      [Cite as In re D. M., 2013-Ohio-668.]

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




IN RE: D.M.                                   :   APPEAL NO. C-120794
                                                  TRIAL NO. 12-9552z

                                              :   O P I N I O N.




Criminal Appeal From: Hamilton County Court of Common Pleas, Juvenile Division

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: February 27, 2013


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

Gordon C. Magella, for Appellee.




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



Per Curiam.

       {¶1}   Plaintiff-appellant, the State of Ohio, appeals from the trial court’s

judgment dismissing this case on the ground that the state failed to comply with a

discovery order. For the following reasons, we reverse and vacate the trial court’s

judgment and remand this case for further proceedings.

       {¶2}   The state alleged that defendant-appellee, D.M., a juvenile, had

committed an act which, if committed by an adult, would have constituted

aggravated robbery.    The state subsequently moved the trial court to relinquish

jurisdiction and to bind D.M. over to the general division of the common pleas court.

Prior to the probable-cause portion of D.M’s bindover hearing, defense counsel

requested Brady materials and discovery from the state. See Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The state responded, but D.M. was

unsatisfied with the amount of information provided. D.M. therefore moved the trial

court for an order compelling the state to comply with the discovery request and

asked for numerous items including two police reports, a “301 report” and a “527(b)

report.”

       {¶3}   At the hearing on the motion to compel, the state argued that (1) it had

already provided D.M. with any Brady material that it had in its possession and with

the evidence that it intended to use at the probable-cause hearing, and (2) the police

reports were privileged work product and therefore were not discoverable. Following

the hearing, and without examining the documents, the trial court ordered the state

to provide defense counsel with the 301 and 527(b) reports. The state refused. D.M.

then moved the trial court to dismiss the case under Juv.R. 24(C) based on the state’s




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failure to abide by the trial court’s discovery order. Following a hearing, the trial

court granted D.M.’s motion. This appeal ensued.

       {¶4}       In its first assignment of error, the state alleges that the trial court

erred as a matter of law in dismissing the complaint. Specifically, the state contends

that the trial court’s discovery order had been illegal because it had ordered the state

to release privileged material. Therefore, the state argues, its refusal to comply with

the discovery order could not properly be the basis of a dismissal.

              The Probable Cause Hearing and Limits on Discovery

       {¶5}       Before addressing the issue of privilege, we must first determine what

materials are discoverable by a juvenile prior to a probable-cause bindover hearing.

       {¶6}       To establish probable cause that a juvenile committed an offense, the

state must provide credible evidence of every element of the offense that “raises more

than a mere suspicion of guilt, but need not provide evidence proving guilt beyond a

reasonable doubt.” State v. Iacona, 93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001).

The trial court must “evaluate the quality of the evidence presented by the state”

establishing probable cause as well as any evidence presented by the juvenile that

attacks probable cause. Id.; see also In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-

5307, 897 N.E.2d 629, ¶ 42-43. During this hearing, the trial court does not act as

the ultimate fact-finder and makes no determination as to guilt or innocence. In re

A.J.S. at ¶ 44.

       {¶7}       While the probable-cause hearing is quite limited in scope, it is

nevertheless a “critically important stage” in juvenile proceedings since it determines

whether the juvenile will be tried as an adult. Iacona at 91. The hearing therefore

must “measure up to the essentials of due process and fair treatment.” Id., citing

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                       OHIO FIRST DISTRICT COURT OF APPEALS



Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). For

this reason, the Ohio Supreme Court has held that a juvenile facing a probable-cause

hearing is, upon request, entitled to Brady materials from the state. Iacona at 91.

       {¶8}   Based on similar notions of fairness and due process, the Eight

Appellate District held that, absent a limiting-order under Juv.R. 24(B), a juvenile is

entitled to discovery “coextensive” with the issues to be determined at a bindover

hearing. In re A.M., 139 Ohio App.3d 303, 305-306, 743 N.E.2d 937 (8th Dist.2000).

Given the narrow parameters of a probable-cause hearing, the In re A.M. court

suggested that discovery may be limited to the evidence that the state intends to use

at the probable-cause hearing. Id. at 309. Citing In re A.M. with approval, in State v.

Gilbert, 6th Dist. No. L-03-1273, 2005-Ohio-2350, ¶ 13, the Sixth Appellate District

held that, prior to a probable-cause hearing, a trial court may limit discovery to

evidence “relevant” to that hearing. The Gilbert court also determined that a juvenile

had the right to discover the evidence that the state intended to offer to establish

probable cause. Id. at ¶ 12.

       {¶9}   We are obviously bound by Iacona. And we are persuaded by In re

A.M. and Gilbert to the extent that those cases hold that a juvenile is entitled to

discover the evidence that the state intends to use at a probable-cause hearing. But

we reject the language in In re A.M. and Gilbert holding that a juvenile is entitled to

discovery “coextensive” with or “relevant” to the issues to be determined in a

probable-cause hearing. We find that this language is susceptible to an overly-

expansive interpretation. A probable-cause hearing is not an adjudication, jeopardy

does not attach, and a juvenile facing a bindover does not present a defense in the

traditional sense of the word. In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897

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                       OHIO FIRST DISTRICT COURT OF APPEALS



N.E.2d 629, at ¶ 44; In re A.M. at 308. In addition, the outcome of a bindover

proceeding necessarily determines whether Juv.R. 24 or Crim.R. 16 will govern

discovery in a given case. There are vast differences between Juv.R. 24 and Crim.R.

