[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re D.M., Slip Opinion No. 2014-Ohio-3628.]




                                         NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                          SLIP OPINION NO. 2014-OHIO-3628
                             IN RE D.M., A MINOR CHILD.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
        it may be cited as In re D.M., Slip Opinion No. 2014-Ohio-3628.]
Juv.R. 24 applies in bindover hearings—It is an abuse of discretion for a juvenile
        court not to perform an in camera inspection of documents a party claims
        are privileged or otherwise not discoverable prior to ordering the party to
        turn the documents over to the opposing party.
    (No. 2013-0579—Submitted March 12, 2014—Decided August 28, 2014.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-120794,
                                     2013-Ohio-668.
                                ____________________
        O’NEILL, J.
                                       Introduction
        {¶ 1} In this case we are asked to clarify what evidence a juvenile is
entitled to in discovery prior to a bindover hearing.
        {¶ 2} In answering, we hold that Juv.R. 24 applies in bindover hearings.
We also point out that a prosecuting attorney is under a duty imposed by the Due
                              SUPREME COURT OF OHIO




Process Clauses of the Ohio Constitution and the United States Constitution and
by Juv.R. 24(A)(6) to disclose to a juvenile respondent all evidence in the state’s
possession that is favorable to the juvenile and material either to guilt, innocence,
or punishment. State v. Iacona, 93 Ohio St.3d 83, 752 N.E.2d 937 (2001),
paragraph one of the syllabus. We further hold that it is an abuse of discretion for
a juvenile court to dismiss a case for a prosecuting attorney’s failure to comply
with a discovery order without first performing an in camera inspection of the
withheld evidence to determine whether the evidence is discoverable under Juv.R.
24.
                             Facts and Procedural History
       {¶ 3} On October 15, 2012, a Cincinnati police officer filed a complaint
against D.M. alleging that he was a delinquent child in that he committed a theft
offense with a deadly weapon. The complaint alleged that D.M. had committed
an act that if committed by an adult would constitute aggravated robbery in
violation of R.C. 2911.01, a category-two offense as specified in R.C.
2152.02(CC). The complaint also alleged two firearm specifications. The first
was a firearm-facilitation specification, meaning he brandished or used a firearm
to facilitate the offense.    The second was a firearm-possession specification,
meaning he had a firearm in his possession while committing the offense. D.M.
was 16 years old at the time.
       {¶ 4} On October 16, 2012, the state filed a motion asking the juvenile
court to relinquish jurisdiction and to have D.M. bound over to the general
division of the court of common pleas for prosecution as an adult. On October
17, 2012, D.M. filed a request for discovery pursuant to Juv.R. 24 and Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (due process
entitles an accused, upon request, to evidence known to the state that is favorable
to the accused and is material to either guilt or punishment). The state responded
to D.M.’s discovery request by disclosing the names of the victim and two police




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officers that the prosecuting attorney intended to call to testify at the bindover
hearing regarding the investigation of the crime.         The state’s response also
included an attachment containing D.M.’s signed waiver-of-rights form and oral
statements made by D.M. and two codefendants.
       {¶ 5} On October 25, 2012, the same day on which the bindover hearing
was to take place, D.M. filed a motion to compel discovery requesting that the
juvenile court order the state to turn over additional evidence, including police-
report forms 301 and 527B, relating to D.M.’s case. The court held a hearing on
the motion to compel, and counsel for D.M. asserted that D.M. was entitled to full
Juv.R. 24 discovery, which she asserted included the 301 and 527B police reports.
The state asserted that it had disclosed all the evidence that it was required to
disclose under the law for a bindover hearing. On November 8, the court again
heard arguments on D.M.’s motion to compel, and afterward, the court ordered
the state to turn over the 301 and 527B police reports.
       {¶ 6} Despite the court order, the state did not turn over the 301 and
527B reports.    On November 19, 2012, the court again heard the parties’
arguments on the issue of the discoverability of the 301 and 527B reports. The
state maintained that it had disclosed all the evidence that it was required to
disclose and that the police reports at issue were not discoverable for two reasons:
one, because a bindover hearing is not an adjudicatory proceeding, so Juv.R. 24
does not apply, and two, the reports are privileged work product. D.M. moved for
dismissal of the charges based on the state’s failure to comply with the court’s
discovery order. The juvenile court noted that the state had not requested that the
court limit the information it had to disclose from the police reports. The court
stated that because the documents were prepared in the ordinary course of police
work, rather than in anticipation of litigation, they should have been turned over
to the defense. And because the state had failed to obey the court’s order to turn
over the documents, the juvenile court dismissed the case without prejudice.



