author: M. POWELL, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Gregory CLAYTON, Defendant-Appellant.
    NO. CA2017-01-009
    Court of Appeals of Ohio, Twelfth District, Warren County.
    November 13, 2017
    David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
    Thomas G. Eagle, 3400 North State Route 741, Lebanon, Ohio 45036, for defendant-appellant
   M. POWELL, J.

{¶ 1} Defendant-appellant, Gregory Clayton, appeals his conviction in the Warren County Court of Common Pleas for possession of marijuana.

{¶ 2} Around 1:30 a.m. on February 11, 2014, Warren County Sheriff's Deputy Andrew Grossenbaugh was parked in his police cruiser along Interstate 71 and observed a Chrysler Pacifica traveling southbound at 64 m.p.h. in a 70 m.p.h. zone. The Pacifica's speed was unremarkable to the deputy. However, after passing the deputy's police cruiser, the Pacifica slowed to 53 m.p.h., which the deputy found to be suspicious. Deputy Grossenbaugh began following the Pacifica. After he observed it make several marked lane and lane change violations, he initiated a traffic stop.

{¶ 3} Upon approaching the vehicle, the deputy found appellant in the driver's seat and Jason Raphael in the front passenger seat, speaking on a cell phone. According to Deputy Grossenbaugh, the cell phone conversation alerted him to the possibility of drug activity because it is common for drug couriers to call and alert their contact when they are stopped by police. The deputy observed eight large, block-shaped packages, tightly taped and wrapped with moving blankets, upon the folded-down back seats of the Pacifica. The deputy thought the packages were suspicious because drug couriers often wrap drugs with moving blankets and the packages were similar in size and shape to bales of marijuana. The Pacifica was also traveling along Interstate 71, which is a known drug corridor.

{¶ 4} During Deputy Grossenbaugh's initial contact with appellant and Raphael, both men were extremely nervous, shaking excessively, and avoiding eye contact. The deputy obtained identification from appellant but Raphael was unable to produce identification or his social security number. Instead, Raphael provided the deputy with his Horseshoe Casino player's card, a name, and a date of birth. The deputy also observed five cell phones and an air freshener in the vehicle.

{¶ 5} Sergeant (then Deputy) Randy Asencio arrived at the scene and the officers separately interviewed appellant and Raphael. The Pacifica was registered to an 84-year-old woman from Cincinnati, Ohio, who appellant claimed was his aunt. Appellant provided conflicting explanations as to where he was going but ultimately stated he was moving "furniture or antiques" of his recently deceased aunt. Appellant stated he was moving the furniture from Columbus to Cincinnati. Deputy Grossenbaugh did not believe the bundles were furniture or antiques because they were all similar in shape and size and he believed the tight wrapping of the packages would damage the antiques. There was confusion during the officers' interviews with appellant and Raphael regarding whether the men were transporting the packages from Columbus or Cincinnati. In addition, the two men provided inconsistent stories as to how long they had known each other.

{¶ 6} A canine unit arrived at the scene. Appellant and Raphael were each placed in the back of the officers' separate police cruisers. Before being placed in the cruisers, the men consented to a search of their persons and rolling papers were found on Raphael. Although the canine unit did not alert to the presence of drugs, both officers believed the wrapped packages in the back of the Pacifica were bales of marijuana and the canine unit's failure to alert did not lessen their suspicions. Consequently, Deputy Grossenbaugh contacted Detective Dan Schweitzer of the Warren County Drug Task Force for assistance to obtain a search warrant. Detective Schweitzer arrived at the scene and after viewing the packages, he too believed they were bales of marijuana. Appellant declined a request for consent to search the Pacifica and the officers decided to obtain a search warrant for the vehicle.

{¶ 7} Thereafter, appellant and Raphael were separately transported to the Warren County Sheriff's Office. The Pacifica was taken to the Drug Task Force headquarters where Detective Schweitzer drafted the affidavit for a search warrant. At approximately 6:00 a.m., the warrant was signed by a judge and the search warrant was executed. The bundles in the back of the vehicle were found to be bales of marijuana.

{¶ 8} On March 17, 2014, appellant and Raphael were each indicted for trafficking in marijuana, in violation of R.C. 2925.03(A)(2), and possession of marijuana, in violation of R.C. 2925.11(A), both second-degree felonies since the marijuana equaled or exceeded 40,000 grams. Appellant was also indicted for permitting drug abuse, in violation of R.C. 2925.13(A), a fifth-degree felony.

{¶ 9} Appellant and Raphael moved to suppress the evidence found from the search of the vehicle and their persons along with the statements both made to the police. Following an evidentiary hearing, the trial court suppressed the evidence seized as a result of the search of the Pacifica and evidence obtained from appellant. The trial court reasoned that while the initial traffic stop and detention was lawful, once the canine failed to alert to the presence of drugs, further detention of appellant and the Pacifica was illegal. The trial court, however, denied the motion to suppress the evidence obtained from Raphael's person or the statements he made to the police.

{¶ 10} The state appealed the suppression of the marijuana found in the Pacifica. On August 10, 2015, we reversed the trial court's decision, finding that considering the information known to the officers prior to the time the canine unit responded to the scene, the officers had probable cause to search the Pacifica pursuant to the automobile exception, and therefore, the continued detention of the vehicle to obtain a search warrant did not violate the Fourth Amendment to the United States Constitution. State v. Raphael , 12th Dist. Warren Nos. CA2014-11-138 and CA2014-11-139, 2015-Ohio-3179, 2015 WL 4716825, ¶ 31. We remanded the matter to the trial court for further proceedings.

{¶ 11} Appellant sought a discretionary appeal to the Ohio Supreme Court. Initially, the supreme court accepted jurisdiction to review the Fourth Amendment issue pursuant to the recent decision of the United States Supreme Court in Rodriguez v. United States , --- U.S. ----, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015). However, the Ohio Supreme Court later dismissed the appeal for failure to prosecute when appellant's then appellate counsel failed to file a merit brief. State v. Raphael , 145 Ohio St.3d 1431, 2016-Ohio-1328, 47 N.E.3d 872. The supreme court subsequently denied appellant's motion for reconsideration and his pro se motion for relief and pro se application for reopening the appeal. State v. Raphael , 145 Ohio St.3d 1431, 2016-Ohio-1328, 47 N.E.3d 872 ; and State v. Raphael , 147 Ohio St.3d 1457, 2016-Ohio-8121, 64 N.E.3d 1001.

{¶ 12} The matter was then returned to the trial court for further proceedings. On remand, appellant and Raphael were tried jointly in a bench trial. Neither testified at trial. Deputy Grossenbaugh, Sergeant Asencio, Detective Schweitzer, and Franklin Police Officer Steven Dunham testified on behalf of the state. The trial court heard closing arguments from the parties and took the matter under advisement. On January 13, 2017, the trial court found appellant guilty of marijuana possession and permitting drug abuse, but not guilty of trafficking in marijuana, and sentenced him to a mandatory eight years in prison.

{¶ 13} Appellant now appeals, raising two assignments of error.

{¶ 14} Assignment of Error No. 1:

{¶ 15} THE TRIAL COURT ERRED IN CONVICTING THE DEFENDANT WITHOUT REOPENING THE MOTION TO SUPPRESS.

{¶ 16} Appellant argues that given the ineffective assistance of his then appellate counsel in failing to prosecute the discretionary appeal to the supreme court, the only remedy available to appellant should have been to reopen the motion to suppress and reconsider the Fourth Amendment issue under Rodriguez . Therefore, appellant asserts, the trial court erred in convicting him of marijuana possession and permitting drug abuse without first reopening the motion to suppress.

{¶ 17} Rodriguez was decided on April 21, 2015, several months before we reversed the trial court's grant of appellant's motion to suppress. Appellant's arguments regarding the Fourth Amendment issue could have been raised in a motion for reconsideration of this court's opinion immediately after our opinion was released on August 10, 2015, but were not.

{¶ 18} Following the supreme court's dismissal of appellant's discretionary appeal and denial of his subsequent motions for reconsideration, relief, and reopening the appeal, the matter was returned to the trial court. Under the "law of the case" doctrine, the decision of a reviewing court in a case remains the law of that case on legal questions involved for all subsequent proceedings at both trial and reviewing levels. State v. Davis , 2d Dist. Clark No. 2005-CA-43, 166 Ohio App.3d 468, 2006-Ohio-1592, 851 N.E.2d 515, ¶ 24. The rule is necessary to avoid endless litigation by settling the issues and to preserve the structure of superior and inferior courts as designated by the Ohio Constitution. State v. Keller , 2d Dist. Montgomery No. 18411, 2001 WL 585725, *4-5 (June 1, 2001).

{¶ 19} Appellant was unable to persuade the supreme court to reconsider its dismissal of the discretionary appeal. Even though appellant asserted ineffective assistance of his then appellate counsel as grounds for his subsequent motions, appellant was further unable to persuade the supreme court to grant him relief and reopen the appeal in order to review the Fourth Amendment issue under Rodriguez . In other words, appellant was unable to persuade the supreme court to accept our August 10, 2015 opinion for review and to reverse it. The supreme court's denial of appellant's motions leaves intact our ruling that the motion to suppress was improperly granted, which is the law of the case. Once the matter was back before the trial court, appellant never moved to reopen the motion to suppress. There is no obligation for a trial court to sua sponte reopen a motion to suppress. The trial court, therefore, did not err in convicting appellant without first reopening the motion to suppress.

