In re B.N.C.

[Cite as In re B.N.C., 2013-Ohio-4071.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

IN RE: B.N.C.

Appellate Case No. 25615

Trial Court Case No. JC 2011-7588

(Appeal from Common Pleas Court-
(Juvenile Division)
...........

OPINION

Rendered on the 20th day of September, 2013.

...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Assistant Prosecuting
Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

ANDREA M. SEIELSTAD, Atty. Reg. No. 0066227, University of Dayton School of Law, 300
College Park, Dayton, Ohio 45469
Attorney for Defendant-Appellant

.............

WELBAUM, J.

{¶ 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.
 2

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

1
The parties have referred to Appellant as B.C., even though his case is captioned In re B.N.C. For purposes of simplicity and
convenience, we will refer to Appellant as “B.C.”
 3

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
 4

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
 5

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.
 6

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
 7

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
 8

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 of the

following:

***
 9

(2) If the drug involved in the violation is any compound, mixture,

preparation, or substance included in schedule III, IV, or V, whoever violates

division (A) of this section is guilty of trafficking in drugs. The penalty for the

offense shall be determined as follows:

(a) Except as otherwise provided in division (C)(2)(b), (c), (d), or (e) of

this section, trafficking in drugs is a felony of the fifth degree, and division (B) of

section 2929.13 of the Revised Code applies in determining whether to impose a

prison term on the offender.

{¶ 25} Thus, in order to establish a violation of the statute, the State had to prove that

B.C. sold or offered to sell a controlled substance. R.C. 2925.01(A) provides that for purposes

of Chapter 2925, “sale” has the same meaning as it does in R.C. 3719.01. Under R.C.

3719.01(A)(A), “ ‘[s]ale’ includes delivery, barter, exchange, transfer, or gift, or offer thereof,

and each transaction of those natures made by any person, whether as principal, proprietor, agent,

servant, or employee.”

{¶ 26} In support of his argument, B.C. relies on State v. Jacobozzi, 6 Ohio St.3d 59,

451 N.E.2d 744 (1983), in which the Supreme Court of Ohio noted that “ ‘[a]n appellate court

will reverse a conviction based solely on circumstantial evidence where that evidence does not,

as a matter of law, preclude all reasonable theories of innocence.’ ” Id. at 61, quoting State v.

Sorgee, 54 Ohio St.2d 464, 377 N.E.2d 782 (1978), syllabus. According to B.C., there are other

reasonable theories of innocence in the case before us. As examples, B.C. notes that Detective

Orick failed to ask T.F. or B.C. if they were just “slapping hands in a friendly gesture,” or

whether B.C. had been giving money to T.F. to use his bicycle. In addition, B.C. contends that

he told Orick that he had received $45 from having worked that day.
 10

{¶ 27} The first two “theories” are not reasonable and do not fit the facts of the case.

Specifically, Detective Halburnt testified that 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. In no way do these actions resemble “slapping hands in a friendly

gesture.” The money was also found on B.C. – not T.F. Consequently, B.C. could not have

been paying T.F. for the use of his bicycle.

{¶ 28} As an additional matter, the assertion about Detective Orick’s testimony

misconstrues the testimony. Orick testified on cross-examination that he had not been led to

believe that B.C. had received $45 from working that day.

{¶ 29} More importantly, however, the continued validity of Jacobozzi and Sorgee is

questionable. In this regard, the Supreme Court of Ohio has stated that:

Circumstantial evidence and direct evidence inherently possess the same

probative value. In some instances certain facts can only be established by

circumstantial evidence. Hence, we can discern no reason to continue the

requirement that circumstantial evidence must be irreconcilable with any

reasonable theory of an accused's innocence in order to support a finding of guilt.

We agree with those courts that have held that an additional instruction on the

sufficiency of circumstantial evidence invites confusion and is unwarranted.

Since circumstantial evidence and direct evidence are indistinguishable so far as

the jury's fact-finding function is concerned, all that is required of the jury is that it

weigh all of the evidence, direct and circumstantial, against the standard of proof

beyond a reasonable doubt. Nothing more should be required of a factfinder.

(Citations omitted.) Jenks, 61 Ohio St.3d at 272, 574 N.E.2d 492, superseded on
 11

other grounds by constitutional amendment, as stated in State v. Smith, 80 Ohio

St.3d 89, 103, fn. 4, 684 N.E.2d 668 (1997).