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       {¶ 7} The state appealed. Relying in part on the authority of Iacona, 93
Ohio St.3d 83, 752 N.E.2d 937, the First District reversed the juvenile court’s
judgment and held that prior to a bindover hearing, the only evidence that the
state must provide to a juvenile, upon request, is (1) Brady materials in its
possession and (2) evidence that it intends to use at the bindover hearing. The
court vacated the juvenile court’s judgment and remanded the cause.
       {¶ 8} D.M. appealed to this court and urges this court to adopt the
proposition that a juvenile is entitled to full Juv.R. 24 discovery prior to a
bindover hearing held pursuant to R.C. 2152.12. At oral argument, the state asked
this court to clarify what information due process requires to be turned over in
discovery to juveniles prior to a bindover hearing.
                                     Analysis
       {¶ 9} The standard of review of a trial court’s decision in a discovery
matter is whether the court abused its discretion.       State ex rel. Denton v.
Bedinghaus, 98 Ohio St.3d 298, 2003-Ohio-861, 784 N.E.2d 99, ¶ 31.
       {¶ 10} In order to establish probable cause to believe that a juvenile
committed an offense, the state must provide credible evidence that “raises more
than a mere suspicion of guilt, but need not provide evidence proving guilt
beyond a reasonable doubt.” Iacona, 93 Ohio St.3d at 93, 752 N.E.2d 937. The
juvenile court has the duty to assess the credibility of the evidence and to
determine whether the state has presented credible evidence going to each
element of the charged offense, but it is not permitted to exceed the limited scope
of the bindover hearing or to assume the role of the fact-finder at trial. In re
A.J.S., 120 Ohio St.3d 185, 193-194, 2008-Ohio-5307, 897 N.E.2d 629.
       {¶ 11} Regardless of the limited scope of bindover proceedings, the
Supreme Court of the United States has held that the bindover hearing is a
“critically important proceeding” and that the hearing “must measure up to the
essentials of due process and fair treatment.” Id.,quoting Kent v. United States,




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                               January Term, 2014




383 U.S. 541, 562, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) At 562 citing Pee v.
United States, 107 U.S.App.D.C. 47, 50, 274 F.2d 556 (1959).
       {¶ 12} We cited this holding in Iacona in determining that Brady, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and Juv.R. 24(A)(6) apply to mandatory-
bindover hearings in Ohio. Id., 93 Ohio St.3d at 92, 752 N.E.2d 937. Although
we did not explicitly hold in Iacona that Juv.R. 24 applies in its entirety to
bindover hearings, we certainly implied that it does. Nevertheless, we make clear
today that it does. Upon written request, and to the extent not privileged, Juv.R.
24(A) requires the following information to be produced prior to a mandatory or
discretionary bindover hearing:


              (1) The names and last known addresses of each witness to
       the occurrence that forms the basis of the charge or defense;
              (2) Copies of any written statements made by any party or
       witness;
              (3) Transcriptions, recordings, and summaries of any oral
       statements of any party or witness, except the work product of
       counsel;
              (4) Any scientific or other reports that a party intends to
       introduce at the hearing or that pertain to physical evidence that a
       party intends to introduce;
              (5) Photographs and any physical evidence which a party
       intends to introduce at the hearing;
              (6) * * * all evidence, known or that may become known to
       the prosecuting attorney, favorable to the respondent and material
       either to guilt or punishment.