{¶ 20} Appellant's first assignment of error is overruled.

{¶ 21} Assignment of Error No. 2:

{¶ 22} THE TRIAL COURT ERRED IN TRYING THE DEFENDANTS TOGETHER AND ADMITTING HEARSAY FROM ONE CO-DEFENDANT AGAINST THE OTHER.

{¶ 23} Appellant argues the trial court erred in admitting Raphael's inculpatory hearsay statements to the police into evidence. As stated above, neither appellant nor Raphael testified at their joint trial. However, their statements to the police were admitted without objection during the testimony of the various law enforcement officers. Appellant asserts that the trial court's admission of Raphael's statements prejudiced him and violated his Sixth Amendment right to confront witnesses against him pursuant to Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and its progeny.

{¶ 24} Appellant's failure to object waives all but plain error. See State v. Slagle , 65 Ohio St.3d 597, 605 N.E.2d 916 (1992). Plain error does not exist unless the error is obvious and but for the error, the outcome of the case would have been different. State v. Alhashimi , 12th Dist. Warren Nos. CA2016-07-065 and CA2017-07-066, 2017-Ohio-7658, 2017 WL 4119269, ¶ 44. Notice of plain error is taken with the utmost caution and only under exceptional circumstances to prevent a manifest miscarriage of justice. Id.

{¶ 25} The Confrontation Clause prohibits the admission or use of testimonial statements of a witness who does not appear at trial unless that witness is unavailable to testify, and the defendant has had a prior opportunity for cross-examination. Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). However, the Sixth Amendment right to confrontation may only be invoked under situations where hearsay is offered into evidence. Id. at 60, fn. 9, 124 S.Ct. 1354 (the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted). Thus, the statements must be hearsay to trigger the Bruton rule. State v. Brown , 11th Dist. Lake No. 2012-L-007, 2013-Ohio-1099, 988 N.E.2d 924, ¶ 50 ; State v. Cassano , 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, 2012 WL 3860656, ¶ 30.

{¶ 26} In Bruton , the United States Supreme Court held that in a joint jury trial of two defendants, a defendant's Sixth Amendment right to confrontation is violated when the confession of a non-testifying co-defendant is admitted at their joint trial, even when the trial court carefully instructed the jury that the confession could only be admitted against that co-defendant. Bruton , 391 U.S. at 126, 137, 88 S.Ct. 1620. The rationale of Bruton was that a co-defendant's confession that incriminates a defendant is so "inevitably suspect" and "devastating" that the ordinarily sound assumption that a jury will be able to faithfully follow its instructions could not be applied. Id. at 136, 88 S.Ct. 1620. Hence, the Supreme Court held it could not accept limiting jury instructions as an adequate substitute for a defendant's constitutional right of cross-examination in the context of a joint jury trial where a co-defendant does not testify and thus cannot be tested by cross-examination. Id. at 137, 88 S.Ct. 1620.

{¶ 27} The Ohio Supreme Court expanded the Bruton rule to exclude not only confessions to the police but also a co-defendant's statements to a prosecution witness. State v. Moritz , 63 Ohio St.2d 150, 154, 407 N.E.2d 1268 (1980). The supreme court further applied the Bruton rule "with equal force to all statements that tend significantly to incriminate a co-defendant, whether or not he is actually named in the statement. * * * Just as one can be convicted on circumstantial evidence, one can be circumstantially accused." Id. at 155, 407 N.E.2d 1268. Nevertheless, the supreme court held that a mere finding of a violation of the Bruton rule during a trial does not automatically require a reversal of the defendant's conviction if properly admitted evidence of guilt is overwhelming, and the prejudicial effect of the admission of the co-defendant's statement is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the co-defendant's statement was harmless error. Id. at 156, 407 N.E.2d 1268.

{¶ 28} Subsequently, the United States Supreme Court took a different posture when it addressed whether the admission of a co-defendant's redacted confession at a joint jury trial violated the Confrontation Clause. Richardson v. Marsh , 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) ; In re Watson , 47 Ohio St.3d 86, 91, 548 N.E.2d 210 (1989). In Richardson , the co-defendant's confession was redacted to omit any reference to the defendant and any reference that anyone other than the co-defendant and another individual were involved in the crimes. The co-defendant's confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial through the defendant's own testimony.

{¶ 29} The Supreme Court held that "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Richardson at 211, 107 S.Ct. 1702. Nevertheless, the Supreme Court remanded the case because "the prosecutor sought to undo the effect of the limiting instruction by urging the jury to use [the co-defendant's] confession in evaluating [the defendant's] case." Id.

{¶ 30} After Richardson , the Ohio Supreme Court revisited the issue in the context of a juvenile delinquency case in Watson , 47 Ohio St.3d 86, 548 N.E.2d 210. Unlike Bruton , Moritz , and Richardson , Watson involved a joint bench trial. The supreme court held that

The Confrontation Clauses of Section 10, Article I of the Ohio Constitution and the Sixth Amendment to the United States Constitution are not violated by the admission of a nontestifying co-defendant's confession, where the confession is redacted to eliminate not only the defendant's name, but also any reference to his or her existence. ( Richardson v. Marsh [ (1987) ], 481 U.S. 200 [107 S.Ct. 1702, 95 L.Ed.2d 176], approved and followed.)

Watson at paragraph two of the syllabus.

{¶ 31} The supreme court further held that Watson differed from Bruton in two important respects:

First, because the co-defendants' confessions were redacted there was little risk of applying one co-defendant's confession against the others. Also, this case was tried before the trial judge; therefore, the risk that the jury would not follow the court's instructions was not present. Furthermore, we have noted that the trial court can be presumed to apply the law correctly, and there is no reason to believe otherwise in this case. Therefore, we conclude that the trial court did not err in overruling appellants' motions for separate trials and in receiving into evidence the confession of each co-defendant.

(Citations omitted.) Id. at 91, 548 N.E.2d 210.

{¶ 32} Trial testimony shows that in response to the various law enforcement officers' questions, appellant told them that he and Raphael had grown up together, Raphael lived in New York but had returned to Cincinnati several months ago, and the two of them drove to Columbus where they spent a couple of hours before returning to Cincinnati. Appellant further told the officers he was moving his late aunt's furniture and antiques to Cincinnati. When asked by Detective Schweitzer what kind of antiques they were, appellant did not respond. When asked twice by Deputy Grossenbaugh whether there were drugs in the Pacifica, appellant first denied there were any drugs in the vehicle, then later replied, "nothing that he knew of."

{¶ 33} Trial testimony further shows that in response to the officers' questions, Raphael told them he was from New York, and that he and appellant had met through some mutual friends a few months ago. Raphael further told the officers that appellant picked him up in Cincinnati and that they drove to Columbus where they either "hung out" at a friend's house or visited some of appellant's relatives for a few hours. Raphael told the officers that upon leaving Columbus, he could not sleep in the back of the Pacifica as the vehicle was full and that appellant told him the packages were his late aunt's furniture which he was taking to Atlanta. Raphael consistently denied that anything in the vehicle was his and denied he knew anything about the marijuana. When Officer Dunham told him there were about 425 pounds of marijuana in the back of the Pacifica, Raphael replied he had not handled any marijuana.

{¶ 34} Appellant asserts that his right of confrontation was violated when the trial court admitted Raphael's hearsay statements which "directly implicat[ed] [appellant], compared to the generalities attributed from [appellant]," by describing appellant's "contact with the loaded contraband to support [appellant's] knowledge of what it was."

{¶ 35} We note at the outset that appellant does not specifically identify Raphael's alleged inculpatory hearsay statements, and instead merely directs us to two pages of the trial transcript which pertain to Officer Dunham's testimony. Nor does appellant specifically state how Raphael's statements directly incriminated him. As we have stated before, it is not this court's duty to "root out" or develop an argument that can support an assigned error, even if one exists. See Lebanon v. Ballinger , 12th Dist. Warren No. CA2014-08-107, 2015-Ohio-3522, 2015 WL 5097123.

{¶ 36} "Hearsay" is a statement, other than one made by the declarant while testifying at trial or a hearing, offered into evidence to prove the truth of the matter asserted. Evid.R. 801(C). We are not persuaded that Raphael's statements to the police are hearsay, that is, that they were offered to prove the truth of the facts asserted by Raphael. To the contrary, the state offered Raphael's statements because they were not true and to inferentially suggest that appellant and Raphael were attempting to conceal criminal activity. Thus, Raphael's statements were offered not to prove the truth of what Raphael was asserting, but simply to establish what was said. Accordingly, his statements were non-hearsay and do not implicate Bruton and its progeny. See Cassano , 2012-Ohio-4047, 2012 WL 3860656.

{¶ 37} Even assuming Raphael's statements were hearsay, we find that they do not come within the ambit of Bruton and its progeny. Raphael's statements were not facially incriminating and did not "tend significantly to incriminate" appellant under Bruton and Moritz as both men told the officers the same general story about appellant moving his late aunt's furniture, and both denied knowing about the marijuana in the back of the Pacifica. See In re C.M. , 8th Dist. Cuyahoga No. 99599, 2013-Ohio-5426, 2013 WL 6571840 (no violation of right of confrontation where the co-defendant's statements did not inculpate the defendant and were similar to the defendant's statement to the police). In addition, Raphael never told the police that appellant loaded the Pacifica himself. In fact, there is no evidence as to who loaded the vehicle.