{¶ 30} Although Jenks did not specifically mention Jacobozzi and Sorgee, the Supreme

Court has clearly rejected the theory expressed in those cases. See State v. Lapping, 75 Ohio

App.3d 354, 360, 599 N.E.2d 416 (11th Dist.1991) (noting that Jenks reversed the position that

the Supreme Court of Ohio had previously taken in Sorgee).

{¶ 31} After reviewing the record, we conclude that the State presented sufficient

evidence to establish the sale of a controlled substance in violation of R.C. 2925.23(A)(1),

(C)(2)(a). While conducting surveillance of a suspected drug dealer, the detectives saw the

dealer engage in a hand-to-hand transaction with B.C., which involved the exchange of money

for what appeared to be drugs. Moments later, the detectives also observed the same type of

hand-to-hand transaction between B.C. and a third party, who was found in possession of

narcotics. B.C. was also found in possession of cash. Shortly thereafter, the detectives found

the same type of pills in the possession of the dealer who had exchanged money and items with

B.C.

{¶ 32} In view of the small size of the items being passed, i.e., two pills, the quick and

furtive nature of these types of transactions, and the distance that the detectives necessarily had to

maintain from the suspects, the detectives did not have to testify that they had actually seen the

pills themselves. A dependence on inferences “is the nature of circumstantial evidence and the

legitimate object of its use.” (Citation omitted.) State v. Haldeman, 2d Dist. Montgomery No.

18199, 2000 WL 1726858, * 3 (Nov. 22, 2000).

{¶ 33} Accordingly, “ ‘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
 12

beyond a reasonable doubt.’ ” Cherry, 171 Ohio App.3d 375, 2007-Ohio-2133, 870 N.E.2d

808, at ¶ 9, quoting Jenks, 61 Ohio St.3d at 259-260, 574 N.E.2d 492, paragraph two of the

syllabus.

{¶ 34} B.C.’s First Assignment of Error is overruled.

III. Was B.C. Denied the Right of Confrontation?

{¶ 35} B.C.’s Second Assignment of Error states as follows:

Revised Code 2925.[51] as Written and Applied in the Instance [sic] Case

Deprived Defendant of His Sixth Amendment Right to Confront Witnesses

Against Him.

{¶ 36} Under this assignment of error, B.C. contends that R.C. 2925.51 violates a

defendant’s right to confront witnesses, because it allows lab reports to be submitted in lieu of

the testimony of the lab analyst who submitted the report. B.C. also contends that submission of

the report involving B.C., in fact, violated B.C.’s rights. According to B.C., the report should

have specifically stated that the recipient would forfeit a fundamental constitutional right if he

failed to submit a written demand for the analyst’s testimony.

{¶ 37} R.C. 2925.51(A) allows prima-facie evidentiary weight to be given to

laboratory reports regarding the content, identity, and weight, or the existence and number of unit

dosages of alleged illegal substances. In addition, the statute requires certain notarized

statements to be attached to the report, verifying the identity and credentials of the individual

signing the report. The notarized statement must also verify that “scientifically accepted tests

were performed with due caution, and that the evidence was handled in accordance with

established and accepted procedures while in the custody of the laboratory.” Id.
 13

{¶ 38} R.C. 2925.51(B) also requires the prosecuting attorney to serve the report on the

attorney of record, or on the accused if there is no attorney, “prior to any proceeding in which the

report is to be used against the accused * * *.” In the case before us, there is no issue

concerning the State’s compliance with the statutory requirements.

{¶ 39} As pertinent to this case, R.C. 2925.51 further provides as follows:

(C) The report shall not be prima-facie evidence of the contents, identity,

and weight or the existence and number of unit dosages of the substance if the

accused or the accused's attorney demands the testimony of the person signing the

report, by serving the demand upon the prosecuting attorney within seven days

from the accused or the accused's attorney's receipt of the report. The time may be

extended by a trial judge in the interests of justice.

(D) Any report issued for use under this section shall contain notice of the

right of the accused to demand, and the manner in which the accused shall

demand, the testimony of the person signing the report.

{¶ 40} In State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270,

the Supreme Court of Ohio held that “[w]hen the state has complied with its obligations under

R.C. 2925.51, a defendant's failure to use the procedures of R.C. 2925.51(C) to demand that a

laboratory analyst testify constitutes a waiver of the opportunity to cross-examine the analyst at

trial and allows the analyst's report to be admitted as prima facie evidence of the test results.”

