text:
    In the MATTER OF: B.W.
    NO. 17 MA 0071
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: December 21, 2017
    Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman St., 6th Floor, Youngstown, Ohio 44503, For Plaintiff-Appellant.
    Atty. Rhonda G. Santha, 6401 State Route 534, West Farmington, Ohio 44491, For Defendant-Appellee.
   JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl L. Waite

OPINION

ROBB, P.J.

{¶ 1} The State of Ohio appeals the decision of the Mahoning County Common Pleas Court, Juvenile Division, dismissing the murder complaint filed against Juvenile-Appellee B.W. As he was 16 years old, Appellee was subject to mandatory transfer to the general division if the juvenile court found probable cause to believe he committed the offense. The probable cause hearing was held jointly with the co-defendant. The juvenile court found the state failed to establish probable cause to believe Appellee committed murder. In evaluating probable cause in the case against Appellee, the juvenile court refused to consider the detective's testimony on what the co-defendant told him and the co-defendant's video statement. For the following reasons, we conclude the state presented sufficient credible evidence of probable cause. The juvenile court's judgment dismissing the complaint is reversed, and the case is remanded with instructions to issue a mandatory transfer order.

STATEMENT OF THE CASE

{¶ 2} On July 31, 2015, a delinquency complaint was filed in juvenile court against Appellee alleging he purposely caused the death of Jarell Brown on July 26, 2015, which constitutes the offense of murder in violation of R.C. 2903.02. A firearm specification was attached to the charge. As the charge was murder and Appellee was sixteen at the time of the offense, he was subject to mandatory transfer to the general division of the common pleas court if there was probable cause to believe he committed the act charged. In accordance, the state filed a motion to relinquish jurisdiction asking the court to conduct a transfer hearing. The probable cause hearing commenced on various dates due to a witness's failure to appear and refusal to testify, even after a material witness warrant was issued and immunity was granted. The hearings proceeded jointly with co-defendant J.J. who was also charged with murder for the victim's death. J.J. was fourteen years old on the day of the offense.

{¶ 3} The medical examiner testified he observed the body of the eighteen-year-old victim at the scene. The body was lying in a puddle of water on Indianola Avenue approximately 100 yards west of Market Street. (Tr. 10). The victim suffered a single gunshot wound ; the bullet entered the victim's upper back and exited his neck. (Tr. 11). The shot was not fired by a shotgun or an assault rifle. (Tr. 22). The medical examiner opined the victim could have been able to run for up to "a minute or so" upon suffering the wound, after which he would have been incapacitated until he died three to four minutes later. (Tr. 19-20).

{¶ 4} Detective Spotleson testified the victim's body was found on the side of the road at 27 West Indianola Avenue in front of a fabrication business. (Tr. 52, 58). A man driving down the road saw the body and called the police. (Tr. 52). Firemen from the nearby fire station walked to the scene to report they heard three shots just before the police dispatch. (Tr. 53). Upon noticing undisturbed gravel near the body, the detective concluded the victim had not been thrown from a vehicle. (Tr. 52). The victim's brother told the detective the victim would have been carrying money and a 9mm firearm. (Tr. 54). The police found $30 in the victim's wallet but recovered no gun from the scene. (Tr. 55).

{¶ 5} The detective explained how he discovered where to look for video evidence showing the victim's movements. A witness reported he saw three males enter a beverage store on Market Street and then saw them walk a few blocks north to Hylda Avenue. One of the three individuals was wearing a red sweatshirt, which was the color of the sweatshirt the victim was wearing. (Tr. 55-56). This witness heard what he perceived as fireworks and soon noticed police at the scene on Indianola.

{¶ 6} The detective retraced the reported path and collected videos along the way, which established his timeline. (St. Ex. 4). He created photographic still shots from the videos. (St. Ex. 5-15). A 9:50 p.m. video from the front of a jewelry store facing Market Street showed a person (said to be Appellee) walking south on Market Street; he was wearing dark pants, a white t-shirt, and white shoes. (St. Ex. 5). A 9:56 p.m. video from the same business showed two people (said to be J.J. and the victim) walking south on Market Street: one was wearing dark shorts or pants, a long-sleeved red shirt or jacket, and white shoes; and one was wearing white shorts, a dark long-sleeved shirt or jacket, and white shoes. (St. Ex. 6).

{¶ 7} A video from a beverage store further south on Market Street showed Appellee, J.J., and the victim entering the store together and buying items. Appellee purchased a drink and the victim purchased cigar products. (St. Ex. 4, 10:02-10:04 p.m., Chan. 1,4). A 10:02 p.m. still shot from this video showed J.J. and the victim entering the business. (St. Ex. 7-8); (Tr. 61-62). A 10:03 p.m. still shot showed Appellee with the victim and J.J. during the purchase of the products. (St. Ex. 9-11); (Tr. 63). The three individuals were clearly portrayed in this evidence, and juvenile officers were able to provide the detective with their names. (Tr. 70-71). The detective identified Appellee and J.J. in court. (Tr. 71). The beverage store video showed: Appellee wearing dark pants or jeans, a white T-shirt, and white shoes; J.J. wearing white shorts, a dark sweatshirt, and white shoes; and the victim wearing a red sweatshirt, dark shorts, and white shoes. (St. Ex. 9-11). Their attire matched that worn by the individuals walking in the direction of the beverage store in the minutes-earlier jewelry store video.