{¶ 38} Richardson instructs us that even when the nontestifying co-defendant's statement is only inferentially incriminating, a limiting jury instruction will not cure a Confrontation Clause violation when there is some indication that the statement was relied upon in establishing the defendant's guilt. Even if Raphael's statements are inferentially incriminating pursuant to Richardson and Watson , by implying that it was appellant who loaded the vehicle, we find no plain error. This was a joint bench trial where the opportunity for prejudice to the defendants is severely limited and where the necessity of a limiting instruction is obviated. See State v. Merriweather , 8th Dist. Cuyahoga No. 58089, 1991 WL 41676 (Mar. 28, 1991). It is well-established that in a bench trial, a trial court is presumed to act properly in consideration of the evidence. State v. Eubank , 60 Ohio St.2d 183, 187, 398 N.E.2d 567 (1979). That is, a trial court is presumed to consider only the relevant, material, and competent evidence in arriving at a judgment, unless the contrary affirmatively appears from the record. Id. ; State v. Proffitt , 12th Dist. Butler Nos. CA2016-07-134 and CA2016-07-135, 2017-Ohio-1236, 2017 WL 1215275, ¶ 34, fn. 5. There is no indication that the trial court improperly considered Raphael's statements in convicting appellant of marijuana possession and permitting drug abuse. In fact, before the trial court rendered its verdict on January 13, 2017, the court specifically told the parties that in considering the evidence that was admitted in the case, it looked at each of their cases individually.

{¶ 39} We therefore find the trial court did not err in receiving into evidence Raphael's statements to the police, and the trial court's admission of Raphael's statements did not violate appellant's Sixth Amendment right to confront witnesses against him pursuant to Bruton and its progeny.

{¶ 40} Appellant's second assignment of error is overruled.

{¶ 41} Judgment affirmed.

S. POWELL, P.J., concurs.

PIPER, J., concurs separately.

PIPER, J., concurring separately.

{¶ 42} I concur with the judgment as expressed above, as well as the analysis, but have additional thoughts as to the second assignment of error.

{¶ 43} The statements of appellant and Raphael did not implicate either person in criminal activity. However, when law enforcement officers noted the inconsistencies in comparing their respective statements, suspicions were raised. In conducting initial traffic stops, inconsistent statements by the occupants can raise or escalate an officer's suspicions. State v. Brooks , 3d Dist. Hancock No. 5-11-11, 2012-Ohio-5235, 2012 WL 5507092, ¶ 28. Depending on what other factors are present, inconsistent statements can be associated with criminal activity. Id. at ¶ 38. Therefore, I conclude that the statements were not admitted to prove the truth of the matter asserted, but rather to explain why the officers had suspicions and continued their investigation in the manner in which they did.

{¶ 44} There was no objection at trial because the statements were only offered to explain the officers' conduct. Furthermore, there was a thread of consistency between the statements of appellant and Raphael. Arguably, some of Raphael's statements aided appellant by bolstering appellant's statements. This leads to my second point, which is appellant invited and induced any alleged error.

{¶ 45} Appellant waived time for his trial so that a bench trial could take place jointly with Raphael. It is evident appellant effectuated a joint trial. Furthermore, there was no objection to Raphael's statements coming into evidence at the trial. Parties cannot take advantage of an error they invited or induced. State v. Sowell , 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034. Even if the hearsay statements were considered as substantive evidence and admitted in error, such error is waived if invited or induced by the defendant. Even plain error is waived or forfeited when the error is invited or induced by the defendant. Berry v. Paint Valley Supply, L.L.C. , 4th Dist. Highland No. 16CA19, 2017-Ohio-4254, 2017 WL 2544796, citing State v. Rohrbaugh , 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920.

{¶ 46} Here, appellant knew of Raphael's statements yet appellant took affirmative steps toward securing a joint trial. Additionally, appellant did not object to the statements coming into evidence because, to some degree, Raphael's statements corroborated appellant's statements. Appellant's trial strategy cannot now be used to his advantage on appeal.

{¶ 47} Appellant cannot make a strategical decision at trial regarding its underlying Bruton claim then complain on appeal that the result of that decision constitutes reversible error. State v. Jennings , 10th Dist. Franklin Nos. 09AP-70 and 09AP-75, 2009-Ohio-6840, 2009 WL 5062117, ¶ 76, citing United States v. Jernigan , 341 F.3d 1273 (11th Cir.2003). Granted, appellant's trial strategy would have been more evident had the trial court or prosecutor sought a waiver from trial counsel of any potential Bruton issues. Nevertheless, the record clearly reflects a strategical decision to use both appellant's statements and Raphael's statements in an effort to advance appellant's claim of innocence without actually testifying and being subject to the prosecutor's cross-examination.

{¶ 48} In conclusion, I agree with the majority's analysis that the statements admitted did not implicate a Bruton violation and that no plain error occurred. Additionally, I find that even if a Bruton violation occurred, it was an error invited or induced by appellant and therefore forfeited upon appeal.

      At trial, Officer Dunham testified that while he was now a police officer for the Franklin Police Department, he was working as a detective for the Warren County Drug Task Force in February 2014. Officer Dunham interviewed Raphael at the Warren County Sheriff's Office on February 11, 2014.

      On those two pages, Officer Dunham testified that in response to his questions, Raphael told him he and appellant drove to Columbus where they stayed "one to one and a half hours," when they got back into the Pacifica in Columbus, Raphael could not get into the backseat because the back seat was full, and appellant told him it was furniture he was taking from Columbus to Atlanta.

      Just as a Bruton violation can be harless error, so too can it be invited. See State v. Edwards , 11th Dist. Lake No. 2012-L-034, 2013-Ohio-1290, 2013 WL 1294635, ¶ 39.


source: Caselaw Access Project

author: Myers, Judge.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellant, v. Tamar ACOFF, Defendant-Appellee.
    NOS. C-160867 C-160868
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: October 13, 2017
    Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Christopher Liu, Appellate Director, for Plaintiff-Appellant,
    Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos, Assistant Public Defender, for Defendant-Appellee.
    OPINION.
   Myers, Judge.

{¶ 1} The state of Ohio has appealed from the trial court's entries granting defendant-appellee Tamar Acoff's motion to suppress. Because Acoff's arrest was supported by probable cause, and because the search of the vehicle that Acoff was seated in when arrested was permissible under the automobile exception to the warrant requirement, we find that the trial court's granting of the motion to suppress was in error.

Factual Background

{¶ 2} Acoff was arrested for criminal trespass in the parking lot of a Shell gas station. Following his arrest, the vehicle that he had been seated in was searched, and a bottle of prescription drugs with the label removed and other unspecified drugs were found in the center console of the vehicle.

{¶ 3} Acoff was charged with criminal trespass in violation of R.C. 2911.21(A)(1) and possession of prescription drugs in violation of Cincinnati Municipal Code 601-23. He filed a motion to suppress all evidence seized following his arrest, arguing that it was the fruit of an unlawful arrest that had not been supported by probable cause.

{¶ 4} The following evidence was adduced at a hearing on Acoff's motion to suppress. Cincinnati Police Officer Zach Sterbling testified that, while on uniformed-foot patrol on June 28, 2016, he had entered the Shell gas station located on Harrison Avenue. Officer Sterbling had been aware that drug activity often took place in the general area of the gas station, and the station owner told him that several drug deals had taken place on the sides of the building that day. Officer Sterbling noticed Acoff sitting in the driver's seat of a vehicle parked on the side of the building. A no-loitering sign, approximately three feet by two feet in size, was on the outside wall of the station, directly across from the side of the vehicle and visible from the vehicle.

{¶ 5} Officer Sterbling noticed that Acoff remained inside the vehicle for approximately ten minutes without entering the gas station. So he asked the station owner if Acoff was an employee, or if the owner knew Acoff or knew of any reason for him to be there. When the owner responded "no" to his questions, Officer Sterbling approached both Acoff and his backseat passenger, Kijuane Jones. Acoff was leaning over the center console as he approached.

{¶ 6} Officer Sterbling asked Acoff and Jones what business they had on the property, and Acoff replied that they were "hanging out." Officer Sterbling then removed both men from the vehicle and placed them under arrest for criminal trespass. He explained that he had arrested them because they had admitted that they were "hanging out" in the parking lot, which was prohibited by the posted no-loitering sign. Both Acoff and Jones were searched immediately following their arrest. No contraband was found on Acoff, but heroin was found on Jones. Officer Sterbling then searched the vehicle and found a bottle of prescription drugs with the label removed and other unspecified drugs in the center console.

{¶ 7} Officer Sterbling conceded that he did not have a warrant to arrest Acoff, to search Acoff, or to search the vehicle. He further acknowledged that Acoff had not consented to a search of his person or the vehicle.

{¶ 8} The trial court granted Acoff's motion to suppress. It found that Acoff had a privilege to be in the parking lot, and that he had not lost that privilege. It further determined that Acoff's arrest for criminal trespass was not supported by probable cause and that there was no justification for Officer Sterbling to search the vehicle without a warrant.

{¶ 9} The state has appealed, arguing in one assignment of error that the trial court's granting of the motion to suppress was in error.

Standard of Review

{¶ 10} Our review of a trial court's ruling on a motion to suppress presents a mixed question of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We must accept the trial court's findings of fact if they are supported by competent and credible evidence, but we review de novo the application of the relevant law to those facts. Id.