Id. at paragraph two of the syllabus.

{¶ 41} In addressing the wavier issue, the Supreme Court of Ohio observed that “[i]t is

a well-established principle that Confrontation Clause rights, like other constitutional rights, can

be waived.” (Citations omitted.) Id. at ¶ 14. The court then concluded that waiver was
 14

appropriate in the case before it, because the report complied with the requirements of R.C.

2925.51 and provided notice of the consequences of a failure to demand testimony. Id. at ¶

18-21.

{¶ 42} However, the court declined to consider whether the report, itself, was

testimonial, because it was deciding the matter solely on the waiver issue. Id. at ¶ 12. The

court commented that its prior decision in State v. Crager, 116 Ohio St.3d 369, 2007-Ohio-6840,

879 N.E.2d 745, “strongly supports the argument that the report is not testimonial.” Pasqualone

at ¶ 12. In addition, the court noted that the United States Supreme Court had previously

accepted certiorari to consider the testimonial nature of a laboratory report. Id. at ¶ 12, fn. 4,

citing Melendez–Diaz v. Massachusetts, 552 U.S. 1256, 128 S.Ct. 1647, 170 L.Ed.2d 352 (2008)

(entry of March 17, 2008 granting writ of certiorari as case No. 07-0591). The Supreme Court

of Ohio stressed, however, that a potential decision in Melendez-Diaz would not impact

Pasqualone, due to the dispositive nature of the waiver issue. Id.

{¶ 43} B.C. notes the subsequent decision issued in Melendez-Diaz, and argues that

R.C. 2925.51 violates the Confrontation Clause because it allows lab reports to be submitted in

lieu of the testimony of a lab analyst. We disagree.

{¶ 44} In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d

314 (2009), the United States Supreme Court held that affidavits that report forensic analysis of

material seized by the police fit “within the ‘core class of testimonial statements’ ” covered by

the Confrontation Clause. (Citation omitted.) Id. at 307 and 310. Among other things, the

Supreme Court rejected the proposition that the defense’s ability to subpoena an analyst

precludes a violation. In this regard, the court stressed that:

Converting the prosecution's duty under the Confrontation Clause into the
 15

defendant's privilege under state law or the Compulsory Process Clause shifts the

consequences of adverse-witness no-shows from the State to the accused. More

fundamentally, the Confrontation Clause imposes a burden on the prosecution to

present its witnesses, not on the defendant to bring those adverse witnesses into

court. Its value to the defendant is not replaced by a system in which the

prosecution presents its evidence via ex parte affidavits and waits for the

defendant to subpoena the affiants if he chooses. (Emphasis sic.) Id. at

324-325.

{¶ 45} These statements are consistent with the view expressed in B.C.’s brief, i.e., that

the power to subpoena is not a substitute for the right to confront. While this is true,

Melendez-Diaz also validated laws, like Ohio’s, that allow for waiver. Specifically, the

Supreme Court stressed that:

Perhaps the best indication that the sky will not fall after today's decision

is that it has not done so already. Many States have already adopted the

constitutional rule we announce today, while many others permit the defendant to

assert (or forfeit by silence) his Confrontation Clause right after receiving notice

of the prosecution's intent to use a forensic analyst's report, id., at 13–15

(cataloging such state laws). Despite these widespread practices, there is no

evidence that the criminal justice system has ground to a halt in the States that,

one way or another, empower a defendant to insist upon the analyst's appearance

at trial. (Footnote omitted.) Id. at 325-326.

{¶ 46} The Supreme Court went on to note that:

The dissent finds this evidence “far less reassuring than promised.” Post,
 16

at 2557. But its doubts rest on two flawed premises. First, the dissent believes

that those state statutes “requiring the defendant to give early notice of his intent

to confront the analyst,” are “burden-shifting statutes [that] may be invalidated by

the Court's reasoning.” Post, at 2554, 2557-2558. That is not so. In their

simplest form, notice-and-demand statutes require the prosecution to provide

notice to the defendant of its intent to use an analyst's report as evidence at trial,

after which the defendant is given a period of time in which he may object to the

admission of the evidence absent the analyst's appearance live at trial. See, e.g.,

Ga.Code Ann. § 35–3–154.1 (2006); Tex.Code Crim. Proc. Ann., Art. 38.41, § 4

(Vernon 2005); Ohio Rev.Code Ann. § 2925.51(C) (Lexis 2006). Contrary to the

dissent's perception, these statutes shift no burden whatever. The defendant

always has the burden of raising his Confrontation Clause objection;

notice-and-demand statutes simply govern the time within which he must do so.