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       {¶ 13} Here, the juvenile court was faced with a standoff between the
state and the defense regarding whether D.M. was entitled to certain police
reports. The state argued (1) that these reports are work product and are thus not
discoverable and (2) that even if they were discoverable, D.M. would not be
entitled to them prior to a bindover hearing because he is not entitled to full
Juv.R. 24 discovery at that stage. D.M. argued that he was entitled to full Juv.R.
24 discovery and that even if he were not, he would clearly be entitled, under
Brady and Iacona, to any information in the police reports that is material to guilt
or punishment that would be favorable to him. At the second hearing on this
matter, it was clear that the parties could not resolve this issue on their own. It
was then that the discoverability of these reports for purposes of D.M.’s bindover
hearing became a question of law for the juvenile court to resolve. The court
ruled in D.M.’s favor and ordered the state to turn over the police reports.
       {¶ 14} We hold that the court should not have ordered the state to turn
over the police reports without first asking the prosecuting attorney to turn the
documents over to the court for an in camera inspection to determine whether
they contained discoverable material under Juv.R. 24. If the judge determined
that they did contain discoverable material, she was then required to determine
whether they also contained nondiscoverable material, such as work product, that
the prosecuting attorney could redact prior to turning the documents over to
D.M.’s counsel. Performing an in camera review of the documents to ascertain
whether they contained privileged information would have ensured a fair
proceeding and the protection of privileged information. Pennsylvania v. Ritchie,
480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987).
       {¶ 15} Juvenile courts are under an obligation to see that the procedural
and substantive due-process rights of juveniles are upheld, but they must also
allow the state to pursue its objectives of rehabilitating juvenile offenders and
protecting society. We note that the juvenile court continued this case twice prior




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                               January Term, 2014




to dismissing it without prejudice. It is certainly understandable why the juvenile
court judge was frustrated with the state’s conduct, but prior to dismissing the
case for failure to comply with the discovery order the juvenile court should have
ordered the state to turn over these police reports to the court for an in camera
inspection. We conclude that it was an abuse of discretion for the juvenile court
to dismiss D.M.’s case without performing such an inspection. This court has
consistently ruled that when imposing a discovery sanction, the court must impose
the least severe sanction that is consistent with the purpose of the rules of
discovery. See, e.g., Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138
(1987), paragraph two of the syllabus. And as we held in State v. Darmond, 135
Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, syllabus, this rule applies
equally to discovery violations committed by the state and to discovery violations
committed by a criminal defendant.
       {¶ 16} In conclusion, we hold that Juv.R. 24 applies in bindover hearings.
A prosecuting attorney is under a duty imposed by Juv.R. 24(A)(6) and the Due
Process Clauses of the Ohio Constitution and the United States Constitution to
disclose to a juvenile respondent all evidence in the state’s possession that is
favorable to the juvenile and material to either guilt, innocence, or punishment.
We further hold that when the state or the juvenile claims that documents are
privileged or otherwise not discoverable, it is an abuse of discretion for the
juvenile court not to perform an in camera inspection of the documents to
determine whether they contain discoverable evidence prior to ordering the party
to turn over the documents to the opposing party or sanctioning the party for
failing to comply with a discovery order.
       {¶ 17} Based on these holdings, we affirm the court of appeals’ judgment
reversing and vacating the juvenile court’s dismissal of D.M.’s case. We stress,
however, that we do not adopt the court of appeals’ holding that the scope of
discovery for a bindover hearing is less than that provided for under Juv.R. 24.



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Thus, we remand the cause to the juvenile court for further proceedings, which
shall include an in camera inspection of the withheld documents to determine
whether they contain evidence discoverable under Juv.R. 24.
                                                                Judgment affirmed
                                                              and cause remanded.
          O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, and FRENCH, JJ.,
concur.
          O’DONNELL, J., concurs in judgment only.
                              ____________________
          Raymond T. Faller, Hamilton County Public Defender, and Gordon C.
Magella, Assistant Public Defender, for appellant, D.M.
          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, for appellee, the state of Ohio.
          Kim Tandy, urging reversal for amicus curiae Children’s Law Center, Inc.
          Timothy Young, Ohio Public Defender, and Brook Burns, Assistant Public
Defender, urging reversal for amicus curiae Office of the Ohio Public Defender.
          Nadia Natasha Seeratan, urging reversal for amicus curiae National
Juvenile Defender Center.
                           _________________________




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