Probable Cause to Arrest

{¶ 11} The state first argues that the trial court erred in finding that Acoff's arrest was not supported by probable cause. A warrantless arrest is supported by probable cause when "the arresting officer, at the time of the arrest, possess[es] sufficient information that would cause a reasonable and prudent person to believe that a criminal offense has been or is being committed." State v. Elmore , 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 39. A probable-cause determination is based on the totality of the circumstances. Id.

{¶ 12} The state contends that Officer Sterbling had probable cause to arrest Acoff for criminal trespass under R.C. 2911.21(A)(4), which provides that "[n]o person, without privilege to do so, shall * * * [b]eing on the land or premises of another, negligently fail or refuse to leave upon being notified by signage posted in a conspicuous place or otherwise being notified to do so by the owner or occupant, or the agent or servant of either."

{¶ 13} Following our review of the record, we find that, under the totality of the circumstances, Officer Sterbling had probable cause to believe that Acoff had committed the offense of criminal trespass. Officer Sterbling testified that he was aware that the gas station was located in a high-drug-activity area, and that several drug sales had taken place in the parking lot of the gas station earlier that day. He observed Acoff sitting in a parked car in the gas station's parking lot for ten minutes, next to a no-loitering sign, without patronizing the store. And he had been told by the station owner that Acoff was not an employee and that the owner was unaware of Acoff's purpose for being there. Further, when asked about his reason for being on the premises, Acoff told Officer Sterbling that he was "hanging out."

{¶ 14} Upon learning that Acoff had no legitimate purpose for being in the gas station's parking lot, Officer Sterbling had probable cause to arrest him for a violation of R.C. 2911.21(A)(4). At that point, not only had Acoff failed to patronize the business, but Officer Sterbling could reasonably infer from his statement that he had no intention of doing so.

{¶ 15} Acoff argues that he had a right to be in the parking lot because the gas station was open to the public for business, and that the no-loitering sign was insufficient to notify him that his right had been revoked. His argument ignores the plain language of R.C. 2911.21(A)(4), which provides in relevant part that a person shall not negligently fail or refuse to leave a premises after "being notified by signage posted in a conspicuous place." The statute clearly indicates that a sign may serve as notice that a person does not have the right to remain on a private property, and that notification from an owner or agent thereof is not the only way to communicate that a person no longer has such a right.

{¶ 16} Acoff initially had a privilege to be in the parking lot as a business invitee. A business invitee is a "business visitor, or one who rightfully comes upon the premises of another by invitation, express or implied, for some purpose that is beneficial to the owner." Estate of Sapp v. Helping Hands Household Sales, Inc. , 1st Dist. Hamilton No. C-030605, 2004-Ohio-3133, 2004 WL 1363445, ¶ 10, citing Gladon v. Greater Cleveland Regional Transit Auth. , 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996). A business invitee's rights are not absolute, but are limited by the scope of the owner's invitation. Estate of Sapp at ¶ 11. A person "has the status of an invitee only while he is on the part of the land to which his invitation extends-or in other words, the part of the land upon which the possessor gives him reason to believe that his presence is desired for the purpose for which he has come." Gladon at 315, 662 N.E.2d 287, quoting 2 Restatement of the Law 2d, Torts, Section 332, Comment l (1965).

{¶ 17} The record indicates that a no-loitering sign was conspicuously placed on a wall across from where Acoff was parked and was visible to him as he sat in the vehicle. This sign notified Acoff that his privilege to be on the gas-station property only extended to his patronage of the business, and not to remain on the property for his own purposes of "hanging out." That the sign read "no loitering," as opposed to "no trespassing," is of no consequence. The sign served the purpose of notifying Acoff that use of the property was limited to patronage of the business.

{¶ 18} We find that Officer Sterbling had probable cause to arrest Acoff for a violation of R.C. 2911.21(A)(4).

{¶ 19} The state further argues that Officer Sterbling had probable cause to arrest Acoff for the offense of loitering with the intention of committing unlawful drug transactions in violation of Cincinnati Municipal Code 910-21(b), which provides that "[i]t shall be unlawful for any person to loiter in a public place with the intention of engaging in unlawful drug-related activity." The ordinance provides that, under certain circumstances, a police officer may detain an individual to investigate whether the individual is in violation of the ordinance. See Cincinnati Municipal Code 910-21(c). Pursuant to Cincinnati Municipal Code 910-21(d), an officer may not detain a person for such an investigation unless two conditions are met. The first condition requires the person to have engaged in one or more of the following behaviors:

(A) The person passes or receives from passers-by, bystanders or persons in motor vehicles money, objects having characteristics consistent with controlled substances, and/or an envelope, bag or other container which could reasonably contain such objects or money.
(B) The person conceals or attempts to conceal an object having characteristics consistent with controlled substances and/or an envelope, bag or other container which could reasonably contain such objects.
(C) The person flees or obscures himself upon seeing law enforcement officers.
(D) The person communicates the fact that law enforcement officers are in the vicinity to another person in a manner which suggests that the communication is a warning.
(E) The officer observes the person in possession of any instrument or object which is customarily used in the sale, administration or use of controlled substances[.]

Cincinnati Municipal Code 910-21(d)(1).

{¶ 20} At the time that Officer Sterbling approached Acoff, he had knowledge that the area in which the gas station was located was known for drug activity and that several drug sales had taken place on the gas-station property that day. But he had no evidence that Acoff had engaged in any of the behaviors specified by Cincinnati Municipal Code 910-21(d)(1). So even if this ordinance applies to the private property upon which the gas station is located, we find that Officer Sterbling did not have sufficient information to believe that Acoff had committed a violation of Cincinnati Municipal Code 910-21(b), and consequently, that he lacked probable cause to arrest him for that offense.

Search of Vehicle

{¶ 21} The state further argues that the trial court erred in suppressing the search of the vehicle that Acoff had been seated in when arrested.

{¶ 22} Unreasonable searches and seizures are prohibited by the Fourth Amendment to the United States Constitution. Accord Ohio Constitution, Article I, Section 14. Unless a recognized exception applies, warrantless searches are per se unreasonable. See Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

{¶ 23} The state contends that the vehicle search was permissible under the automobile exception to the warrant requirement. Under the automobile exception, officers are permitted to "conduct a warrantless search of a lawfully stopped automobile if they have probable cause to believe that the vehicle contains contraband." State v. Jones , 1st Dist. Hamilton No. C-130069, 2014-Ohio-1201, 2014 WL 1337586, ¶ 6, citing United States v. Ross , 456 U.S. 798, 799, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). When an officer has probable cause to search an automobile, the officer may "conduct a warrantless search of every part of the vehicle and its contents, including all movable containers and packages that could contain the object of the search." In re L.S. , 1st Dist. Hamilton No. C-150526, 2016-Ohio-5582, 2016 WL 4586265, ¶ 19.

{¶ 24} The absence of a traffic stop does not prevent application of the automobile exception, as it does not detract from the automobile's inherent mobility or affect the officer's belief that the vehicle contains contraband. State v. Bazrawi , 10th Dist. Franklin No. 12AP-1043, 2013-Ohio-3015, 2013 WL 3497638, ¶ 27. See State v. Friedman , 194 Ohio App.3d 677, 2011-Ohio-2989, 957 N.E.2d 815, ¶ 11 (9th Dist.) (the warrantless search of a parked vehicle alerted on by a police drug dog was permissible under the automobile exception because "no meaningful distinction" exists between a search conducted pursuant to a traffic stop and the search of a locked car parked in a public area).

{¶ 25} During the search incident to arrest of Acoff and Jones, Officer Sterbling found heroin on Jones. We find that the presence of heroin on a passenger in the automobile, Officer Sterbling's knowledge that the gas station was located in an area known for drug activity, and his knowledge that several drug sales had taken place that day in the station's parking lot, provided probable cause for Officer Sterbling to believe that the vehicle, including the console, would contain drugs.

{¶ 26} Because the search of the vehicle was permissible under the automobile exception to the warrant requirement, we hold that the trial court erred by suppressing the evidence found during that search.

{¶ 27} In summary, because the arresting officer had probable cause to arrest Acoff for criminal trespass, and because the search of the vehicle that Acoff had been seated in was permitted under the automobile exception to the warrant requirement, we find that the trial court erred in granting Acoff's motion to suppress. The state's assignment of error is sustained. The judgments of the trial court are reversed, and the cause is remanded for further proceedings.

Judgments reversed and cause remanded.

Mock, P.J., and Cunningham, J., concur.


author: SEAN C. GALLAGHER, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Herman L. JENNINGS, Defendant-Appellant
    No. 104626
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: October 19, 2017
    John P. Parker, 988 East 185th Street, Cleveland, Ohio 44119, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Blaise D. Thomas, Assistant Prosecuting Attorney, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: S. Gallagher, J., Keough, A.J., and Stewart, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.:

{¶ 1} Herman Jennings appeals his convictions for murder, one count of aggravated robbery, and three counts of robbery, each with a repeat violent offender specification. We affirm.

{¶ 2} In December 2013, Jennings was named in a 16-count indictment charging him with aggravated murder, murder, two counts of kidnapping, two counts of aggravated robbery, four counts of robbery, two counts of felonious assault, two counts of theft, petty theft, and having weapons while under disability, along with the associated specifications, including one- and three-year firearm specifications, repeat violent offender specifications, and notice of prior conviction.