States are free to adopt procedural rules governing objections. See Wainwright v.

Sykes, 433 U.S. 72, 86–87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). It is common

to require a defendant to exercise his rights under the Compulsory Process Clause

in advance of trial, announcing his intent to present certain witnesses. * * * There

is no conceivable reason why he cannot similarly be compelled to exercise his

Confrontation Clause rights before trial. See Hinojos–Mendoza v. People, 169

P.3d 662, 670 (Colo.2007) (discussing and approving Colorado's

notice-and-demand provision). Today's decision will not disrupt criminal

prosecutions in the many large States whose practice is already in accord with the

Confrontation Clause. (Emphasis sic.) (Footnote omitted.) Melendez-Diaz,
 17

557 U.S. at 326-327, 129 S.Ct. 2527, 174 L.Ed.2d 314.

{¶ 47} Based on the above discussion, we conclude that R.C. 2925.51 complies with

the Confrontation Clause and does not impermissibly violate a defendant’s Right of

Confrontation. Accord State v. Jackson, 5th Dist. Richland No. 2012-CA-20, 2012-Ohio-5548,

¶ 57 (noting that “in Melendez–Diaz, the Court recognized that the procedure employed by R.C.

2925.51(C) adequately protects an accused's right of confrontation.”)

{¶ 48} Despite the above case law, B.C. argues that the State must go beyond the

minimal requirements of the statute, and mention specific consequences of failing to demand a

witness’ testimony. B.C.’s argument is based on State v. Smith, 3d Dist. Allen No. 1-05-39,

2006 -Ohio-1661. Again, while B.C.’s recitation of the law contained in Smith is accurate,

Smith does not require a finding that the notarized statement provided to B.C. was insufficient.

{¶ 49} Smith was decided prior to Pasqualone and Melendez-Diaz. In Smith, the Third

District Court of Appeals concluded that laboratory reports submitted under R.C. 2925.51 are

testimonial. Id. at ¶ 11-16 (Citations omitted.) Nonetheless, the court concluded that the Right

to Confrontation could be waived under R.C. 2925.51. Id. at ¶ 17. In this regard, the court

stressed that:

Ordinarily, waiver of the confrontation right before trial must be made

knowingly, intelligently, and voluntarily. See Boykin v. Alabama (1969), 39 U.S.

238; State v. Ballard (1981), 66 Ohio St.2d 473, 423 N.E.2d 115. Thus, the

defendant must be fully informed as to the consequences of the waiver. In this case

we cannot say that the State's notice was adequate to fully inform the defendant as

to the consequences of waiver under the statute. (Emphasis sic.) Smith at ¶ 21.

{¶ 50} In explaining the finding of inadequate notice, the Third District Court of
 18

Appeals made the following observations:

The notice provision in subsection (D) must be read in the context of the entire

statute. * * * R.C. 2925.51(B) requires the prosecutor to serve a copy of the

report “prior to any proceeding in which the report is to be used against the

accused,” and subsections (A) and (C) specifically define the circumstances under

which the report can be used as prima facie evidence against the accused. Hence,

the purpose of serving the report on the defendant and notifying him that he has a

right to demand testimony is to inform him that the report will be offered into

evidence against him without such testimony unless he makes such a demand.

The State's notification, though fully compliant with R.C. 2925.51(D),

makes no mention of the statute or of the consequences of waiver set forth in the

statute; namely, that failure to make the demand will permit the laboratory report

to serve as prima facie evidence of the conclusions in the report without the

testimony of the technician. In fact, the State's notice in this case even fails to

indicate that the laboratory report is evidentiary material, but rather couches it as a

response to discovery. The demand requirement of R.C. 2925.51(D) does not

indicate to the defendant that the report will serve as prima facie evidence unless a

written demand for the technician's testimony is made. This notice is insufficient

to fully inform the defendant of the consequences of failing to demand the

witness's testimony, and without such notice the defendant cannot be said to have

knowingly, intelligently, and voluntarily waived his constitutional rights.

