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In re B. N.C.

Court of Appeals of Ohio, Second District

September 20, 2013

IN RE: B. N.C.

Appeal from Common Pleas Court-Juvenile Division Trial Court Case No. JC 2011-7588

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts, Attorney for Plaintiff-Appellee

ANDREA M. SEIELSTAD, Atty. Reg. No. 0066227, University of Dayton School of Law, Attorney for Defendant-Appellant



(¶ 1} Appellant, B.C., appeals from a judgment of the Montgomery County Court of Common Pleas, Juvenile Division, which adjudicated B.C. to be a delinquent child, due to B.C. having knowingly offered to sell a controlled substance, Vicodin, in violation of R.C. 2925.03(A)(1), (C)(2)(a), an act that would have been a felony of the fifth degree if committed by an adult.[1] The trial court ordered B.C. to be committed to the Department of Youth Services (DYS) for a minimum period of six months and a maximum period of age 21. However, the trial court suspended the commitment on condition of good behavior. The court also imposed 13 days of correction time in the local juvenile facility, with 10 days suspended, a probationary period of six months, and other minor sanctions.

(¶ 2} B.C. contends that his adjudication as a delinquent is not supported by sufficient evidence and is contrary to law. He also maintains that R.C. 2925.51, as written and applied, deprives him of his Right of Confrontation under the Sixth Amendment to the U.S. Constitution. In addition, B.C. contends that he submitted a proper written demand in accordance with R.C. 2925.51 and did not waive his right to demand testimony from a lab analyst.

(¶ 3} B.C. additionally challenges the trial court's denial of his motion to suppress evidence. Finally, B.C. argues that the trial court erred in ordering him to serve correction time without reconsidering his disposition.

(¶ 4} We conclude that B.C.'s adjudication as a delinquent is supported by sufficient evidence. We further conclude that R.C. 2925.51, as written and applied, did not deprive B.C. of his Right of Confrontation under the Sixth Amendment to the U.S. Constitution. As an additional matter, B.C. waived the right to demand testimony, based on his failure to submit a written demand in accordance with R.C. 2925.51. B.C. also waived issues pertaining to the search and seizure, other than plain error, by failing to file a motion to suppress, and by failing to set forth good cause for raising the issue in an untimely fashion. Even if the suppression issue had been properly raised, it is without merit, because the detectives had probable cause to arrest B.C., and the search was lawful as incident to the arrest. Finally, the trial court did not err in failing to reconsider B.C.'s disposition after ruling on the objections to the magistrate's report. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

(¶ 5} At some time prior to September 12, 2011, Dayton Police Detective, Ryan Halburnt, received a drug complaint regarding an address on Coventry Rd., which is located in Dayton, Ohio. The target of the investigation was an individual named Jordan Pierce. As a result of the complaint, Halburnt conducted surveillance on Pierce's residence on several occasions. During the surveillance, Halburnt had seen Pierce come out of his house and go to cars that had been parked outside for less than a minute. Pierce would reach into the passenger window of the car, conduct what appeared to be a drug transaction, and go back into the house.

(¶ 6} At about 6:30 p.m. on September 12, 2011, Halburnt and another detective, Gregory Orick, were watching Pierce's house. They were wearing plain clothes and were in an unmarked vehicle. The detectives saw Pierce leave the house and go to the corner of Coventry Rd. and Cleveland Ave., which was a few houses down from where Pierce lived. There, Pierce made contact with B.C., and B.C.'s brother, J.C. At that point, Orick and Halburnt began to follow the suspects. Orick was driving, and Halburnt was sitting in the passenger seat, with binoculars.

(¶ 7} The detectives saw the three suspects walk slowly up Cleveland Avenue. The suspects would stop for a few seconds and then continue walking. At some point, Halburnt saw both B.C. and J.C. hand Pierce money. Pierce then handed something to both of them. Halburnt was unable to tell what Pierce handed B.C. and J.C, but Pierce made hand-to-hand contact with them both.

(¶ 8} After the hand-to-hand transactions occurred, the three suspects continued to walk up Cleveland Ave. They made a right turn onto John Glenn Rd., and walked down that road. At the next cross-street, which was Marimont Drive, Pierce turned right, on a path that would lead him back toward his house. B.C. and J.C. turned left onto Marimont Drive, and the detectives decided to follow them, because they had already identified Pierce, but had not yet identified B.C. and J.C. Almost immediately, B.C. and J.C. met up with a third person, T.F., who was on a bicycle.

(¶ 9} After seeing T.F., the detectives drove down Marimont Drive and onto Pershing Blvd., where they stopped on the side of the road. Halburnt was able to watch all three individuals as Orick was driving. T.F. was in the middle of the street, riding his bicycle. B.C. was in the right-hand lane of travel, walking toward the detectives, and J.C. was on the sidewalk. Halburnt did not lose sight of T.F. at any time. Eventually, Halburnt saw B.C. and T.F. interact. He could see them talking. T.F. got off his bicycle and handed B.C. money. Halburnt saw T.F. with his hand "cupped up" after he handed the money to B.C., and saw B.C. hand something to T.F. Neither Halburnt nor Orick could see exactly what was handed over.

(¶ 10} After the hand-to-hand transaction, Halburnt saw B.C. get onto T.F.'s bicycle and start to ride toward the detectives. T.F. was walking diagonally, continuing toward the detectives and also toward the sidewalk. At that point, the detectives decided to arrest the three individuals, who were about 15 yards away and were starting to separate. Halburnt made contact with T.F. and J.C, while Orick confronted B.C. Orick identified himself as a police officer, and ordered B.C. to stop. B.C. did not initially comply, but eventually stopped. Orick then placed B.C. in custody. B.C. was still on the bicycle and would not get off, so Orick took B.C. off the bike and placed him in handcuffs.