{¶ 3} The case proceeded to trial, and the jury heard evidence and testimony about a robbery gone wrong where Jennings's accomplice was shot and killed by the one of the victims. The two attackers, dressed in black with their hands and heads covered, attempted to rob two victims in the driveway of their house. As the victims sat in a vehicle about to leave, the driver-side door was opened by one of the assailants. One victim was dragged from the driver's seat and struck on the head with a metal object. During the attack, that victim was able to retrieve a legally possessed firearm from the driver-side door and shoot one of the masked assailants, later identified as Waymone Williams. Williams died from the wounds.

{¶ 4} Jennings ran after the other victim, who was trying to retreat into the house. Jennings grabbed the victim's purse, causing her to fall to the ground, and fled the scene with it. After securing the scene of the crime, the police discovered the stolen purse and its contents spread across the yard. Additionally, they discovered a black "doo-rag" and a pair of latex gloves. Each glove and the doo-rag contained DNA belonging to Jennings.

{¶ 5} The police also discovered a vehicle in the area that was titled to Williams's mother. The keys found on Williams's body belonged to the vehicle. Inside the vehicle was a cell phone, that also belonged to Williams's mother. According to the police, the last call made was approximately 90 minutes before the attack, the call being made to a contact named "HERM."

{¶ 6} The jury found Jennings not guilty of aggravated murder, two counts of felonious assault, and one count each of aggravated robbery, robbery, and having weapons while under disability. However, the jury found Jennings guilty of murder, one count of aggravated robbery, and three counts of robbery, each with the repeat violent offender specification.

{¶ 7} Jennings was sentenced to 15 years to life on the murder count. Two of the robbery counts merged with the aggravated robbery, with the state electing that he be sentenced on the aggravated robbery charge. The court imposed a ten-year sentence on the aggravated robbery count. The aggravated robbery and murder sentences were ordered to run concurrently. The court imposed a seven-year sentence on the remaining robbery charge, to be served consecutively to the murder and aggravated robbery counts, for a total of 22 years to life in prison.

{¶ 8} Jennings appeals, raising seven assignments of error.

{¶ 9} In Jennings's first assignment of error, he claims the trial court created a structural error by replacing a juror during deliberations, or in the alternative, that the court was required to conduct a hearing to ascertain the reason for the juror's disappearance. According to Jennings, the replaced juror refused to convict him and that was the reason for the juror's refusal to continue deliberations. He bases his argument on the fact that, at one point in the deliberations, the jury asked the trial court: "What happens if we're in disagreement about all of the counts, because we are in disagreement as to whether the defendant was even proven to be on the scene that night." The trial court answered tersely, with the consent of all parties, telling the jury to "keep deliberating." Jennings's argument is entirely based on federal law and mere speculation.

{¶ 10} Under Ohio law, "a trial judge is empowered to exercise 'sound discretion to remove a juror and replace him with an alternate juror whenever facts are presented which convince the trial judge that the juror's ability to perform his duty is impaired.' " State v. Brown , 2d Dist. Montgomery No. 24541, 2012-Ohio-1848, 2012 WL 1484202, ¶ 46, quoting State v. Hopkins , 27 Ohio App.3d 196, 198, 500 N.E.2d 323 (11th Dist.1985). (Other citations omitted.) " '[S]ound discretion has long meant a discretion that is not exercised arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result." Woodards v. Cardwell , 430 F.2d 978, 982 (6th Cir.1970).

{¶ 11} Crim.R. 24(G) and R.C. 2945.29 govern the removal and replacement of jurors during criminal trials. State v. Zaragoza , 2d Dist. Montgomery No. 26706, 2016-Ohio-144, 2016 WL 197102, ¶ 18, citing State v. Cunningham , 2d Dist. Clark No. 10-CA-57, 2012-Ohio-2794, 2012 WL 2366490, ¶ 45. R.C. 2945.29 permits a court to replace a juror with an alternate "[i]f, before the conclusion of the trial, a juror becomes sick, or for other reason is unable to perform his duty[.]" (Emphasis added.) "[T]he substitution of an alternate juror for a regular juror for reasonable cause is within the prerogatives of the trial court and does not require the consent of any party." State v. Gaines , 8th Dist. Cuyahoga No. 82301, 2003-Ohio-6855, 2003 WL 22966190, ¶ 38, citing United States v. Warren , 973 F.2d 1304, 1308-1309 (6th Cir.1992). Neither R.C. 2945.29 nor Crim.R. 24 requires the court to conduct a hearing to confirm the juror's inability to fulfill her service. Id. at ¶ 39.

{¶ 12} Crim.R. 24(G)(1) also allows the court to replace a juror after deliberations have begun. "If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew." Crim.R. 24(G)(1). " 'The purpose of such instruction is to negate any possibility of coercion or intimidation of the substitute juror.' " State v. Sales-Hilton , 9th Dist. Summit No. 26351, 2012-Ohio-5651, 2012 WL 6042611, ¶ 16, quoting State v. Elersic , 11th Dist. Lake Nos. 2000-L-062 and 2000-L-164, 2001 WL 1497192, citing State v. Miley , 77 Ohio App.3d 786, 791-793, 603 N.E.2d 1070 (12th Dist.1991). The trial court followed the procedure set forth in Crim.R. 24.

{¶ 13} Tellingly, Jennings's entire argument is based on the proposition of federal law that erroneously removing a juror is structural error that requires a new trial. In support, Jennings cites federal cases that interpret Fed.R.Crim.P. 23(b), for example, United States v. Curbelo , 343 F.3d 273, 278 (4th Cir.2003) ; United States v. Hernandez , 862 F.2d 17, 22 (2d Cir.1988) ; and United States v. Brown , 823 F.2d 591, 596 (D.C.Cir.1987). Fed.R.Crim.P. 23(b) deals with the removal of a juror and proceeding with an 11-juror panel, which has no corresponding state civil rule. Under Fed.R.Crim.P. 23(b), the court may only remove a juror in that instance for "good cause" because without that, structural error occurred. No such "good cause" requirement is required under Crim.R. 24(G)(1), the closest state analog that authorizes a court to remove and replace a juror after deliberations begin for any reason that precludes the juror from performing her obligations. Failing to return is a sufficient basis to remove a juror in Ohio. State v. Gleason , 65 Ohio App.3d 206, 210, 583 N.E.2d 975 (1st Dist.1989) (replacing a juror who failed to appear to avoid a delay in the proceedings is not an abuse of discretion); Sales-Hilton at ¶ 15 (court was left with "little choice" in replacing a juror with an alternate after juror refused to return to court). Jennings failed to support his argument with relevant authority as required under App.R. 16(A)(7). This alone is dispositive; any attempt on our part to reverse would require us to create and support arguments not advanced by Jennings.

{¶ 14} Even if we considered Jennings's arguments under Crim.R. 24(G)(1), we would have to resort to rank speculation because the record is silent as to the existence of a "holdout" juror or as to any conversations outside of the deliberative process that occurred between the jurors regarding the case-the juror being replaced contacted the court's bailiff and another juror to explain that she had work obligations precluding her from returning to deliberations. We must presume regularity, but Jennings insists that we presume irregularity. In other words, without supporting evidence in the record, Jennings would have us assume that the trial court abused its discretion in replacing a juror by failing to ensure the deliberations were not compromised based on his speculative misgivings that cannot be easily dispelled by the record. Jennings is flipping the standard on its head.

{¶ 15} Nothing in the record indicates that any one juror, much less the juror actually replaced, prevented the jury from reaching a decision. Although there were several questions asked, none indicated that the jury was actually deadlocked and unable to resolve the disagreement. See State v. Howard , 42 Ohio St.3d 18, 537 N.E.2d 188 (1989), paragraph two of the syllabus. Jennings's claim that the replaced juror was a holdout is mere speculation.

{¶ 16} Further, the reason for the juror's inability to complete her service was known: the replaced juror was unable to continue her service because of work responsibilities. The trial court, in exercising her sound discretion, accepted that excuse, noting that the jurors had been kept well beyond what was originally intended. The juror also contacted the court's bailiff, an officer of the court, reiterating what was already communicated to the other juror. Any delay associated with having the missing juror contacted a third time or issuing a bench warrant to be executed at her place of work to forcibly compel attendance could be considered impractical in light of the fact the panel had only deliberated for one day at that point.

{¶ 17} Most important, and contrary to Jennings's argument, jurors are not precluded from communicating with each other in general; they are only precluded from discussing the case outside the deliberation at the close of all evidence. As the trial court unambiguously instructed the jury in this case, "[m]ost important, ladies and gentlemen, you may not discuss the case among yourselves or with anyone else until all of the evidence has been presented and I've instructed you on the law and ordered you to begin your deliberations." Tr. 503:21-504:1. The fact that the jurors had a permissible conversation is not in and of itself error as Jennings suggests.

{¶ 18} To follow Jennings's logic, trial courts would have to conduct an inquisition into each and every conversation had by the jurors upon returning to court. Courts are not required to undergo such an inquiry. Jennings is asking us to presume that an irregularity occurred based on the fact of a permissible conversation having occurred-presumably encouraged by the state's improvident accusation that the jurors' conversation about attendance somehow violated the trial court's instruction not to discuss the case. The record indicates that the jurors' conversation about one having to return to work, did not violate the trial court's admonishment, which prohibited the jurors from discussing the guilt or innocence without all jurors present.