(Citation and footnote omitted.) Smith, 3d Dist. Allen No. 1-05-39,

2006-Ohio-1661, at ¶ 23-24.
 19

{¶ 51} In contrast to Smith, the State’s notification in the case before us referenced the

statute and also indicated that failure to demand the testimony within seven days of receipt of the

notice would “result in the report serving as prima facie evidence of its results.” State’s Exhibit

A, p. 2. In fact, the notice conforms precisely to what the Third District Court of Appeals

outlined in Smith. Accordingly, the State’s notice was adequate to fully inform B.C. of the

consequences of waiver under R.C. 2925.51.

{¶ 52} B.C.’s Second Assignment of Error is overruled.

IV. Did B.C. Submit a Written Demand

in Accordance With R.C. 2925.51(C)?

{¶ 53} B.C.’s Third Assignment of Error states as follows:

Defendant Submitted Written Demand in Accordance With the Statute and

Therefore Did Not Waive His Right to Confront the Lab Analyst.

{¶ 54} Under this assignment of error, B.C. contends that e-mails and conversations

between his counsel and the State constituted sufficient notification of B.C.’s demand that the

testimony of the lab analyst be presented. The State argues that B.C. admitted at the

adjudicatory hearing that he had failed to submit a written demand in compliance with R.C.

2925.51. We agree with the State.

{¶ 55} As was noted, R.C. 2925.51(C) states that

The report shall not be prima-facie evidence of the contents, identity, and

weight or the existence and number of unit dosages of the substance if the accused

or the accused's attorney demands the testimony of the person signing the report,

by serving the demand upon the prosecuting attorney within seven days from the
 20

accused or the accused's attorney's receipt of the report. The time may be extended

by a trial judge in the interests of justice.

{¶ 56} At the adjudicatory hearing, B.C. objected when the State moved to admit the

lab report dealing with the drugs obtained from T.F. At that point, the trial court asked B.C.’s

counsel if he had filed the necessary paperwork to object to admission of the lab report. In

response, B.C.’s counsel said, “no.” Transcript of Proceedings, Volume II (December 5, 2011),

p. 45. Based on this admission, we conclude that B.C. waived the right to have the lab analyst

testify.

{¶ 57} In objections filed after the adjudicatory hearing, B.C. raised the argument that

e-mails and discussion during the first-scheduled adjudicatory hearing in November 2011 had

sufficiently asserted a demand for testimony. However, the e-mails and discussion in question

relate to the State’s disclosure of the wrong lab report. Specifically, the State had erroneously

provided B.C. with a lab report pertaining to another case.

{¶ 58} Because the State failed to disclose the proper report, the adjudicatory hearing

was continued to December 5, 2011. The State then provided B.C. with a copy of the correct lab

report on November 4, 2011. However, neither the e-mails sent to the State after that time nor

the affidavit of B.C.’s counsel indicate that any written demand for testimony was ever submitted

to the State in conjunction with the lab report given to B.C. on November 4, 2011. See Conrad

Affidavit and Exhibits attached to Docket #8 (Defendant’s Response to State’s Response to

Supplemental Objections to Magistrate’s Decision and Judge’s Order).

{¶ 59} Accordingly, even if we were inclined to disregard B.C.’s admission at the

adjudicatory hearing (which we are not), B.C. failed to submit a timely written demand for

testimony under R.C. 2925.51(C). B.C., therefore, waived the right to require the lab analyst to
 21

testify.

{¶ 60} B.C.’s Third Assignment of Error is overruled.

V. Did the Magistrate Err in Overruling B.C.’s Motion to Suppress?

{¶ 61} B.C.’s Fourth Assignment of Error states that:

The Trial Court Erred in Denying the Suppression of the Currency Found

on Defendant During the Pat-Down.

{¶ 62} Under this assignment of error, B.C. contends that the trial court erred in

concluding that the search of B.C. took place incident to a valid arrest. B.C. argues that

Detective Orick conducted a pat-down search and did not arrest him until after multiple cruisers

had arrived. In addition, B.C. maintains that Orick exceeded the permissible scope of the

pat-down search when he reached into B.C.’s pocket and extracted currency.

{¶ 63} In response, the State maintains that B.C. waived his objection to the search by

failing to file a motion to suppress prior to the adjudicatory hearing. The State further argues

that the detectives had probable cause to arrest B.C. and that the search was lawful, as incident

to the arrest.