16, and if one applies the other does not. Juv.R. 1(C)(2); Crim.R. 1(C)(5).      We

therefore hold that prior to a probable-cause bindover hearing, the state must

provide to a juvenile upon request only (1) any Brady materials in its possession and

(2) the evidence that the state intends to use at the probable-cause hearing.

       {¶10} We note that our holding is applicable to the probable-cause hearings

for both mandatory and discretionary bindover proceedings.

                                D.M’s Motion to Compel

       {¶11} We review the trial court’s ruling on discovery matters under an abuse-

of-discretion standard. Grace v. Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-

3942, 912 N.E.2d 608, ¶ 13 (1st Dist.)

       {¶12} The state in this case had provided D.M. with the names of three

witnesses, copies of statements by D.M. and two other witnesses, as well as D.M.’s

“waiver of rights” form. D.M.’s motion to compel discovery suggests that D.M.

believed that he was entitled to full discovery prior to the probable-cause hearing.

D.M. moved the trial court to order the state to release a surveillance video, text

messages, phone records, a gun, victim statements, “IDs,” medical records, and

police reports. In response, the state represented to the trial court that it had

provided discovery concerning the evidence that it intended to introduce at the

probable-cause hearing, as well as any exculpatory evidence that it had in its

possession. D.M. did not offer any direct response to these arguments, did not




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                        OHIO FIRST DISTRICT COURT OF APPEALS



properly challenge the state’s response under Brady, and instead simply contended

that he was entitled to the items requested.

       {¶13} Under these circumstances, we hold that the trial court abused its

discretion when it ruled that the state was required to provide D.M. with the 527(b)

and 301 police reports. And since the underlying discovery order was erroneous, we

hold that the trial court erred when it dismissed this case under Juv.R. 24(C) based

on the state’s failure to abide by the order. The state’s first assignment of error is

therefore sustained.

                       Privilege and the Necessity for a Hearing

       {¶14} Although the issue of privilege is moot, we choose to address it since

this issue may arise during D.M.’s adjudication should he remain in juvenile court.

       {¶15} The burden to establish privilege is on the one asserting it. Peyko v.

Frederick, 25 Ohio St.3d 164, 495 N.E.2d 918 (1986). In this case, the state claimed

that the 527(b) and 301 police reports were privileged work product and therefore

were not discoverable. See Juv.R. 24(A) and Juv.R. 24(A)(3). The work-product

doctrine “shelters the mental processes of the attorney, providing a privileged area

within which he can analyze and prepare his client’s case.” United States v. Nobles,

422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); see also Squire, Sanders &

Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469,

937 N.E.2d 533, ¶ 55. The doctrine is “grounded in the realities of litigation in our

adversary system.” Nobles at 238. One of these realities “is that attorneys often must

rely on the assistance of investigators and other agents in the compilation of

materials in preparation for trial.” Id. The work-product doctrine therefore protects




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                        OHIO FIRST DISTRICT COURT OF APPEALS



“material prepared by agents for the attorney as well as those prepared by the

attorney himself” in preparation for trial. Id.

       {¶16}   To preclude allegedly privileged materials from discovery, the party

claiming the privilege must move the trial court for an order limiting discovery under

Juv.R. 24(B). If the moving party can articulate a factual basis to support a good

faith belief that the contested item may be privileged, the trial court must conduct an

evidentiary hearing and/or an in camera review of the contested item before ruling.

Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608 at ¶ 38;

Stegman v. Nickels, 6th Dist. No. E-05-069, 2006-Ohio-4918. Unsupported

assertions of counsel, as occurred in the present case, do not constitute an

“evidentiary hearing” and will not suffice to establish privilege. Peyko, 25 Ohio St.3d

at 166, 495 N.E.2d 918. Should the moving party fail this preliminary showing, the

trial court may rule without first conducting a hearing or in camera review. Where a

hearing is warranted, the trial court may (1) find that an item is not privileged and

therefore is discoverable; (2) find that an item is privileged in its entirety and is not

discoverable; or (3) may order privileged portions of an item to be redacted before it

is discoverable.

       {¶17} In its second assignment of error, the state argues that the trial court

abused its discretion by imposing “the harshest sanction of dismissal.” Given the

disposition of the state’s first assignment of error, this assignment of error is moot

and we decline to address it. App.R. 12(A)(1)(c).

       {¶18} We reverse the trial court’s judgment dismissing the state’s case and

we remand this cause for further proceedings consistent with law and this opinion.

                                              Judgment reversed and cause remanded.

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                     OHIO FIRST DISTRICT COURT OF APPEALS



HENDON, P.J. HILDEBRANDT and CUNNINGHAM, JJ.

Please Note:
       The court has recorded its own entry on the date of the release of this
decision.




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