      [Cite as In re J.K., 2013-Ohio-4938.]

                            IN THE COURT OF APPEALS
                   FIRST APPELLATE DISTRICT OF OHIO
                              HAMILTON COUNTY, OHIO



   IN RE: J.K.                                :      APPEAL NO. C-120857
                                                     TRIAL NO. 11-6382z
                                              :

                                              :            O P I N I O N.




Civil Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: November 8, 2013




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Appellant,

Gordon G. Magella, for Appellee.




Please note: this case has been removed from the accelerated calendar.
                          OHIO FIRST DISTRICT COURT OF APPEALS




S YLVIA S IEVE H ENDON , Presiding Judge.

       {¶1}    The state of Ohio appeals the juvenile court’s judgment dismissing this case

against J.K., a juvenile, who was charged with committing an act that would be a robbery

offense if committed by an adult. Because the dismissal was improper as a matter of law, we

reverse the court’s judgment and remand this case for further proceedings.


                             No Delays Were Precipitated by the State


       {¶2}    On July 1, 2011, J.K. was arrested for robbing another child on the previous

day. He was released and ordered to appear in the Hamilton County Juvenile Court on July

28, 2011.

       {¶3}    On July 28, 2011, J.K. entered a plea of denial and filed a request for

discovery pursuant to Juv.R. 24. He was ordered to appear on August 25, 2011, for trial.

       {¶4}    On August 11, 2011, the state filed a request for discovery as well as its

response to the discovery request by the defense. The state’s response to the request

included witnesses’ names and their expected testimony. In addition, the state provided a

recording of J.K’s oral statement to police, wherein he admitted to robbing the victim, a boy

named David, whom he knew from his neighborhood.

       {¶5}    On August 24, 2011, defense counsel filed a motion to compel discovery

pursuant to Juv.R. 24(B), which allows a party to apply to the court for a written order

granting the discovery if “a request for discovery has been made and refused.” In its motion,

the defense asserted that the state had failed to provide “any and all police reports and

supplements, and any written summary or statement of or by any witness (including police

officers) or alleged victim except that which is work product of counsel.” The defense had

not asked for those materials in its initial discovery request.




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       {¶6}     On August 25, 2011, a magistrate of the juvenile court held a hearing on the

defense motion. At that time, the defense acknowledged that the state had provided a “527”

(arrest and investigation) police report.    The defense argued, though, that it was also

entitled to a “301” police (incident) report. The state argued that the 301 report was not

discoverable.

       {¶7}     At the hearing, defense counsel examined Cincinnati Police Detective

Longworth, who had been assigned to investigate the robbery in this case. He testified that

he had received a 301 incident report prepared by Cincinnati Police Officer Mayhams, who

had responded to the victim’s complaint. The detective testified that the information in

such a report may come from a number of sources, and not necessarily from the victim.

       {¶8}     The detective testified that he had interviewed the victim, who had assisted

him in identifying J.K. Shortly thereafter, J.K. was arrested and interviewed, and then

charged with robbery. The detective testified that he had prepared the 527 arrest and

investigation report.

       {¶9}     Although Officer Mayhams, who had prepared the 301 report, was present at

the hearing, defense counsel declined to call him in support of the motion to compel. The

magistrate continued the hearing on the motion for two weeks so that the parties could

submit memoranda in support of their positions.

       {¶10} On September 8, 2011, the magistrate issued an order finding that the 301
report was discoverable because it would have been discoverable under Crim.R. 16, had the

defendant been an adult. The state filed a timely motion to set aside the magistrate’s order,

pursuant to Juv.R. 40(D)(2)(b).

       {¶11} On October 25, 2011, a visiting judge heard arguments on the state’s motion
and continued the matter several times for a ruling. The judge allowed J.K. to remain at

home in the interim.




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       {¶12} On November 28, 2011, the visiting judge again continued the case for a
ruling on the motion. The judge noted that J.K. was being held in detention for other

charges, and that J.K. was “not being held on the [r]obbery charge at this time.”

       {¶13} On January 19, 2012, the visiting judge issued a ruling on the state’s motion
to set aside the magistrate’s order. Initially, the judge noted that “the defendant never

responded in any way to the state’s reciprocal discovery request.” In ruling on the motion,

the judge rejected the magistrate’s determination that the entire 301 report was

discoverable, but adopted the magistrate’s order that the defense was entitled to any

transcriptions or summaries of oral statements of the defendant or witnesses. In doing so,

the judge noted that “the oral statement must be attributed to a party or witness.” The

judge concluded by modifying the magistrate’s order to provide that “the state may redact

portions of the police officer notes or reports that are not transcriptions or summaries of the

defendant or witnesses.” The judge continued the matter “for completion of discovery” and

for a pretrial hearing before a magistrate.

       {¶14} At a pretrial hearing on February 2, 2012, the state informed the magistrate
that its discovery response was complete and that the 301 report did not include statements

or summaries of statements attributable to a particular witness. The magistrate’s order

from that hearing stated that if the 301 report had been “based solely on police interviews[,]

* * * that report is discoverable, whether the witness is named or not.” At the request of

defense counsel, the magistrate continued the case for another pretrial hearing.