{¶ 64} Juv.R. 22(D) states that:

Any defense, objection or request which is capable of determination

without hearing on the allegations of the complaint may be raised before the

adjudicatory hearing by motion. The following must be heard before the

adjudicatory hearing, though not necessarily on a separate date:

***

(3) Motions to suppress evidence on the ground that it was illegally
 22

obtained * * *.

{¶ 65} Pursuant to Juv.R. 22(E)(1), prehearing motions to suppress must be filed seven

days prior to the adjudicatory hearing. However, Juv.R. 22(E) also states that “[t]he court for

good cause shown may permit a motion to suppress evidence under division (D)(3) of this rule to

be made at the time the evidence is offered.”

{¶ 66} In the case before us, B.C. did not file a motion to suppress prior to the

adjudicatory hearing. Moreover, he also did not object to the testimony about the search during

Detective Orick’s testimony. In fact, B.C. waited until after the State rested to raise the

suppression issue. Even at that time, B.C. did not show good cause, let alone any cause, for

failing to raise the issue earlier. Under the circumstances, we conclude that B.C. has waived this

issue, other than any plain error that occurred due to admission of the evidence. In re Lower,

4th Dist. Highland No. 06CA31, 2007-Ohio-1735, ¶ 13. (Citations omitted.)

{¶ 67} “Crim.R. 52 allows plain errors to be recognized, stating that ‘plain errors or

defects affecting substantial rights may be noticed although they were not brought to the attention

of the court.’ ” Id. “As defined by the Supreme Court of Ohio, plain error does not exist unless

it is clear that but for the error, the jury's verdict would have been otherwise.” Id., citing State v.

Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d 894 (1990). “Importantly, an appellate court should

exercise the utmost caution when taking notice of plain error under Crim.R. 52(B), invoking the

rule only in exceptional circumstances and only to prevent a miscarriage of justice.” Lower at ¶

13, citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the

syllabus.

{¶ 68} After reviewing the matter, we find no error, let alone plain error. The

testimony of Detective Orick indicates that he placed B.C. in custody when he took B.C. off the
 23

bicycle after B.C. had initially failed to comply with an order to stop. Orick then placed B.C. in

handcuffs. Orick also stated that in placing B.C. under arrest, he did a pat-down and discovered

some cash. Transcript of Proceedings, Volume II (December 5, 2011), p. 41.

{¶ 69} We noted in State v. Shipp, 2d Dist. Montgomery No. 24933, 2012-Ohio-6189,

that:

One of the exceptions to the general prohibition against warrantless

searches is a search incident to a lawful arrest. Chimel v. California, 395 U.S.

752, 762–63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). “When conducting a search

incident to arrest, police are not limited to a Terry pat-down for weapons, but may

conduct a full search of the arrestee's person for contraband or evidence of a

crime.” State v. Gagaris, 12th Dist. Butler No. CA2007-06-142,

2008-Ohio-5418, ¶ 16 (Citations omitted.) See also State v. Jones, 112 Ohio

App.3d 206, 215, 678 N.E.2d 285 (2d Dist.1996).

“If probable cause to arrest without a warrant exists prior to a search, it is

immaterial that the search incident to arrest actually precedes the arrest. * * * The

key is the prior existence of probable cause, and that the fruit of the search not

provide the justification for the arrest.” State v. Haines, 12th Dist. Clermont No.

CA2003-02-015, 2003-Ohio-6103, ¶ 17. Shipp at ¶ 24-25.

{¶ 70} Previously, we have defined probable cause to arrest as follows:

“Probable cause to arrest depends ‘upon whether, at the moment the arrest

was made * * * the facts and circumstances within [the arresting officers']

knowledge and of which they had reasonably trustworthy information were

sufficient to warrant a prudent man in believing that the [suspect] had committed
 24

or was committing an offense.’ ” Adams v. Williams (1972), 407 U.S. 143, 148,

92 S.Ct. 1921, 32 L.Ed.2d 612, citing Beck v. Ohio (1964), 379 U.S. 89, 91, 85

S.Ct. 223, 13 L.Ed.2d 142 * * * The existence of probable cause is determined by

looking at the totality of the circumstances. See Illinois v. Gates (1983), 462 U.S.

213, 230-232, 103 S.Ct. 2317, 76 L.Ed.2d 527. State v. Jones, 183 Ohio App.3d

839, 2009-Ohio-4606, 919 N.E.2d 252, ¶ 15 (2d Dist.).