{¶ 8} At 10:08 p.m., the video from the front of the jewelry store showed three individuals walking north on Market Street (from the direction of the beverage store). (St. Ex. 12); (Tr. 65). The attire of these individuals matched that worn by Appellee, J.J., and the victim five minutes earlier. A 10:09 p.m. video from the side of the jewelry store showed the three individuals had turned left off of Market Street and onto West Hylda Avenue. (St. Ex. 13); (Tr. 65-66). In this video, the back of the heads and hair of the individuals can be seen in addition to the clothing (for purposes of comparison with the beverage store video). The victim was walking in front with Appellee and J.J. following him. Just prior to walking out of camera range, the three individuals moved from the sidewalk to the street as if starting to cross West Hylda Avenue. (St. Ex. 13-14); (Tr. 66-67).

{¶ 9} Crossing West Hylda Avenue from their position one would encounter an alley connecting West Hylda to Indianola Avenue. The alley runs along the side of the fabrication business, and it outlets where the victim's body was found. (Tr. 66-67). In this alley, the detective found a 9mm shell casing. (Tr. 56). Near the shell casing, the detective found a cigar and cigar wrappers, whose serial numbers matched those sold to the victim at the beverage store. (Tr. 56-57, 119). The beverage store tracked the sale of the products on the cash register and found it matched the time on the video showing Appellee, J.J., and the victim at the cash register. (Tr. 57).

{¶ 10} A video was also recovered from the fabrication business showing a male who "appears to be the victim" running down the alley toward Indianola. (St. Ex. 15); (Tr. 57, 68). The timestamp on the video was 10:08 p.m., but the detective ascertained the clock on that camera was set seven or eight minutes behind, meaning it portrayed the victim running at 10:15 or 10:16 p.m. (Tr. 68-69). In concluding this portrayed the last moments of the victim's life, the detective noted the police were called and officers arrived within minutes of the shooting. (Tr. 112, 128). The evidence suggested to the detective that Appellee and J.J. were with the victim in the alley in the minutes before his death.

{¶ 11} The detective also testified about his interview of J.J. occurring on August 4, 2015, which was preserved on video. (St. Ex. 2-3). J.J. was read his rights and signed a Miranda rights form. (St. Ex. 16). The detective testified J.J. said he, the victim, and Appellee went to a friend's house on Princeton Avenue but this friend asked them to leave because he had issues with the victim; this friend was the material witness who refused to testify. (Tr. 76-77). J.J. initially told the detective the victim left the house in a blue car. (Tr. 77). When the detective mentioned he saw J.J. with the victim in a video from the beverage store, J.J. changed the story to say: a car pulled up after they left the store; the victim said he was going to rob the "weed man"; the victim produced a gun but was shot in the back of the head by the car's passenger; and the victim ran one way while J.J. ran the opposite way. (Tr. 78).

{¶ 12} The detective told J.J. there was no car in the jewelry store's video, and J.J. then declared: he, Appellee, and the victim left the store, walked north on Market Street to Hylda, and turned into the alley; Appellee relieved himself in the alley; the victim handed his gun to Appellee so the victim could roll a joint; Appellee told J.J. he was going to shoot the victim because he was a snitch; Appellee walked up behind the victim and fired the gun at him; J.J. believed the shot hit the victim in the head; Appellee tried to shoot the victim again but the gun did not fire; Appellee pulled J.J. by the back of the shirt, and they ran south down the alley back toward Hylda; the victim ran north up the alley toward Indianola; and they eventually went back to their friend's house, where Appellee brandished a 9mm and bragged about shooting the victim. (Tr. 79-81). J.J. made all three statements within the first 30 minutes of his interview, repeating the final story after a break. (St. Ex. 2).

{¶ 13} There was no objection to this testimony as it was presented. The final day of the probable cause hearing was held on March 15, 2017, nearly a year after this testimony. When a request for a continuance was denied, the state rested pending admission of its exhibits. At this point, Appellee objected to the exhibits containing J.J.'s statement and the signed Miranda rights form. (Tr. 212). It was argued J.J.'s statements, although admissible against J.J. as his own statements, were not admissible against Appellee. (Tr. 212-213). The state disagreed, and the court held a discussion off the record.

{¶ 14} The juvenile court thereafter sustained Appellee's objection so J.J.'s statement would not be considered as evidence of probable cause in the case against Appellee but would be considered in the case against J.J. (Tr. 215-217). In closing, Appellee's attorney argued that, without the statements of J.J. or the friend previously held as a material witness, there was no evidence Appellee committed murder.

