Page was out of
the room. Page asked another Shaker Heights detective, Detective Walter Siegel, to
review the video of the interview. Detective Siegel testified at trial that he listened to the
relevant segment repeatedly and believed that J.E. whispered “I don’t think she has the
room right” in reference to the diagram created during the first interview. Based on this
discrepancy, Detectives Page and Siegel conducted a joint interview with J.E. on April 21,
2016.
{¶8} During the second interview, J.E. denied making such a statement and the
detectives questioned J.E. about her description of the equipment room. J.E. drew a
second diagram featuring only the equipment room and circled the locations inside the
room where the softballs were stored. It is impossible to discern from the video of the
second interview where on the diagram J.E. placed the buckets of softballs. J.E. also
described the room as musty, smelling of dust and containing catcher’s equipment. J.E.
contradicted this description at trial, testifying that the catcher’s equipment had been in the
room during a previous year and was not present at the time of the incidents.
{¶9} After the video of the second interview was played during the cross-
examination of J.E., the trial court held a sidebar to address the second diagram. J.E. was
excused from the courtroom and it was established that, prior to trial, Newton’s counsel
had requested that the state turn over the second diagram in discovery. The prosecutor
explained that she had been informed by Detectives Page and Siegel that there was no
second diagram.
{¶10} To address this discrepancy, the trial court allowed the parties to examine
Detective Page. Page admitted that J.E. drew a second diagram during her second
recorded interview and that she did not turn the diagram over to the prosecutor or
Newton’s counsel. Page testified that she did not know where the second diagram was,
that she did not destroy it and that she did not think she had lost it but it might have been
“shredded.”
{¶11} Page was examined extensively about why the lost diagram had not been
brought to the attention of the prosecutor or defense prior to trial. Page initially lied to
the trial court, stating that she informed the prosecutor the week before trial that she
believed there was a second diagram but that she could not find it. Upon further
examination, however, Page admitted that she did not tell the prosecutor about the second
diagram. According to Page, she did not remember the second diagram being created
until the prosecutor contacted her about the defense’s discovery request. At that point
she informed the prosecutor and Detective Siegel that there was no second diagram. She
subsequently reviewed the video from J.E.’s second interview and learned that a second
diagram had been created. After she was unable to locate the diagram in her case file or
desk, she chose not to inform Detective Siegel or the prosecutor of its existence prior to
trial.
{¶12} Page admitted that she knew that the diagram contained information that
could potentially be exculpatory for Newton. This was supported by the fact that Newton
filed a notice of alibi prior to trial asserting that it was impossible for the alleged offenses
to have occurred in the “equipment room” as claimed by J.E. because during the relevant
time period that room was being used as an art storage room. Newton’s notice of alibi
noted his intent to present witnesses who would establish that the room did not contain any
athletic equipment during that time, in contrast to J.E.’s allegations. Instead, Newton’s
attorney intended to establish that the room contained artwork and art tables. Page also
conceded that J.E. had testified at trial that the softballs were lined up only along the side
of a particular wall but in the video from the second interview J.E. appeared to draw the
balls “all over the place.” Aside from being inconsistent with J.E.’s trial testimony, such
placement of the balls may have been inconsistent with the location of any art tables the
defense intended to establish had been in the room. The precise locations of the balls in
the second diagram could not be ascertained from the video of the interview.
{¶13} Following the examination of Detective Page, Newton’s trial counsel moved
to dismiss the charges against him due to the destruction of evidence. The trial court held
its ruling on the motion in abeyance until the testimony of J.E. and Detectives Siegel and
Page had been completed in order to determine if Newton’s counsel could fairly
cross-examine the witnesses about the contents of the missing diagram. During her
cross-examination, J.E. denied drawing the location of the balls in a manner inconsistent
with her prior testimony but conceded that the details of the diagram could not be
discerned from the video of her second interview. J.E. admitted that the trial court would
just have to take her word for it.
{¶14} After the conclusion of the testimony of J.E. and the two detectives, the trial
court revisited Newton’s motion to dismiss. After hearing arguments from the parties,
the court issued a written decision dismissing the charges against Newton with prejudice.