(¶ 11} After placing B.C. in handcuffs, Orick read B.C. his Miranda rights and obtained his acknowledgment of the rights. Immediately after the rights were administered, B.C. said, "This isn't any drug deal." Transcript of Proceedings, Volume II (December 5, 2011), p. 40.

(¶ 12} When placing B.C. under arrest, Orick did a pat-down and discovered $45 in B.C.'s pocket. He did not find drugs. However, while patting T.F. down, Halburnt found two oval white pills that he believed were Vicodin or Hydrocodone, based on his experience. Later lab analysis indicated the pills were, in fact, Hydrocodone, a Schedule III drug. Pills were also found in J.C.'s possession.

(¶ 13} After placing B.C., J.C, and T.F. under arrest, the detectives returned to Pierce's house to continue surveillance. As they pulled up to the house, Pierce was standing in the yard with several individuals. At that point, Halburnt and Orick had on badges and vests that identified them as Dayton police officers. When the detectives got out of their car and announced that they were police detectives, Pierce immediately attempted to run into his house. The detectives chased Pierce into the house and eventually arrested him after a short struggle. They found 18 Hydrocodone pills in Pierce's pocket that matched the pills they had taken from T.F. and J.C.

(¶ 14} Subsequently, the State filed a complaint in Montgomery County Common Pleas Court, Juvenile Division, alleging that B.C., age 17, was delinquent due to having knowingly offered to sell a Schedule III controlled substance, Vicodin, in violation of R.C. 2925.03(A)(1), (C)(2)(a), which would be a fifth degree felony if committed by an adult. The matter was set for an adjudicatory hearing on November 4, 2011. However, the State indicated at the hearing that it had erroneously provided B.C. with a copy of a lab report pertaining to the drugs obtained from J.C, rather than T.F. In addition, the State noted that the defense had previously refused to stipulate to the lab report, and that the State would be uncomfortable giving the defense such short notice of the correct report.

(¶ 15} As a result of the error, the trial court continued the case. The State further noted that the defense had asked for all drug records in the case, and that the State would provide them.

(¶ 16} The adjudicatory hearing was reset for December 5, 2011, and was held on that date before a magistrate. In the meantime, the State filed an amended complaint including two additional charges - Possession of a Controlled Substance and Obstruction of a Public Official in Performance of His Duties. The State had also provided defense counsel with a copy of the correct lab report at the time of the November 4, 2011 hearing.

(¶ 17} At the beginning of the adjudicatory hearing, the trial court asked the parties if any issues remained regarding lab report discovery. The State indicated that there were no issues, and counsel for B.C. did not disagree. He also did not mention any issues.

(¶ 18} The State initially presented testimony from Detective Orick. During Orick's testimony, the State moved to admit State Exhibit A, which was a lab report dealing with the drugs obtained from T.F. The State's motion was made pursuant to R.C. 2925.51, which provides for self-authentication of reports and is prima facie evidence as to the content of the drugs. At that time, the defense objected, because no one was present to testify. The magistrate asked defense counsel if he had filed the necessary paperwork to object to the report, and defense counsel said "no." Transcript of Proceedings, Volume II (December 5, 2011), p. 45.

(¶ 19} At the end of the State's case, the defense objected to the admission of the lab report on Confrontation Clause grounds, and also based on the fact that the defense had previously refused to stipulate to the report. The magistrate admitted the evidence over objection. After the defense concluded its case without presenting evidence, the magistrate dismissed the possession and obstruction counts, due to issues about proper notice having been afforded to the defense. However, the magistrate found B.C. responsible for trafficking and adjudicated him delinquent. Various conditions were imposed, including the suspended sentence to DYS and the 13-day local corrections period, with 10 days suspended.

(¶ 20} B.C. filed objections to the magistrate's decision in December 2011, and then filed supplemental objections in March 2012. In January 2013, the trial court overruled the objections and adopted the decision of the magistrate, including the sanctions that had been previously imposed. B.C. appeals from the judgment overruling his objections and adopting the magistrate's decision.

II. Is the Adjudication of Delinquency Based on Insufficient Evidence?

(¶ 21} B.C.'s First Assignment of Error states as follows:

B.C.'s Conviction of Drug Trafficking Is Against the Sufficiency of Evidence and Contrary to Law.

(¶ 22} Under the First Assignment of Error, B.C. contends that his adjudication of delinquency is not supported by sufficient evidence because the State failed to present enough evidence to establish the element of "sale" or an offer of sale. This argument is based on the fact that neither officer saw what was being exchanged, nor did they see B.C. in possession of any illegal narcotic. According to B.C., the State's case depends on a set of inferences upon inferences, which the law forbids.

(¶ 23} "A sufficiency-of-the-evidence argument challenges whether the state has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law." State v. Cherry, 171 Ohio App.3d 375, 2007-Ohio-2133, 870 N.E.2d 808, ¶ 9 (2d Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). "The proper test to apply to the inquiry is the one set forth in paragraph two of the syllabus of State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492: 'An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.' " Cherry at ¶ 9.

(¶ 24} In the case before us, B.C. was alleged to have committed a violation of R.C. 2925.03(A)(1), (C)(2)(a), which provides as follows:

(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance or a controlled substance analog;
(C) Whoever violates division (A) of this section is guilty of one ...

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