{¶ 15} The juvenile court agreed and dismissed the charge against Appellee. The court said the dismissal was without prejudice as the complaint could be refiled if the state found more evidence or secured the testimony of the missing witness. (Tr. 233). In a March 16, 2017 judgment entry, the juvenile court memorialized its decision to dismiss the complaint without prejudice and found "the State failed to carry its burden of proof and did not establish probable cause to believe that the Subject Child committed an act that would be a felony, if committed by an adult." The state filed a timely notice of appeal from the dismissal of the complaint, and briefing was completed on October 20, 2017.

{¶ 16} In reviewing appealability, the state cites R.C. 2945.67(A), which provides: "A prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case, or any decision of a juvenile court in a delinquency case, which decision grants a motion to dismiss all or any part of an indictment, complaint, or information * * *." The state may appeal as a matter of right from the dismissal of an indictment regardless of whether the dismissal is with or without prejudice. State v. Craig , 116 Ohio St.3d 135, 2007-Ohio-5752, 876 N.E.2d 957, ¶ 16. "[T]he order of a juvenile court denying a motion for mandatory bindover bars the state from prosecuting a juvenile offender as an adult for a criminal offense. It therefore is the functional equivalent of a dismissal of a criminal indictment and constitutes a final order from which the state may appeal as a matter of right." In re A.J.S. , 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 1. See also In re S.J. , 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 12-13 (juvenile court's sua sponte dismissal of one murder charge and amendment of another to voluntary manslaughter, after finding a lack of probable cause for murder, was equivalent to granting a motion to dismiss under R.C. 2945.67(A) from which the state could appeal as of right). Here, Appellee moved the juvenile court to dismiss the case against him at the probable cause hearing. (Tr. 226). The court found the state failed to present evidence of probable cause and dismissed the complaint, making the decision appealable by the state as a matter of right under R.C. 2945.67(A).

GENERAL LAW ON PROBABLE CAUSE HEARING FOR BINDOVER

{¶ 17} Juv.R. 30(B) provides: "Mandatory Transfer. In any proceeding in which transfer of a case for criminal prosecution is required by statute upon a finding of probable cause, the order of transfer shall be entered upon a finding of probable cause." The pertinent portion of the statute provides a juvenile court "shall transfer" a case after a complaint is filed alleging the child committed murder if the child was sixteen or seventeen years of age at the time of the act charged "and there is probable cause to believe that the child committed the act charged." R.C. 2152.12(A)(1)(a)(i). The hearing held upon a request for mandatory transfer of a juvenile has been called a mandatory bindover hearing, a mandatory transfer hearing, a probable cause hearing, and a preliminary hearing. Juv.R. 30(A) provides: "Preliminary Hearing. In any proceeding where the court considers the transfer of a case for criminal prosecution, the court shall hold a preliminary hearing to determine if there is probable cause to believe that the child committed the act alleged and that the act would be an offense if committed by an adult."

{¶ 18} At this preliminary hearing, the juvenile court's function is not to determine whether the juvenile is guilty of the charge but is to determine whether there is probable cause to believe the juvenile is guilty. State v. Iacona , 93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001). A probable cause hearing held before a juvenile court's transfer to adult court is a preliminary, non-adjudicatory proceeding as it does not determine whether the juvenile was delinquent. See, e.g. , Breed v. Jones , 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), fn. 18 (a simple hearing to determine if there is probable cause for the offense charged in order to transfer a juvenile to another court to be tried as an adult is not an adjudication; if the bindover hearing required proof of guilt, it would be adjudicatory and further criminal proceedings could not thereafter occur due to double jeopardy); State v. Carmichael , 35 Ohio St.2d 1, 7-8, 298 N.E.2d 568 (1973) (amenability decision where hearing proceeded simultaneously with probable cause hearing in a pre-rules case).

{¶ 19} In general, a preliminary hearing prevents the continued detention of a person when there is no evidence of his connection to an offense; the purpose "is not to hear all the evidence and determine the guilt or innocence of the accused but rather to determine whether sufficient evidence exists to warrant binding the accused over to the grand jury, where, after a more thorough investigation of the evidence, it is then determined whether a formal charge shall be made against the accused." State v. Minamyer , 12 Ohio St.2d 67, 69, 232 N.E.2d 401 (1967). Likewise, "a mandatory-bindover hearing in the juvenile court is ancillary to grand jury proceedings and to adult criminal prosecution." A.J.S. , 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629 at ¶ 23.