The court found that Detective Page concealed, suppressed or destroyed materially
exculpatory evidence in bad faith. The court stated that it had considered lessor sanctions
short of dismissal but concluded that “no lesser sanction could ever be appropriate under
the facts of this case.”
Law and Analysis
I. Was there a Due Process Violation?
{¶15} We review de novo a trial court’s decision involving a motion to dismiss on
the ground that the state failed to preserve exculpatory evidence. State v. Blackshaw, 8th
Dist. Cuyahoga No. 85432, 2005-Ohio-5203, ¶ 10. The suppression of materially
exculpatory evidence violates a defendant’s due process rights, regardless of whether the
state acted in good or bad faith. State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239,
878 N.E.2d 1, ¶ 9, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963).
{¶16} We note that both parties cite to case law pertaining to discovery violations
under Crim.R. 16. However, the cases cited are inapplicable to a case dealing with the
destruction of evidence. See Bratenahl v. Osredkar, 8th Dist. Cuyahoga No. 104916,
2017-Ohio-5811, ¶ 15-16. Instead, 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, 971 N.E.2d 865, ¶ 73.
{¶17} To be materially exculpatory, “evidence must both 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, 104 S.Ct. 2528, 81 L.Ed.2d 413
(1984). “Even in the absence of a specific request, the prosecution has a constitutional
duty to turn over exculpatory evidence that would raise a reasonable doubt about the
defendant’s guilt.” Id. at 485. The defendant bears the burden to show that the evidence
was materially exculpatory. Powell at ¶ 74, citing State v. Jackson, 57 Ohio St.3d 29, 33,
565 N.E.2d 549 (1991).
{¶18} This court has previously held that the possibility that evidentiary material
could have exculpated the defendant if preserved or tested is not enough to satisfy the
standard of constitutional materiality. State v. Durham, 8th Dist. Cuyahoga No. 92681,
2010-Ohio-1416, ¶ 12, citing Arizona v. Youngblood, 488 U.S. 51, 56, 109 S.Ct. 333, 102
L.Ed.2d 281 (1988). “A clear distinction is drawn by Youngblood between materially
exculpatory evidence and potentially useful evidence. 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, 116 Ohio
St.3d, 2007-Ohio-5239, 878 N.E.2d, at 254. Therefore, when evidence is only potentially
useful, its destruction does not violate due process unless the police acted in bad faith
when destroying the evidence. Cleveland v. Townsend, 8th Dist. Cuyahoga No. 99256,
2013-Ohio-5421, ¶ 22, citing State v. Miller, 161 Ohio App.3d 145, 2005-Ohio-2516, 829
N.E.2d 751 (2d Dist.).
{¶19} 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 the
fraud. It also embraces actual intent to mislead or deceive another. Powell, 132 Ohio
St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 81.
{¶20} In Durham, this court examined a situation where an alleged criminal
incident was caught on videotape but no one viewed the videotape before it was erased.
We noted that the videotape evidence might have been inculpatory or exculpatory or a
combination of the two. We held that the defendant was unable to demonstrate that the
evidence was materially exculpatory and we treated the erased video as only potentially
useful. Durham at ¶ 21.
{¶21} In this case, we need not conclude that the exhibit was materially exculpatory
to find a due process violation because it is undisputed that the second diagram was
potentially useful to the defense and the record contains overwhelming evidence of bad
faith on the part of Detective Page in the destruction or concealment of the diagram.
{¶22} Detective Page’s bad faith is established by the following undisputed facts:
1) the lost diagram was created during J.E.’s second interview and was left in the
possession of Detective Page; 2) unlike the diagram produced in J.E.’s first interview,
Detective Page did not file the second diagram as evidence; 3) when Newton’s counsel
sought discovery of the diagram, Page denied its existence to Detective Siegel and the
prosecuting attorney; 4) Page knew the diagram was lost or destroyed at least a week prior
to trial but elected to conceal this fact from Detective Siegel and the prosecuting attorney;
5) when confronted with the above facts at trial, Page lied to the trial judge about what she
had told the prosecuting attorney. Considering these facts and the previously detailed
inappropriate statements made by Detective Page during the investigation, we agree with
the trial court’s conclusion that bad faith was established in the record.1
II. Remedy
{¶23} Finally, the state argues that the trial court abused its discretion in dismissing
the charges against Newton as a discovery sanction because the prosecuting attorney was
not involved in the willful destruction or loss of the diagram. However, knowledge of
evidence on the part of a law enforcement officer is imputed to the prosecution. State v.