{¶ 71} At the moment Orick arrested B.C., the detectives had probable cause. The

detectives had previously observed B.C. exchanging money and receiving something from a

suspected drug dealer that the detectives had been monitoring for some time. In addition, the

detectives observed B.C. receiving money and passing something to a third party almost

immediately after the first suspected drug transaction. B.C. also initially refused to comply with

an order to stop and had to be physically removed from the bicycle. Under the totality of the

circumstances, the facts within the detectives’ knowledge were sufficient to warrant a prudent

person in believing that B.C. had committed an offense. Thus, Orick had probable cause for the

arrest and was lawfully entitled to search B.C. incident to the arrest.

{¶ 72} B.C.’s Fourth Assignment of Error is overruled.

VI. Did the Trial Court Err in Ordering B.C. to Corrections Time

More Than One Year After the Incident?

{¶ 73} B.C.’s Fifth Assignment of Error states that:

The Trial Court Erred in Ordering B.C. to Corrections Time More Than

One Year After the Incident and Magistrate’s Decision on Disposition Without

Finding That It Was in the Best Interests of the Child or the Community.
 25

{¶ 74} Under this assignment of error, B.C. notes that a considerable period of time

elapsed between the magistrate’s disposition and the trial court’s ruling on the objections. B.C.,

therefore, contends that the trial court should have made factual determinations at the time of its

decision about B.C.’s best interest and how the imposed sentence would achieve B.C.’s

rehabilitative goals.

{¶ 75} The complaint against B.C. was filed in September 2011, when B.C. was 17

years old. B.C. filed objections to the magistrate’s decision in December 2011, shortly after the

adjudicatory hearing was held. After the transcript was prepared, B.C. filed supplemental

objections in March 2012, and also filed a response to the State’s memorandum in May 2012.

The trial court then rendered its decision in late January 2013, more than eight months later.

Contrary to B.C.’s assertion, the trial court did not take more than a year to render a decision on

the objections.

{¶ 76} In support of his position, B.C. cites authority indicating that:

The juvenile court * * * must impose dispositions which are “reasonably

calculated to achieve the overriding purposes set forth in [R.C. 2152.01],

commensurate with and not demeaning to the seriousness of the delinquent child's

* * * conduct and its impact on the victim, and consistent with dispositions for

similar acts committed by similar delinquent children * * *.” R.C. 2152.01(B).

The “overriding purposes for dispositions” include providing for the care,

protection, and mental and physical development of the delinquent child; holding

the offender accountable for his actions; restoring the victim; and rehabilitating

the offender. R.C. 2152.01(A). In re J.P., 9th Dist. Summit No. 24538,

2009-Ohio-3974, ¶ 8.
 26

{¶ 77} We see no evidence indicating that the trial court failed to comply with these

requirements. In fact, B.C. received minimal sanctions for a crime that would be a fifth-degree

felony if committed by an adult. B.C.’s sentence to DYS was suspended, contingent upon good

behavior. In addition, 10 days of the 13-day corrections period were suspended, requiring B.C.

to serve only one weekend in a local juvenile facility. These were not harsh punishments, and

were reasonably calculated to rehabilitate B.C. while providing some impetus for his continued

good behavior.

{¶ 78} B.C. also contends that the trial court was required to conduct a de novo review

of the facts and to render an independent analysis of the issues. This is a correct statement of

law. See, e.g., In re N.M., 2d Dist. Montgomery No. 24110, 2010-Ohio-5048, ¶ 14. Again,

however, we see no evidence that the trial court failed to conduct an independent review. The

trial court’s decision on the objections was quite lengthy and considered all the points that B.C.

raised. Furthermore, B.C. has failed to provide authority indicating that the judge must conduct

a further dispositional hearing after ruling on objections.

{¶ 79} Accordingly, B.C.’s Fifth Assignment of Error is overruled.

VII. Conclusion

{¶ 80} All of B.C.’s assignments of error having been overruled, the judgment of the

trial court is affirmed.

.............
 27

HALL and YARBROUGH, JJ., concur.

(Hon. Steve A. Yarbrough, Sixth District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio.)

Copies mailed to:

Mathias H. Heck
Michele D. Phipps
Andrea M. Seielstad
Hon. Anthony Capizzi