{¶ 20} To establish probable cause, the state has the burden to provide "sufficient credible evidence" on the elements to warrant going forward with the charge. A.J.S. , 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629 at ¶ 46, 52 ; Iacona , 93 Ohio St.3d at 93, 752 N.E.2d 937. The state must produce evidence that raises "more than a mere suspicion of guilt" but need not produce evidence proving guilt beyond a reasonable doubt. A.J.S. , 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629 at ¶ 41, quoting Iacona , 93 Ohio St.3d at 93, 752 N.E.2d 937. Underlying "all the definitions" of probable cause is "a reasonable ground for belief of guilt." Brinegar v. United States , 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). "[A]s the very name implies, we deal with probabilities." Id. at 174-175, 69 S.Ct. 1302. Probable cause is a flexible concept grounded in fair probabilities which can be gleaned from considering the totality of the circumstances. See Iacona , 93 Ohio St.3d at 93, 752 N.E.2d 937. See also Texas v. Brown , 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (probable cause is a flexible, common-sense standard which does not demand any showing that the belief is correct or more likely true than false).

{¶ 21} There is a mixed standard of review applied to a juvenile court's probable cause determination at a mandatory transfer proceeding. A.J.S. , 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629 at ¶ 51. In general, a reviewing court defers to a trial court's factual determinations on credibility and in doing so applies an abuse of discretion standard of review. Id. at ¶ 1, 51. Nevertheless, the evidence presented at the probable cause hearing "does not have to be unassailable" to qualify as credible. Id. at ¶ 46 ; Iacona , 93 Ohio St.3d at 93, 752 N.E.2d 937. Although the juvenile court can evaluate the quality of evidence presented in support of probable cause, the juvenile court "is not permitted to exceed the limited scope of the bindover hearing or to assume the role of the ultimate fact-finder." A.J.S. , 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629 at ¶ 43-44. "Obviously, the state has no burden to disprove alternate theories of the case at a bindover proceeding." Id. at ¶ 61. "Determination of the merits of the competing prosecution and defense theories, both of which [are] credible, ultimately [is] a matter for the factfinder at trial. " (Emphasis original.) Id. at ¶ 43, quoting Iacona , 93 Ohio St.3d at 96, 752 N.E.2d 937.

{¶ 22} Furthermore, the sufficiency of the evidence, presented by the state at the preliminary hearing held prior to a juvenile transfer, involves a legal question to be independently reviewed with no deference given to the decision of the juvenile court. Id. at ¶ 47, 51, citing, e.g. , State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). "[W]hether the state has produced sufficient evidence to support a finding of probable cause in a mandatory-bindover proceeding is a question of law, and we review questions of law de novo." Id. at ¶ 47.

{¶ 23} In A.J.S. , the state appealed the juvenile court's denial of mandatory transfer in an attempted murder case. As the juvenile court made no factual findings in its entry denying mandatory transfer, the Supreme Court considered the court's statements on the record. Id. at ¶ 56. In finding the juvenile court was required to transfer the case, the Supreme Court pointed to three errors. First, the juvenile court abused its discretion in failing to consider all the evidence presented by the state at the probable cause hearing. Id. at ¶ 57, 59 (the court could not recall testimony on the location of each person when the juvenile began shooting). Second, the juvenile court "exceeded the scope of its review of the evidence when it weighed the conflicting evidence regarding the trajectory of the bullets * * *." Id. at ¶ 60. Third, the juvenile court improperly raised the burden by observing the state failed to "make the case if it's possible or not" the bullets ricocheted (where a friend testified the juvenile only fired at the ground). Id. at ¶ 6, 60-62.

{¶ 24} The Supreme Court reviewed the transcript and found sufficient evidence of probable cause, noting: "It is true that some of the evidence could support a determination that A.J.S. fired his gun into the ground to scare the victims, rather than firing with the purpose to kill them." Id. at ¶ 63-64. However, "the resolution of conflicting theories of evidence, both of which are credible, is a matter for the trier of fact at a trial on the merits of the case, not a matter for the exercise of judicial discretion at a bindover hearing in the juvenile court." (Emphasis added.) Id. at ¶ 64. Upon affirming the appellate court's decision reversing the juvenile court, the Supreme Court remanded to the juvenile court with instructions to transfer the case to the general division of the common pleas court. Id. at ¶ 65.

ASSIGNMENT OF ERROR

{¶ 25} The state's assignment of error provides:

"THE JUVENILE COURT ERRED WHEN IT CONCLUDED THAT THE STATE FAILED TO PRESENT SUFFICIENT CREDIBLE EVIDENCE TO DEMONSTRATE PROBABLE CAUSE TO BELIEVE THAT [B.W.] PURPOSELY CAUSED OR AIDED ANOTHER IN CAUSING THE DEATH OF JARELL BROWN."

{¶ 26} The state suggests the juvenile court improperly assumed the role of the ultimate fact-finder or determined the merits of competing credible theories which task is reserved for the jury (or the judge in a bench trial) at the trial stage of the proceedings. In underscoring the limited scope of the juvenile court's function at the mandatory bindover hearing, the state emphasizes how it is merely required to set forth sufficient credible evidence showing there is probable cause supporting the elements of the pertinent offense. Appellee was charged with murder under R.C. 2903.02(A), which has the elements of purposely causing the death of another.