       {¶15} Before the February 9, 2012, pretrial hearing, the state provided the defense
with a redacted copy of the 301 report. According to the state, the redacted information in

the report did not include names of witnesses. The magistrate’s order from that hearing

reflected that the defense was satisfied that discovery had been completed. The magistrate

continued the matter to March 8, 2012, for trial.




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                         The Defense Filed a Baseless Motion in Limine


       {¶16} Two days before trial, the defense filed a motion to suppress J.K.’s statements
to police, as well as a motion in limine to prohibit an in-court identification of J.K. by the

robbery victim. The motion in limine alleged that the identification of J.K. at trial “would

have no independent basis, would be unnecessarily suggestive, and would be conducive to

irreparable mistaken identification.” The motion alleged that the victim, David, had been

robbed “by several unknown suspects. No other description was provided by David. [J.K.]

was not an unknown person to David” on the date of the offense.            The defense later

supplemented its motion in limine to allege that the only description of the suspects

provided by David was “male black,” and that “Detective Longworth drove David around to

look for suspects; [J.K.] was pointed out and arrested.”

       {¶17} In support of its motion, defense counsel cited a series of decisions of the
United States Supreme Court that involved identification procedures used by law

enforcement officers. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199

(1967); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Neil

v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432

U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In that line of cases, the Supreme Court

established that due-process concerns are not implicated unless law enforcement officers

use an identification procedure that is suggestive as well as unnecessary. See Manson at

109; Biggers at 198. And even if law enforcement officers use an unnecessarily suggestive

procedure, suppression of the tainted identification is not automatic. Manson at 112-113;

Biggers at 198-199.

       Reliability is the linchpin in determining the admissibility of identification

       testimony * * *. The factors to be considered are set out in Biggers, 409 U.S.,

       at 199-200. These include the opportunity of the witness to view the criminal

       at the time of the crime, the witness' degree of attention, the accuracy of his



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       prior description of the criminal, the level of certainty demonstrated at the

       confrontation, and the time between the crime and the confrontation. Against

       these factors is to be weighed the corrupting effect of the suggestive

       identification itself.

Manson at 114.

       {¶18} In this case, though, J.K.’s motion in limine to prohibit the victim’s in-court
identification of J.K. was not based on an allegation of improper police identification

procedures. Rather, the defense motion argued that, in J.K.’s case,

       the situation is even more suggestive than a ‘show-up’ identification prior to

       trial. In this Juvenile court case, [J.K.] will be the only juvenile in the room

       and will be seated at the defense table, indicating that he is the person who is

       on trial for the offense.   Any in-court identification of [J.K.] without an

       independent basis is highly prejudicial and places the defendant in a highly

       suggestive situation. To prevent this miscarriage of justice, defense moves the

       court to prohibit testimony at trial regarding the identity of the defendant as

       the offender.

       {¶19} The defense did not argue that there had been an improperly suggestive
pretrial identification procedure used by the police. Indeed, the defense acknowledged that

the victim had known J.K. before the offense took place. Despite the independent out-of-

court identification, the defense claimed that an in-trial identification of J.K. by the victim

would be tainted because the placement of J.K. at the defense table would be too highly

suggestive.

       {¶20} There was no factual basis for the defense challenge to the victim’s in-court
identification of J.K. because, as the defense acknowledged, the boys knew each other.

Moreover, there was no constitutional basis upon which to challenge the in-court

identification because there was no allegation that the identification had resulted from an

improper police procedure. See Perry v. New Hampshire, ___ U.S. ___, 132 S.Ct. 716, 721,


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181 L.Ed.2d 694 (2012) (the United States Supreme Court flatly rejected an attempt to

extend the judicial inquiry into the reliability of eyewitness identification to situations where

the identification was not procured by improper law enforcement activity). (Emphasis

added.)


                         The State Did Not Commit a Discovery Violation


       {¶21} On March 8, 2012, the magistrate conducted a hearing on the motion to
suppress. The magistrate took the motion under consideration and continued the trial date

until April 5, 2012.

       {¶22} On April 5, 2012, the magistrate rescheduled the trial date for May 10, 2012.

       {¶23} On May 10, 2012, the magistrate indicated that a ruling on the motion to
suppress was still pending. The magistrate rescheduled the trial date to June 11, 2012.

       {¶24} On June 11, 2012, the magistrate denied the motion to suppress and
conducted a hearing on the motion in limine. At the hearing, Officer Mayhams testified that

he had spoken to the victim and to the victim’s father. The victim told him that he had been

“approached by a few guys that * * * he [had] seen in the neighborhood before.” The officer

testified that the redacted portion of the 301 may have contained further descriptions of the

suspects.

       {¶25} Detective Longworth testified that the victim had told him that he thought he
knew where the suspects would be because they were people he had seen in his

neighborhood. According to the detective, the victim knew who J.K. was, but he did not

know him by name. When asked about the 301 report prepared by Officer Mayhams, the

detective answered that the unredacted report contained more suspect information than the

redacted report.