Wiles, 59 Ohio St.3d 71,78, 571 N.E.2d 97 (1991).
{¶24} The state again relies on a line of cases dealing with discovery violations
under Crim.R. 16 including Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138
(1987); State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971; State v.
Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983); and State v. Clark, 8th Dist. Cuyahoga
No. 88731, 2007-Ohio-3777. The state cites Clark for the proposition that the actions of
Detective Page should not be imputed to the prosecutor for the purpose of finding a willful
violation of Crim.R. 16 under the three-part test for determining discovery sanctions set
forth in Parson.
{¶25} However, as addressed above, this court has distinguished between cases
involving discovery violations under Crim.R. 16 and cases dealing with the destruction of
evidence in violation of a defendant’s constitutional due process rights. See Osredkar, 8th
Dist. Cuyahoga No. 104916, 2017-Ohio-5811, at ¶ 15-16. We specifically held that the
1
We note that the trial court went to great lengths to exonerate the prosecuting attorney of any
three factor test from Parson is inapplicable where, as here, the information sought by the
defense no longer exists because it has been destroyed. Id. This is not a case where the
state suppressed exculpatory evidence that was discovered after the defendant’s conviction
and said evidence can be appropriately considered at a new trial. See, e.g. State v.
Russell, 8th Dist. Cuyahoga No. 94345, 2011-Ohio-592.
{¶26} The United States Supreme Court described the process of reaching an
appropriate remedy in cases involving the destruction of evidence as follows:
Whenever potentially exculpatory evidence is permanently lost, courts face
the treacherous task of divining the import of materials whose contents are
unknown and, very often, disputed. * * * Moreover, fashioning remedies for
the illegal destruction of evidence can pose troubling choices. In
nondisclosure cases, a court can grant the defendant a new trial at which the
previously suppressed evidence may be introduced. But when evidence has
been destroyed in violation of the Constitution, the court must choose
between barring further prosecution or suppressing * * * the State’s most
probative evidence.
Trombetta, 467 U.S. at 486-487, 104 S.Ct. 2528, 81 L.Ed.2d 413.
{¶27} Following Trombetta, federal courts have held that dismissal is appropriate
where the disposition of evidence that is central to the case has permanently deprived the
defendant of due process. United States v. Pasha, 797 F.3d 1122, 1138 (D.C.Cir.2015),
citing United States v. Bohl, 25 F.3d 904, 914 (10th Cir.1994). We find that the loss or
destruction of the second diagram in this case permanently deprived Newton of his ability
to challenge J.E.’s account of the alleged incident and, therefore, permanently deprived
him of due process.
wrongdoing in relation to Detective Page’s conduct and deceit.
{¶28} Our conclusion that dismissal was appropriate in this instance would not be
changed even if we applied the Crim.R. 16 discovery sanction rule from Papadelis, 32
Ohio St.3d 1, 511 N.E.2d 1138, that “a trial court must inquire into the circumstances
surrounding a discovery rule violation and, when deciding whether to impose a sanction,
must impose the least severe sanction that is consistent with the purpose of the rules of
discovery.” Id. at paragraph two of the syllabus. The state has failed to proffer a
reasonable alternative sanction short of dismissal. The record reflects that Detective
Page lost or destroyed potentially exculpatory evidence that could have contradicted J.E.’s
trial testimony and, in attempting to conceal this fact, went so far as to lie to another
detective, the prosecuting attorney and the trial court about the circumstances of its
disappearance. We cannot say that the trial court abused its discretion in electing to
dismiss the case as a result of this misconduct and the depravation of Newton’s due
process rights.
{¶29} The judgment of the trial court is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_____________________________________________________
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE
TIM McCORMACK, J., CONCURS and
FRANK D. CELEBREZZE, JR., J., CONCURS IN JUDGMENT ONLY