{¶ 27} The state emphasizes the important role of circumstantial evidence and reasonable inferences in an ultimate trial, let alone at a probable cause hearing. Intent can be ascertained from the surrounding facts and circumstances, and circumstantial evidence inherently has the same probative value as direct evidence.

State v. Treesh , 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). "A firearm is an inherently dangerous instrumentality, the use of which is likely to produce death, and a jury could reasonably infer from all testimony presented that a defendant formed the specific intent necessary to commit murder." State v. Carter , 2017-Ohio-7501, 96 N.E.3d 1046, ¶ 99.

{¶ 28} The state also points to the law on complicity. Pursuant to R.C. 2923.03(F), a person who is complicit in the commission of an offense can be prosecuted and punished as if he were a principal offender, and complicity need not be charged in the indictment but can merely be stated in terms of the principal offense. State v. Hand , 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 181. A juvenile who was 16 (or 17) at the time of the offense is subject to mandatory bindover if there is probable cause to believe he committed murder personally or through complicity. Goins v. Wellington , 7th Dist. Nos. 01 CA 208, 01 CA 210, 2001 WL 1647232 (Dec. 18, 2001), citing Agee v. Russell , 92 Ohio St.3d 540, 546-548, 751 N.E.2d 1043 (2001).

{¶ 29} The state reviews the evidence obtained from the various video surveillance systems and the detective's testimony about how he constructed the timeline. Appellee and J.J. were with the victim who was buying cigars in a store within minutes of the shooting. They left the store together and walked in the direction of the alley. Appellee and J.J. walked behind the victim as they approached the location of the alley. A video shows them leaving the sidewalk as if to cross the street to the side where the alley was located. According to a reasonable construction of the evidence, a gun was fired at the victim in the alley. A 9mm shell casing was found in the alley near a cigar and cigar wrappers with serial numbers showing they were purchased at the store at the time the three were in the store. The victim usually carried a 9mm firearm, but no firearm was recovered from the scene. The victim was shot from behind with a handgun; the bullet entered his upper back and exited his neck.

{¶ 30} The medical examiner opined the victim could have run for a minute after suffering the wound. A video shows a person, whom the detective concluded was the victim, running down the alley alone toward the street where his body was found. This was minutes after the victim stepped off the sidewalk with Appellee and J.J. on Hylda Avenue across from the opening of the alley. A passing motorist saw the victim's body in the road soon after the firing of shots which were heard by others in the area, including the firemen at the nearby fire station. The motorist, rather than the victim's companions, called 911.

{¶ 31} Appellee contends the timeline may not be as compact as the detective suggests, noting the detective thought he was called to the scene around 11:00 p.m. Appellee believes it was significant the firemen reported hearing three shots but only one 9mm casing was found in the alley. At the hearing, the defense theorized a car may have been waiting on West Hylda Avenue just outside the camera's range and focused on whether the detective could disprove someone else, such as the material witness, was waiting for the victim with a gun just outside the range of the video. (Tr. 123). Appellee concludes the prosecution failed to demonstrate a car or unidentified person was not present at the scene. As the state points out, it did not have a burden to disprove alternate theories of the case argued by the defense or otherwise implied by the evidence. A.J.S. , 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629 at ¶ 61. When presented with alternate credible theories of the case at the bindover hearing, a juvenile court is not permitted to choose a theory; this is the function of the jury at trial (or judge at a bench trial). Id. at ¶ 43, 64 ; Iacona , 93 Ohio St.3d at 96, 752 N.E.2d 937.

{¶ 32} The evidence demonstrates more than a fair probability the victim entered the alley. The defense urged, however, there was no (admitted) evidence showing Appellee entered the alley. In reviewing the sufficiency of the evidence establishing probable cause, the state asserts this court should also consider the detective's testimony as to what J.J. told him. J.J. relayed three stories, which changed as the detective revealed more information gleaned from the videos: (1) he was at Eldridge's house with the victim and Appellee, Eldridge asked them to leave due to an issue with the victim, and the victim left in a blue car; (2) the victim pulled out his gun to rob the "weed man" who pulled up in a blue car, but the car's passenger shot the victim in the back of the head; and (3) Appellee shot the victim in the back of the head with the victim's gun after recalling the victim snitched on them (and the injured victim ran toward Indianola). Appellee suggests the trial court could find these statements lacked any indicia of reliability.

{¶ 33} In evaluating the quality of the evidence presented by the state to show probable cause, a juvenile court is prohibited from exceeding "the limited scope of the bindover hearing" and is barred from "assum[ing] the role of the ultimate fact-finder." A.J.S. , 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629 at ¶ 43-44. At this preliminary stage, the state was not required to prove the truth of the claims. See id. at ¶ 51 (the state merely had the burden to show probable cause, not to prove Appellee's guilt). The evidence presented by the detective, including the statement he collected from J.J., provided a reasonable ground for believing Appellee was involved in the murder. In other words, if J.J.'s statement is part of the equation, probable cause was clearly established.