{¶ 19} Regardless, the black letter law in Ohio is unambiguous. A trial court does not abuse its discretion by replacing a juror who is unable to complete her service in order to avoid a delay in the trial process. Gleason , 65 Ohio App.3d 206, 210, 583 N.E.2d 975 ; Sales-Hilton , 9th Dist. Summit No. 26351, 2012-Ohio-5651, 2012 WL 6042611, ¶ 15. Further, there is no requirement under Crim.R. 24(G) for a trial court to conduct an evidentiary hearing to corroborate the juror's reason for not appearing or to investigate each and every conversation jurors have outside the courtroom. Gleason . Jennings has not cited a single Ohio case supporting his interpretation of Ohio law. Based on the arguments as presented and the law as it exists in Ohio, Jennings's first assignment of error is overruled.

{¶ 20} In his third assignment of error, Jennings claims that the death of the co-conspirator cannot be the basis of the felony murder. According to Jennings, the victim's first shot did not kill the attacker; it was the subsequent shots that did, and therefore the death was not proximately caused by the aggravated robbery. Although Jennings mentioned the manifest weight of the evidence standard of review, in light of the fact that Jennings is not challenging the credibility of the witnesses but instead is focusing on the elements of the offense, we construe this assignment of error as challenging the sufficiency of the evidence. A claim of insufficient evidence raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

{¶ 21} The felony murder statute provides that "[n]o person shall cause the death of another as a proximate result of the offender's" committing an offense of violence. R.C. 2903.02. "Proximate result" is defined as the direct, natural, reasonably foreseeable consequence of one's action when viewed "in the light of ordinary experience." State v. Gibson , 8th Dist. Cuyahoga No. 98725, 2013-Ohio-4372, 2013 WL 5517927, ¶ 35, quoting State v. Ervin , 8th Dist. Cuyahoga No. 87333, 2006-Ohio-4498, 2006 WL 2507563, and State v. Dixon , 2d Dist. Montgomery No. 18582, 2002 WL 191582.

{¶ 22} Jennings and his co-conspirator attempted to rob the victims while armed with a handgun.

The natural inclination of persons present during a robbery to forcibly defend themselves, their family and friends, and their property from theft and criminal aggression is a primal human instinct. Every robber or burglar knows when he attempts his crime that he is inviting dangerous resistance. Add to this highly charged atmosphere the use of a firearm to facilitate the robbery, and the risk of serious physical harm or death to any person present, be it the intended victims, bystanders, or the wrongdoers themselves, becomes highly foreseeable.

Dixon at 18 ; see also State v. Burt , 8th Dist. Cuyahoga No. 99097, 2013-Ohio-3525, 2013 WL 4137378, ¶ 25 (death would not have occurred but for defendant's acting in concert with the decedent in robbing the victim at gunpoint, who caused the death by defending himself). In this case, one of the victims shot Jennings's co-conspirator in self-defense. The co-conspirator's death was directly caused by the aggravated robbery in which Jennings willingly participated. Jennings's conviction was not against the sufficiency of the evidence.

{¶ 23} In his fourth assignment of error, in reliance on State v. Hood , 135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057, ¶ 21, Jennings claims that cell phone records, admitted as business records, were actually prepared in anticipation of litigation because the cell-phone company only releases the records upon receiving a court order and not all employees have access to the private information. According to Jennings, if a business record is prepared in anticipation of litigation, the hearsay exception under Evid.R. 803(6) no longer applies. Jennings's reliance on Hood is misplaced. In that case, the Ohio Supreme Court held, in the context of the Confrontation Clause, that

[e]ven when cell-phone companies, in response to a subpoena, prepare types of records that are not normally prepared for their customers, those records still contain information that cell-phone companies keep in the ordinary course of their business .

(Emphasis added.) Id. at ¶ 36, citing United States v. Yeley-Davis , 632 F.3d 673, 679 (10th Cir. 2011). Hood resolved the conflict between what is admissible in general versus that which is admissible under the Confrontation Clause. Hood is inapplicable to Jennings's argument. He is not claiming any Confrontation Clause violation, and he has not otherwise provided authority in support of a claimed error as required by App.R. 16(A)(7). The fourth assignment of error is overruled.

{¶ 24} In the fifth assignment of error, Jennings argues that the trial court erred in denying a challenge under Batson v. Kentucky , 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). "In Batson , the United States Supreme Court established a three-step inquiry for trial courts to adjudicate claims of race-based challenges to jurors." State v. Johnson , 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 21, citing Batson at 96, 106 S.Ct. 1712. The three steps are (1) "a defendant must make a prima facie case that the prosecutor is engaged in racial discrimination"; (2) "if the defendant satisfies that burden, the prosecutor must provide a racially neutral explanation for the challenge"; and (3) "the court must decide, based on all the circumstances, whether the defendant has proved purposeful racial discrimination." Id., citing Batson at 98, 106 S.Ct. 1712.

{¶ 25} In order to make a prima facie case of discrimination, the defendant must demonstrate that members of the defendant's race were "substantially underrepresented on the venire from which his jury was drawn," or that the jury venire was "selected under a practice providing the opportunity for discrimination." Batson at 95, 106 S.Ct. 1712.

{¶ 26} In this case, Jennings failed to make a prima facie case of discrimination. The record reflects that the prosecutor struck one juror of the same ethnicity as Jennings, but there is no record as to the racial composition of the venire. Without being able to make a prima facie case of racial discrimination, we need not consider the prosecutor's race-neutral explanation or the trial court's decision. Accordingly, Jennings's fifth assignment of error is overruled.

{¶ 27} In the sixth and seventh assignments of error, Jennings contends that the jury instruction on "confirmation bias" was inadequate, or in the alternative, that his trial counsel was ineffective for failing to seek an instruction on "confirmation bias" altogether. Jennings has provided no authority requiring or even permitting such an instruction. His citations and arguments only define how some experts interpret and apply "confirmation bias." App.R. 16(A)(7). Appellate courts are not required to construct arguments on behalf of either party. State v. Gordon , 2017-Ohio-7147, 95 N.E.3d 994, ¶ 43. We overrule both assignments of error.

{¶ 28} Finally, in the eighth assignment of error, Jennings claims that his conviction should be reversed because of cumulative error. Having found no error, harmless or otherwise, we overrule the eighth and final assignment of error.

{¶ 29} Jennings's convictions are affirmed.

MELODY J. STEWART, J., CONCURS;

KATHLEEN ANN KEOUGH, A.J., DISSENTS WITH SEPARATE DISSENTING OPINION

KATHLEEN ANN KEOUGH, A.J., DISSENTS WITH SEPARATE DISSENTING OPINION:

{¶ 30} I respectfully dissent. I would find merit in Jennings's first assignment of error, that the discharge of a juror during deliberations without legal justification and without a hearing violated Mr. Jennings's right to a fair trial under the Sixth and Fourteenth Amendments of the U.S. Constitution, the Ohio Constitution, and Crim.R. 24. The majority contends that Jennings's arguments on appeal are based entirely on speculation that Juror # 1 was a holdout and would have acquitted Jennings on all counts. Speculation exists, however, because the court did not conduct at the very least a minimum inquiry into Juror # 1's sudden unavailability or whether Juror # 1 could resume deliberations.

{¶ 31} To understand why a minimum inquiry should have been conducted, a more detailed context of the deliberation process in this case must be understood. The jury received the case to begin deliberations on Thursday, August 27, 2015. On Friday, August 28, 2015, the jury resumed deliberations. During the morning deliberations, the court was notified that the jury had three questions. After conferring with both parties, the court answered the questions as agreed. Later that morning, the jury again submitted three questions, which the court answered after meeting the parties.

{¶ 32} At 12:30 p.m., the jury again notified the court that it had questions, this time submitting five questions. The second question asked: "What happens if we're in disagreement about all of the counts, because we are in disagreement as to whether the defendant was even proven to be on the scene that night." (Tr. 1617.) The court met with the parties, and in response to the second question, the court instructed the jury to "keep deliberating." (Tr. 1618.) At the end of deliberations on Friday, the jury retired with instructions to return on Monday, August 31. The final instruction to the jury was:

And mostly, ladies and gentlemen, while you're on break, you cannot ring one another up and discuss it one on one. It's only when all twelve of you are together in that jury room that you can consider that you've been deliberating. Fair enough?

(Tr. 1620.) The jury responded affirmatively, and none of the jurors indicated to the court that they could not return on Monday.

{¶ 33} Nevertheless, on Monday, August 31, the court stated on the record that Juror # 1 called another juror and then contacted the court indicating "that she was starting work that day * * * and that she was getting a promotion and she was informed if she failed to show up, her job was in jeopardy." (Tr. 1621.)

{¶ 34} The court noted that the jury was from a pool that reported on Wednesday, August 19 and that their service would have terminated on August 26. The court stated, "I don't believe that any of us anticipated when this trial began that we would go into yet another week, so I do believe that the-it's a legitimate excuse and I'm comfortable in putting the first alternate in." (Tr. 1621-1622.) The state had no objection with replacing Juror # 1 with Alternate # 1, but noted that Juror # 1 violated the juror conduct rules by contacting another juror.

