FOR PUBLICATION

ATTORNEYS FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

MICHAEL R. BURROW    JEFFREY A. MODISETT
JEFFREY S. NEEL    Attorney General of Indiana
Wolf & Burrow
Greenfield, Indiana     CHRIS WORDEN
            Deputy Attorney General
            Indianapolis, Indiana

RALPH E. CHISSELL,             )
                                    )
    Appellant-Defendant,            )
                                    )
        vs.                         )    No. 33A05-9805-CR-238
                                    )
STATE OF INDIANA,                   )
                                    )
    Appellee-Plaintiff.             )

                                

"potentially useful evidence" or "materially exculpatory evidence." Samek v. State, 688 N.E.2d 1286, 1288 (Ind. Ct. App. 1997) (quoting Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281 (1988)), trans. denied. The United States Supreme Court has defined potentially useful evidence as "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." Youngblood, 488 U.S. at 57, 109 S. Ct. at 337, 102 L. Ed. 2d at 289. The State's failure to preserve potentially useful evidence does not constitute a denial of due process of law "unless a criminal defendant can show bad faith on the part of the police." Id. at 58, 109 S. Ct. at 337, 102 L. Ed. 2d at 289; Bivins v. State, 642 N.E.2d 928, 943 (Ind. 1994), cert. denied, 516 U.S. 1077 (1996).
     On the other hand, materially exculpatory evidence is that evidence which "possesses an exculpatory value that was apparent before the evidence was destroyed" and must "be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trumbetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422 (1984). Unlike potentially useful evidence, the State's good or bad faith in failing to preserve materially exculpatory evidence is irrelevant. Samek, 688 N.E.2d at 1288.
    During Officer Thomas' cross-examination, defense counsel questioned Thomas about a video camera located inside his police vehicle. Defense counsel then introduced Defendant's Exhibit A, a letter to the prosecutor from Sergeant James Milner, the Systems Administrator of the New Castle Police Department. In that letter, Sergeant Milner reported

that although Officer Thomas' vehicle had been equipped with an in-car camera, Chissell's "stop and arrest for some reason was not recorded." Milner further informed the prosecutor that the videotape of Chissell's sobriety tests recorded at the jail had been reused.
     Chissell asserts that the tapes would be materially exculpatory evidence "if [they] contained Chissell passing the field sobriety tests." While a defendant is not required to prove conclusively that the destroyed evidence was exculpatory, there must be some indication that the evidence was exculpatory. Johnson v. State, 507 N.E.2d 980, 983 (Ind. 1987), cert. denied, 484 U.S. 946 (1987). We cannot assume that the destroyed evidence contained exculpatory material when the record is devoid of such indication. Id. Chissell provides no evidence in support of his contention that the videotapes contained apparent exculpatory value. Rather, he asks that we speculate. We conclude that the videotapes do not rise to the level of materially exculpatory evidence.
     Assuming the videotapes may have shown Chissell passing the sobriety tests, we agree that the tapes were potentially useful evidence. To show a denial of due process, however, Chissell must demonstrate bad faith. See Bivins, 642 N.E.2d at 943. The record shows that while the in-car camera should have started to record when Officer Thomas activated his overhead lights, the camera did not work. Officer Thomas testified that he did not turn off the in-car camera during Chissell's stop. He also stated that the type of in-car cameras used at the time of Chissell's arrest were later replaced due to recurring problems. In addition, Sergeant Milner testified that the videotape of the sobriety tests Chissell performed at the jail was unavailable because it had been reused. There is no showing that

the tapes were erased intentionally or negligently by the police in order to suppress material evidence. See Johnson, 507 N.E.2d at 980. Chissell has not shown bad faith. Thus, we conclude that Chissell was not denied due process of law.

he and Captain England administered. For example, Chissell could not touch his index finger to his nose, he failed the heel-to-toe test and could not recite the alphabet as requested. Captain England, a twenty-four year veteran, stated that he believed Chissell was intoxicated. At police headquarters, Chissell's BAC was .16 percent. We conclude that the State proved beyond a reasonable doubt that Chissell drove his vehicle in an impaired condition of thought and action and that his condition posed a danger to himself or others on the public roadways. We affirm Chissell's conviction for driving while intoxicated. See Boyd v. State, 519 N.E.2d 182, 184-85 (Ind. Ct. App. 1988) (evidence that driver has committed traffic violation, exhibits signs of intoxication and has a BAC of .10 percent or more is sufficient to sustain conviction for OWI).

jurisdiction over actions for writs of mandamus against inferior state courts based on the alleged failure of the respondent court to act when it was under a duty to act, in this case to compel the trial court to comply with Indiana Code § 35-38-1-1(a). Ind. Original Action Rules 1(A),(B) and 2(A); Ind. Appellate Rule 4(A)(5). Thus, we have no authority to instruct the trial court to enter judgments on the jury verdicts and must dismiss the State's prayer for relief.
    Affirmed in part and dismissed in part.
SHARPNACK, C.J., and BAILEY J., concur.

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