{¶ 34} However, it appears the juvenile court refused to consider any evidence about J.J. speaking to the detective in the case against Appellee and only considered it to find probable cause in the case against J.J., which was heard jointly with Appellee's case. The state contends the juvenile court erred in disregarding relevant and admissible evidence of probable cause such as the statement made by J.J. to the detective. The state asserts it is well-settled that hearsay may form the basis for the finding of probable cause, citing cases allowing hearsay when determining probable cause for searches. See, e.g. , United States v. Ventresca , 380 U.S. 102, 107-108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (probable cause for a warrant can be based on evidence that would qualify as hearsay if presented in a criminal trial).

{¶ 35} The juvenile court's decision to exclude J.J.'s statement appears to be based on a finding it was prohibited hearsay under the confrontation clause and evidentiary rules. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C). "A statement is not hearsay if it is admitted to prove that the declarant made it, rather than to prove the truth of its contents." State v. Williams , 38 Ohio St.3d 346, 348, 528 N.E.2d 910, 924 (1988), fn. 4 (a statement "which would otherwise be considered hearsay" may be admitted to show the effect on the hearer). Similarly, even in a trial where the confrontation clause clearly applies to out-of-court testimonial statements, the confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Crawford v. Washington , 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), fn. 9, citing Tennessee v. Street , 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985).

{¶ 36} The fact J.J. told the officer three different stories was not offered to prove the truth of the matter asserted by the declarant. Moreover, the three stories contained incompatible content, and thus could not all have been offered to prove the truth of the matter asserted by the declarant. As to the final story incriminating Appellee as the shooter, there is a suggestion the juvenile court pre-judged admissibility issues that may or may not arise at trial. For instance, the "Former Testimony" hearsay exception provides: "Testimony given at a preliminary hearing must satisfy the right to confrontation and exhibit indicia of reliability." Evid.R. 804(B)(1). This is the rule for ascertaining whether prior preliminary hearing testimony can be used in the actual trial. Additionally, there is a theory that merely because a statement would qualify as hearsay if presented at a later criminal trial does not necessarily make it hearsay for purposes of a probable cause hearing. See State v. Miles , 5th Dist. No. 3341, 1988 WL 70508 (June 28, 1988) ("The testimony was admitted to show the existence of probable cause and not to show the truth of the matters asserted. In short, the use of the testimony was not a hearsay use."). See also In re D.S. , 1st Dist. No. C-130094, 2013-Ohio-4565, 2013 WL 5656126, ¶ 8 (in reversing the juvenile court's dismissal, the First District found probable cause by using a police officer's testimony as to what the co-defendant told the officer). Even if considered hearsay, the statement is not barred unless the confrontation clause or the evidentiary rules apply to exclude it.

{¶ 37} The federal confrontation clause provides: "In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him." Sixth Amendment, U.S. Constitution. The corresponding state confrontation clause provides no greater rights. State v. Arnold , 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 12. Referring specifically to a trial, the Ohio Constitution at Article I, Section 10 provides: "In any trial, in any court, the party accused shall be allowed * * * to meet the witnesses face to face * * *." The right to confrontation through the presentation of a certain quality of evidence is generally considered a "trial right." See, e.g. , Barber v. Page , 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968).

{¶ 38} "As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness." (Emphasis added.) Bullcoming v. New Mexico , 564 U.S. 647, 657, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). The United States Supreme Court "has repeatedly declined to require the use of adversarial procedures to make probable cause determinations." Kaley v. United States , 571 U.S. 320, 134 S.Ct. 1090, 1103, 188 L.Ed.2d 46 (2014). See also Brinegar v. United States , 338 U.S. 160, 174-175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (admitting hearsay at a suppression hearing to ascertain the constitutionality of a vehicle search and thereafter excluding it at trial was not inconsistent or improper but "illustrate[s] the difference in standards and latitude allowed in passing upon the distinct issues of probable cause and guilt").

{¶ 39} The Ohio Supreme Court held the constitutional right to confront one's accusers "relates to the actual trial for the commission of the offense and not to the preliminary examination * * *." Henderson v. Maxwell , 176 Ohio St. 187, 188, 198 N.E.2d 456 (1964). Where newer case law is a by-product of the confrontation clause, it only applies if the confrontation clause applies. State v. Carter , 2017-Ohio-7501, 96 N.E.3d 1046, ¶ 39 (if the confrontation clause does not apply, then Bruton does not apply), as to Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (confrontation violation when a codefendant's testimonial confession incriminating the defendant is introduced at a joint trial).