{¶ 35} The defense objected stating that Juror # 1 never indicated that a scheduling conflict could exist and that despite this conflict, she still needed to appear for deliberations. Additionally, the defense requested the court to conduct at the very least a minimal inquiry whether there was a basis independent of her job or whether some other factor was preventing her from being there. The defense suggested that it was possible based on a jury question submitted Friday, that there was a divide in the jury. Based on that question, the defense thought it was proper to inquire as to whether or not some sort of coercion or manipulation during deliberations may have been the cause for Juror # 1's absence.

We would like some minimum inquiry as to whether or not there's a basis independent of her job that is keeping her from being here, namely whether or not she was being bullied back there. If she was, that would be a basis for a mistrial.

(Tr. 1624.)

{¶ 36} The trial court noted Jennings's objection and replaced Juror # 1 with Alternate # 1. The court then instructed the existing jury to share the juror questions and court communications on those questions with Alternate # 1. The court also instructed the jury to start their deliberations anew.

{¶ 37} After Alternate # 1 was seated, the defense orally moved for a mistrial based on juror removal and the lack of judicial intervention to ensure that it was actually Juror # 1 who phoned into the court, and the juror's failure to appear was not a result of coercion during deliberations based on the juror questions. The defense also took issue with the fact that (1) the juror was not instructed to appear before the court despite the conflict; (2) the explanation about the juror's job was accepted without any further inquiry; and (3) the court had the authority to contact the juror's employer to explain the circumstances. The trial court summarily denied Jennings's motion.

{¶ 38} The relevant case law interpreting Crim.R. 24(G)(1), provides that the court must have a legitimate basis for the removal and replacement of an alternative. See United States v. Humphrey , 34 F.3d 551, 557 (7th Cir.1994) ; United States v. Warner , 498 F.3d 666 (7th Cir.2007). An abuse of discretion may be found " 'if the juror was discharged without factual support or for a legally irrelevant reason.' " Warner at 698, quoting United States v. Edwards , 303 F.3d 606, 631 (5th Cir.2002).

{¶ 39} Reviewing the relevant case law where a trial court's decision for removing a juror was upheld, the record was clear and established the basis and justification for removal. In those cases, an inquiry was made with the removed juror and other members of the jury.

{¶ 40} In State v. Cunningham , 2d Dist. Clark No. 10-CA-57, 2012-Ohio-2794, 2012 WL 2366490, the trial court was notified by the jury foreperson during deliberations that one of the jurors was struggling with comprehending the deliberation process. After conferencing with defense counsel, the prosecutor, the jury foreperson, and other members of the court staff, the court decided to remove the juror based on the juror's cognitive problems in comprehending the trial process concluding that there could not be a fair and impartial trial with the juror's continued presence. The Second District found no abuse of discretion in the juror's removal because the evidence presented to the trial court put the juror's ability to comprehend the trial process into question.

{¶ 41} In State v. Zaragoza , 2d Dist. Montgomery No. 26706, 2016-Ohio-144, 2016 WL 197102, the trial court removed a juror after interviewing the jury foreperson, the bailiff, and the removed juror, finding that the juror was unstable, disruptive to the deliberations, and was a safety threat to the female jurors. The Second District found no abuse of discretion by the trial court based on the well-developed record and that the court was able to personally observe and judge the removed juror's demeanor. The appellate court concluded that a fair trial with the continued juror's presence was an impossibility.

{¶ 42} In State v. Hunt , 10th Dist. Franklin No. 12AP-1037, 2013-Ohio-5326, 2013 WL 6406316, the Tenth District found no abuse of discretion in replacing a juror with an alternate after the juror asked to be replaced by the court because she was uncomfortable with evidence depicting dead bodies. The juror indicated that she would not be able to look at the evidence.

{¶ 43} In State v. Sales-Hilton , 9th Dist. Summit No. 26351, 2012-Ohio-5651, 2012 WL 6042611, the trial court replaced a juror with an alternate during deliberations after the juror confirmed with the judge that she would not return to jury service because her doctorate program was scheduled to begin. This scheduling conflict was known to the court during the voir dire process, yet the juror was empaneled. The Ninth District found no abuse of discretion in replacing the juror with an alternate because the juror's open refusal to return to court to continue deliberations "left the trial court with little choice but to replace [the juror] with an alternative" and the replacement was "an attempt to resolve the case in the most efficient manner." Id. at ¶ 15.

{¶ 44} In this case and unlike all of the cases cited above, no inquiry was made with the juror or remaining jurors prior to her removal. As the defense pointed out with the trial court,

[T]he fact that the juror was replaced willy-nilly, particularly on the heels of a question provided late last Friday, suggesting that some people-I believe it was said, what do we do if some of us don't even believe [Jennings] was there, suggest she could have potentially been within a group that was in the minority on the question and, you know, right now we don't have any way of knowing if her failure to show up this morning was a result of how she was treated during deliberations on Friday. It's all speculation, and without any input from her, you know, I think it was an error for the Court to simply remove her and replace her with an alternate and for that reason we request a mistrial.

(Tr. 1632.)

{¶ 45} I would find that the trial court at a minimum should have at least contacted Juror # 1 to ensure that the juror's reasoning was consistent with what was relayed to the court. Although neither R.C. 2945.29 nor Crim.R. 24 requires the court to conduct such inquiry with the juror, this minimal interaction would ensure that the jury deliberation process is free from manipulation and coercion. Additionally, jury service can sometimes be inconvenient, but there is a difference between being incapable to serve and inconvenient in serving. The court's justification for removal and replacement in this case may very well be a legitimate basis, however, on this record, I would find that the court abused its discretion by failing to ensure that the jury deliberation process was not compromised by any coercion or misconduct inside the jury room or outside the courthouse.

{¶ 46} Additionally and equally problematic, is the fact that after the trial court was made aware that Juror # 1 contacted another juror on the panel, no inquiry was made to ensure that the only discussions the two jurors had was about Juror # 1's decision not to return to jury service. Despite this contact, the trial court did not question the contacted juror, who remained on the panel to continue deliberations, to determine the nature of the conversation and the circumstances surrounding the contact.

{¶ 47} Based on this out-of-court contact, the sudden unavailability of Juror # 1, and the circumstances of the deliberations and questions raised on the prior day during deliberations, I find that it was unreasonable for the trial court to not conduct a minimal inquiry as to Juror # 1's unavailability prior to removal. I would reverse Jennings's conviction on this basis and remand for a new trial.

      Jennings originally assigned eight errors for review. Subsequent to filing his appellate brief and oral argument, Jennings moved to withdraw his second assignment of error. Under separate order, the motion was granted.

      Jennings also cites Sullivan v. Louisiana , 508 U.S. 275, 282, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), but Sullivan dealt with an erroneous jury instruction.

      Jennings cites State v. Mole , 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, in which it was held that R.C. 2907.03(A)(13) irrationally imposes strict liability on peace officers for certain sex offenses when there is no occupation-based relationship between the offender and the victim. It is unclear how Mole is relevant.

      Although the record seems to indicate that the court's bailiff received the communication from Juror # 1, it is unclear if the communication was by voicemail or if the bailiff actually spoke to the juror. At no time did the bailiff state on the record the nature or circumstances of the conversation.


author: SEAN C. GALLAGHER, J.: EILEEN T. GALLAGHER, J., CONCURRING:

text:
    Rodney PLOGGER Plaintiff-Appellant v. Justin MYERS Defendant-Appellee
    No. 105210
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: October 19, 2017
    Paul W. Flowers, Paul W. Flowers Co., L.P.A., Terminal Tower, Suite 1910, 50 Public Square, Cleveland, Ohio 44113, Michael D. Shroge, Plevin & Gallucci Co., L.P.A., 55 Public Square, Suite 2222, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT.
    Christopher Ankuda, Colin P. Moeller, Paul R. Morway, Ankuda, Stadler & Moeller, Ltd., 1100 Superior Avenue, Suite 1120, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLEE.
    BEFORE: S. Gallagher, J., McCormack, P.J., and E.T. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.:

{¶ 1} Plaintiff-appellant Rodney Plogger filed this appeal from the trial court's denial of a motion in limine that sought to preclude testimony allegedly protected by the attorney-client privilege. Because the trial court's ruling is not a final, appealable order, we must dismiss the appeal for lack of jurisdiction.

{¶ 2} On November 4, 2015, plaintiff filed a personal injury action claiming that he had been seriously injured in an automobile accident that was alleged to have been negligently caused by defendant-appellee Justin Myers. During plaintiff's deposition, his counsel objected to questioning about who had referred plaintiff to his treating physician on the basis of attorney-client privilege. After contacting the court during the deposition, the parties were informed that the questions should be answered. However, the deposition was concluded without the disputed questions being answered.

{¶ 3} Plaintiff proceeded to file a motion in limine, seeking to preclude defendant's counsel from asking any questions or attempting to elicit any answers in this context, and asserting the information is protected by the attorney-client privilege. The trial court denied the motion. The trial court determined that the questioning asked "about a fact" as opposed to the details of a conversation between plaintiff and his attorney, and was not protected by the attorney-client privilege. The court further found that "the answer is relevant to the issue of potential bias and credibility of the treating physician."

{¶ 4} Plaintiff-appellant appealed the trial court's ruling, claiming the trial court erred in its determination regarding the attorney-client privilege.

{¶ 5} As an initial matter, we recognize that this appeal was taken from a ruling on a motion in limine. The parties dispute whether this court has jurisdiction over the appeal and have fully briefed the issue.