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       {¶26} At that point, even though J.K. and the victim knew each other at the time of
the attack, defense counsel argued that she had not been provided all of the suspect

information. The magistrate’s order from the hearing stated that

       Defendant sought to preclude the State from having an in court identification

       of him made in the absence of an independently based identification made by

       someone outside of court.      At the crux of Defendant’s objection is an

       allegation that the State failed to comply with a discovery request by

       providing him with a redacted 301 Report on which information to which he

       was entitled was missing.

       {¶27} The magistrate said that, “Specifically, the State had previously claimed that
the 301 Report in question did not include the names of any witnesses or their statements.

The testimony of Detective Longworth today was to the contrary, to wit: ‘there was a suspect

description that’s now redacted that I had available to me at the time.’ ” The magistrate

granted the motion in limine.      In the entry, he noted that the state had offered the

unredacted 301 report to defense counsel.

       {¶28} The state filed a timely objection to the magistrate’s order.

       {¶29} On July 30, 2012, a juvenile court judge held a hearing on the state’s
objection. Defense counsel asked the judge to dismiss the case, alleging that the state had

violated its discovery obligation. The court told defense counsel to put her motion in

writing.

       {¶30} The court did not issue a ruling on the defense motion until December 3,
2012. At that time, the court found that the state had failed to comply with the rules of

discovery and that it had disregarded the order of the visiting judge. The court dismissed

the state’s case with prejudice. The state now appeals.




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                                             The Appeal


       {¶31} In three assignments of error, the state argues that the trial court erred by (1)
ruling that the state was required to provide J.K. with an unredacted “301” police report

under Juv.R. 24 and Crim.R. 16; (2) imposing “the harshest sanction of dismissal” for its

alleged discovery violation; and (3) ruling that J.K.’s constitutional right to a speedy trial

was violated.


                     The State Gave the Defense an Unredacted 301 Report


       {¶32} In its first assignment of error, the state argues that the trial court abused its
discretion when it ruled that the state was required to provide J.K. with the unredacted 301

report under Juv.R. 24 and Crim.R. 16.

       {¶33} We do not address this issue because it is moot. Six months before the trial
court issued the challenged ruling, the state had provided J.K. with an unredacted 301

report in discovery. Consequently, even if Juv.R. 24 and Crim.R. 16 had compelled the

production of the unredacted report, the state had fully complied with those rules. We

overrule the first assignment of error solely because it is moot.


                          No Sanction Because No Discovery Violation


       {¶34} In its second assignment of error, the state argues that the trial court abused
its discretion by imposing the harshest sanction of dismissal, upon its determination that

the state had violated the rules of discovery. We agree with the state. The court’s sanction

was improperly imposed in the first instance because there had been no discovery violation.

       {¶35} In this case, the trial court’s dismissal was based upon its finding that the
state had “repeatedly” failed to comply with discovery and had disregarded the order of the

visiting judge. However, these findings are simply not supported by the record. The state

timely complied with the order of the visiting judge by providing a redacted copy of the 301


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report. Although the defense complained that the redacted portions of the report contained

discoverable information, no evidence was presented to establish that those portions

contained any information that the visiting judge had ordered the state to turn over.

       {¶36} Moreover, well before the defense moved to dismiss the robbery charge on the
ground that the state had not complied with the order of the visiting judge, the state had

arguably exceeded its obligation under the order by providing the defense with an

unredacted 301 report.

       {¶37} Because the trial court’s dismissal was based on its wholly unfounded
supposition that the state had violated an order of the visiting judge or that the state had

violated the discovery rules, we sustain the assignment of error.


                                The State Did Not Cause The Delays


       {¶38} In its third assignment of error, the state argues that the trial court erred by
finding that J.K.’s constitutional right to a speedy trial was violated.

       {¶39} In its dismissal entry, the trial court stated, “This matter has been pending for
fifteen months, as a result of the [s]tate’s failure and refusal to comply with this [c]ourt’s

order.” The court dismissed the case “due to the passage of time, and in the best interest of

the juvenile.”

       {¶40} Even if a juvenile has a constitutional right to a speedy trial, in this case, we
can readily determine that none of the continuances in this case had been occasioned by the

state and that J.K. was not being held in detention on this robbery charge. The trial court

blamed the case’s 15-month delay on the state, but the record does not support this

conclusion. The record reveals that the state complied with the court’s orders, and properly

disputed the magistrates’ decisions within the framework established by the Juvenile Rules.

       {¶41} Moreover, inasmuch as we have determined that the state committed no
discovery violation and caused no delays in the case, there was simply no basis in the record



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to conclude that a dismissal was warranted as being in the best interests of J.K. Juv.R.

29(F)(2)(d) permits a dismissal based on the best interests of the child and the community

only when the allegations of the complaint, indictment, or information are admitted or

proven, neither of which occurred here. The third assignment of error is sustained. We

reverse the court’s judgment dismissing the case against J.K., and remand this cause for

further proceedings.

                                                         Judgment reversed and cause remanded.


HILDEBRANDT and CUNNINGHAM, JJ., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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