{¶ 40} Federal circuit courts have concluded the standards for admissibility of evidence at a preliminary hearing are not governed by the Sixth Amendment's confrontation clause. Peterson v. California , 604 F.3d 1166, 1170 (9th Cir.2010) ; United States v. Andrus , 775 F.2d 825, 836 (7th Cir.1985) ; United States v. Harris , 458 F.2d 670, 677-678 (5th Cir.1972). See also United States v. Kin-Hong , 110 F.3d 103, 120 (1st Cir.1997) ("In probable cause hearings under American law, the evidence taken need not meet the standards for admissibility at trial" as a "preliminary hearing is not a minitrial of the issue of guilt").

{¶ 41} We do not believe the juvenile court (at a probable cause hearing held prior to transferring a juvenile to the general division) was bound by confrontation clause standards for admissibility of evidence. We now review the questions of state law. Specifically, whether rules of evidence apply at the juvenile probable cause hearing and if so whether a hearsay exception would permit the statement's introduction at the probable cause hearing.

{¶ 42} Initially, we note a criminal rule states the preliminary hearing in a felony case against a defendant "shall be conducted under the rules of evidence prevailing in criminal trials generally." Crim.R. 5(B)(1)-(2). This is a departure from the rules governing federal procedure in preliminary hearings; the evidentiary rules are expressly inapplicable to preliminary examinations in federal criminal cases, except as to privilege. See Fed.Evid.R. 1101(d)(3). See also Staff Note to former Fed.R.Crim.P. 5.1(a) (since the rules of evidence are explicitly inapplicable to preliminary hearings, Crim.R. 5.1 need no longer specifically explain, "probable cause may be based upon hearsay evidence in whole or in part").

{¶ 43} Pursuant to Crim.R. 1(C)(5), the Ohio Criminal Rules, "to the extent that specific procedure is provided by other rules of the Supreme Court or to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure * * * in juvenile proceedings against a child * * *." Various provisions in Crim.R. 5(B) would not apply to juvenile proceedings. For instance, Crim.R 5(B) requires bindover to the common pleas court if there is probable cause to believe the defendant committed the crime charged or any other felony; however the juvenile statute does not permit bindover directly after the preliminary hearing unless there is probable cause of an offense specifically listed in the statute. See R.C. 2152.12(A). In addition, Crim.R. 5(B) provides for bindover of related misdemeanors (except minor misdemeanors) accompanying the felony, which is at odds with R.C. 2151.52(F). Also, the state can take the case to the grand jury (where the rules of evidence are inapplicable) after a trial judge finds insufficient probable cause, but a juvenile court's finding cannot be similarly avoided as a juvenile court must find probable cause in order to relinquish jurisdiction. See R.C. 2152.12.

{¶ 44} The Juvenile Rules "prescribe the procedure to be followed in all juvenile courts of this state in all proceedings coming within the jurisdiction of such courts" (with listed exceptions). Juv.R. 1(A). The juvenile rule providing for a pre-transfer preliminary hearing, Juv.R. 30(A), does not contain Crim.R. 5(B)(2)'s incorporation of the evidentiary rules.

{¶ 45} We turn to the Ohio Rules of Evidence, which "govern proceedings in the courts of this state, subject to the exceptions stated in division (C) of this rule." Evid.R. 101(A). Some exceptions include grand jury proceedings and special statutory proceedings of a non-adversary nature in which these rules would by their nature be clearly inapplicable. Another exception reads: "Miscellaneous Criminal Proceedings. Proceedings for extradition or rendition of fugitives; sentencing; granting or revoking probation; proceedings with respect to community control sanctions; issuance of warrants for arrest, criminal summonses and search warrants; and proceedings with respect to release on bail or otherwise." Evid.R. 101(C)(3). This list of excluded miscellaneous criminal proceedings does not contain preliminary hearings (as does the aforementioned federal counterpart), so as not to contradict Crim.R. 5(B)(2) (which states the rules of evidence applicable to criminal trials shall be applied to the preliminary hearing in a felony case).

{¶ 46} Evid.R. 101(C) also provides the Rules of Evidence do not apply in "[p]roceedings in which other rules prescribed by the Supreme Court govern matters relating to evidence." Evid.R. 101(C)(6). For instance, a juvenile court at a dispositional hearing "may admit evidence that is material and relevant, including, but not limited to, hearsay, opinion, and documentary evidence." Juv.R. 34(B)(2) (with the exception of permanent custody). The Ninth District equated the amenability hearing (held after the probable cause hearing in a discretionary bindover) with a dispositional hearing and admitted hearsay under Juv.R. 34. State v. Williams , 9th Dist. No. 91CA005054, 1991 WL 231496 (Nov. 6, 1991).