{¶ 6} An appellate court has no jurisdiction in the absence of a final, appealable order. Lycan v. Cleveland , 146 Ohio St.3d 29, 2016-Ohio-422, 51 N.E.3d 593, ¶ 21. A ruling on a motion in limine is a " 'tentative, preliminary or presumptive ruling about an evidentiary issue that is anticipated' " and is not subject to appellate review " 'unless the claimed error is preserved by an objection, proffer, or ruling on the record when the issue is actually reached and the context is developed at trial.' " State v. Grubb , 28 Ohio St.3d 199, 203, 503 N.E.2d 142 (1986), quoting Palmer, Ohio Rules of Evidence Rules Manual , at 446 (1984). See also State v. Brown , 38 Ohio St.3d 305, 311-312, 528 N.E.2d 523 (1988) ; Gable v. Gates Mills , 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 34.

{¶ 7} We recognize that the Ohio Supreme Court has held that "a discovery order that is alleged to breach the confidentiality guaranteed by the attorney-client privilege satisfies R.C. 2505.02(B)(4)(b) and is a final, appealable order that is potentially subject to immediate review." Burnham v. Cleveland Clinic , 151 Ohio St.3d 356, 2016-Ohio-8000, 89 N.E.3d 536, ¶ 2. Unlike Burnham , there is no discovery order mandating the production of allegedly privileged material in this matter.

{¶ 8} The record reflects that the court had instructed the parties during the deposition that the disputed questions should be answered. Although appellant argues that the answer to who had referred plaintiff to his treating physician is protected by the attorney-client privilege, the question was never answered. A motion in limine was then filed that sought to preclude testimony in this regard, on the basis of the attorney-client privilege.

{¶ 9} The attorney-client privilege is the oldest of the confidential communication privileges known in the common law. Upjohn Co. v. United States , 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The primary purpose of the attorney-client privilege is to "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Id. The attorney-client privilege does not prevent disclosure of the underlying fact; it only protects disclosure of the communications. Id. at 395, 101 S.Ct. 677. "In Ohio, the attorney-client privilege is governed both by statute, R.C. 2317.02(A), which provides a testimonial privilege, and by common law, which broadly protects against any dissemination of information obtained in the confidential attorney-client relationship." State ex rel. Dawson v. Bloom-Carroll Local School Dist. , 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, ¶ 27, citing State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth. , 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 24.

{¶ 10} Appellee argues that the attorney's act of referring a client to a treating physician is an underlying fact, not a communication. Appellee cites to no Ohio case directly on point. Appellant argues that an attorney's recommendation to his client that he seek care from a particular doctor is a "communication" that is protected by the attorney-client privilege. Appellant cites to a Florida decision that determined: "The question does not elicit the underlying fact of whether she saw a particular physician, but rather elicits whether she saw the physician at her attorney's request" and thereby "seeks discovery of confidential communications constituting her attorney's advice regarding [the] lawsuit." Burt v. Govt. Emps. Ins. Co. , 603 So.2d 125, 125-126 (Fla.App.1992).

{¶ 11} However, because the trial court's ruling was on a motion in limine, it has yet to make a final determination on the issue. Thus, we make no determination as to the attorney-client privilege issue raised.

{¶ 12} Even in the context of privilege, the Ohio Supreme Court has found that the denial of a motion in limine raising privilege grounds does not preserve a claimed error for review without a proper objection being raised at trial. State v. Hancock , 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 59. Likewise, a majority of appellate courts that have considered the issue have found that even when alleged privileged communications are at issue, a ruling on a motion in limine is not a final order. See Henderson v. Henderson , 150 Ohio App.3d 339, 2002-Ohio-6496, 780 N.E.2d 1072, ¶ 10 (10th Dist.), citing In re Isaacs , 2d Dist. Montgomery No. 18104, 2000 WL 1072333, 1-2, 4 (July 31, 2000) (granting of motion in limine preventing admission of allegedly privileged documents would not be a final order subject to review); In re Neyland , 6th Dist. Lucas No. L-91-271, 1992 WL 158949, 3 (July 10, 1992) (denial of motion in limine regarding allegedly privileged testimony not reviewable by appeals court absent objection raised at trial); State v. Well , 1st Dist. Hamilton No. C-940307, 1994 WL 721901, 1-2 (Dec. 21, 1994). Accord State v. Conley , 8th Dist. Cuyahoga No. 69597, 1996 WL 476438, 4-5 (Aug. 22, 1996) (a party may not rest on in limine ruling as to privilege issue, and must raise its objection anew when the issue is again raised at trial); State v. Cherukuri , 79 Ohio App.3d 228, 232-233, 607 N.E.2d 56 (11th Dist.1992) (claim of physician-patient privilege raised in limine as to admission of emergency room nurses' testimony not subject to review when not preserved by objection at trial); see also Liebe v. Admin. , 8th Dist. Cuyahoga No. 100230, 2014-Ohio-1834, 2014 WL 1775905 (finding an order denying a motion in limine to exclude work product from trial was not a final, appealable order). In light of these decisions, we are not inclined to follow Akron v. Carter , 190 Ohio App.3d 420, 2010-Ohio-5462, 942 N.E.2d 409 (9th Dist.), wherein the court determined that a ruling on a motion in limine relating to privileged mediation communications was a definitive ruling that constituted a final, appealable order. Id. at ¶ 8-12.

{¶ 13} Accordingly, we find the order appealed is not a final, appealable order and that we lack jurisdiction to review the matter.

{¶ 14} Appeal dismissed.

TIM McCORMACK, P.J., CONCURS;

EILEEN T. GALLAGHER, J., CONCURS WITH SEPARATE CONCURRING OPINION

EILEEN T. GALLAGHER, J., CONCURRING:

{¶ 15} I concur with the majority's conclusion that the trial court's motion in limine ruling does not constitute a final determination on the issue of attorney-client privilege, and therefore, is not a final, appealable order. As referenced by the majority, this court has held that

"the granting or denial of a motion in limine is a tentative, interlocutory, precautionary ruling reflecting the trial court's anticipatory treatment of an evidentiary issue which the trial court may change at trial when the disputed evidence appears in context." State v. Taylor , 8th Dist. Cuyahoga No. 83778, 2004-Ohio-3115 [2004 WL 1352837], ¶ 6, citing State v. Grubb , 28 Ohio St.3d 199, 201, 28 Ohio B. 285, 503 N.E.2d 142 (1986). "A preliminary ruling has no effect until it is acted upon at trial" and, hence is not a final, appealable order. State v. Kulasa , 10th Dist. Franklin No. 11AP-826, 2012-Ohio-6021 [2012 WL 6648294], ¶ 20.

Liebe v. Admin. , 8th Dist. Cuyahoga No. 100230, 2014-Ohio-1834, 2014 WL 1775905, ¶ 9.

{¶ 16} However, I write separately to express my belief that there is no practical distinction made between an order compelling discovery of allegedly privileged information and a judgment denying a motion in limine that sought to preclude opposing counsel from eliciting allegedly privileged information. See Burnham v. Cleveland Clinic , 151 Ohio St.3d 356, 2016-Ohio-8000, 89 N.E.3d 536, ¶ 21 (finding that an order that compels "the production of privileged or protected materials certainly satisfies R.C. 2505.02(B)(4)(a) because it would be impossible to later obtain a judgment denying the motion to compel disclosure if the party has already disclosed the materials."). In my view, both judgments ultimately lead to situations R.C. 2505.02(B)(4)(b) seeks to prevent.

{¶ 17} In this case, the trial court's journal entry denying appellant's motion in limine clearly sets forth the court's position that the challenged question does not implicate the protections of attorney-client privilege, "as it is asking about a fact, not the details of a conversation between plaintiff and his attorney." Given the language used in the trial court's entry, I believe it would be disingenuous to suggest that the court's denial of appellant's motion in limine was not a final determination on the issue. Thus, once the challenged question is posed at trial, and counsel's objection on grounds of privilege is inevitably overruled, appellant is going to be compelled to provide an answer that may disclose information that is alleged to be protected by attorney-client privilege.

{¶ 18} Practically, this gives me pause, particularly where, as here, the privilege arguments that will be raised in the direct appeal following a trial will be identical to the arguments currently before this court. For this reason, I believe this court has the ability, at this time, to answer the issue raised on appeal: Did defense counsel's question regarding who referred appellant to his treating physician require appellant to disclose information that is protected by attorney-client privilege? Without additional information, we can determine whether the subject question addressed in the motion in limine requires a disclosure of fact or "seeks discovery of confidential communications constituting [his] attorney's advice regarding the lawsuit" as appellant suggests. Dismissal of this appeal merely delays review of this issue for another day.

{¶ 19} With that said, however, I am bound to follow the precedent of this court. Accordingly, I concur with the majority's dismissal.

      Similarly, another court has stated:
      That the plaintiff was treated by a particular doctor is an underlying fact. That the plaintiff received a referral to see a particular doctor is also an underlying fact. However, whether the plaintiff's attorney requested that the client see a certain doctor requires the plaintiff to disclose a part of a communication that was held between the plaintiff and attorney, and we resist any attempts to separate the contents of communications to distinguish "facts" from privileged information. To hold otherwise would severely undermine the purpose of the privilege, which is to encourage the free flow of information between attorneys and their clients.
      Worley v. Cent. Florida Young Men's Christian Assn. , Fla. S.Ct. No. SC15-1086, 228 So.3d 18, 2017 WL 1366126, 2017 Fla. LEXIS 812 (Apr. 13, 2017).