{¶ 47} Moreover, the stated purpose of the evidentiary rules is to provide procedures for the adjudication of causes. Evid.R. 102. As set forth above, a simple hearing to determine if there is probable cause for the offense charged in order to transfer a juvenile to the general division of the common pleas court to be tried as an adult is not an adjudication. Breed , 421 U.S. 519, 95 S.Ct. 1779 at fn. 18 (if the bindover hearing required proof of guilt, it would be adjudicatory and further criminal proceedings could not occur due to double jeopardy). See also Carmichael , 35 Ohio St.2d at 7-8, 298 N.E.2d 568 (amenability hearing, held with probable cause hearing, was not adjudicatory; so hearsay was admissible in a pre-rule case); In re A.M. , 139 Ohio App.3d 303, 308, 743 N.E.2d 937 (8th Dist.2000) ("The introduction of evidence of probable cause to believe the juvenile committed the alleged offense does not transform a probable cause hearing into an adjudicatory proceeding."); State v. Whisenant , 127 Ohio App.3d 75, 85, 711 N.E.2d 1016 (11th Dist.1998) ("because the bindover proceeding is not adjudicative (the juvenile's guilt or innocence is not at issue), statutory and constitutional questions concerning the admissibility of evidence are premature and need not be addressed").

{¶ 48} Accordingly, we conclude the Ohio Rules of Evidence do not apply in a juvenile mandatory bindover proceeding. Therefore, the juvenile court should have considered J.J.'s statements to the detective in determining whether there was probable cause to bind Appellee over.

{¶ 49} Even if the final portion of J.J.'s statement was considered hearsay and the evidentiary rules are applied, there are hearsay exceptions. See Evid.R. 802 (hearsay is not admissible except as otherwise provided by federal or state constitutions or state law). The statement against interest exception was discussed by the parties below concerning the statement of the material witness, and the court suggested J.J.'s statement could not be used to corroborate this statement. The hearsay exception, for use when the declarant is unavailable, provides: "A statement that was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true." Evid.R. 804(B)(3). "A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the truthworthiness of the statement." Id.

{¶ 50} We refer back to another exception to the evidentiary rules contained in Evid.R. 101(C)(1), which states the evidentiary rules do not apply to "[d]eterminations prerequisite to rulings on the admissibility of evidence when the issue is to be determined by the court under Evid.R. 104." Likewise, Evid.R. 104(A) provides: "Preliminary questions concerning * * * the admissibility of evidence shall be determined by the court * * * In making its determination it is not bound by the rules of evidence except those with respect to privileges." This is part of the reason why "the Rules of Evidence do not apply to suppression hearings." See State v. Boczar , 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 17. Additionally, in showing evidence is admissible under a hearsay exception, the state can rely on evidence that may be considered hearsay at trial. See, e.g. , Bourjaily v. United States , 483 U.S. 171, 178, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (court may consider hearsay in making factual determinations prerequisite to a hearsay exception). Thus, two allegedly inadmissible statements can corroborate each other so as to indicate truthworthiness under Evid.R. 804(B)(3).

{¶ 51} Besides the fact that two alleged hearsay statements corroborated each other, the evidence collected by the detective also provided corroboration for J.J.'s final story. Any finding to the contrary was wholly unreasonable at the probable cause hearing. In any event, the juvenile court's decision appears to have been based on a belief the confrontation clause prohibits a co-defendant's testimonial statement to a detective to be admitted at a preliminary juvenile transfer hearing. We do not believe there is such a prohibition.

{¶ 52} Considering the totality of the circumstances, we conclude there was sufficient, credible evidence demonstrating probable cause in this case. Viewing the evidence presented at the probable cause hearing and all rational inferences in the light most favorable to the state, a rational person could conclude there were reasonable grounds for believing Appellee committed murder, i.e., there was a "fair probability" Appellee was culpably involved in the murder. When a reviewing court reverses a juvenile court's finding of no probable cause and finds sufficient probable cause in a mandatory transfer case, a proper remedy is to reverse and remand with instructions to enter a mandatory transfer order. See A.J.S. , 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629 at ¶ 65.

{¶ 53} Accordingly, the juvenile court's judgment of dismissal is reversed, and the case is remanded with instructions to enter an order of mandatory transfer.

Donofrio, J., concurs in judgment only; see concurring in judgment only opinion.

Waite, J., concurs.

DONOFRIO, J. concurs in judgment only with concurring opinion.

{¶ 54} I respectfully concur in judgment only with the majority's judgment that the judgment of dismissal is reversed and the case is remanded with instructions to enter an order of mandatory transfer. I write separately, however, because once the conclusions are reached that the Ohio Rules of Evidence do not apply at a juvenile mandatory bindover hearing and that the juvenile court is not bound by confrontation clause standards at a juvenile mandatory bindover hearing, there is no need for further analysis in this case.

{¶ 55} At paragraph 41, the majority asks the question whether the Ohio Rules of Evidence apply at juvenile mandatory bindover hearings. They conclude that, in fact, the rules of evidence do not apply at juvenile mandatory bindover hearings. I agree with this determination based on the majority's reasoning in paragraphs 42 through 47. I further agree with the majority's analysis of the confrontation clause in paragraphs 37 through 41 and with their conclusion that the juvenile court was not bound by confrontation clause standards for the admissibility of evidence.

{¶ 56} Once the above conclusions are reached, however, there is no need for further discussion regarding hearsay, non-hearsay, or hearsay exceptions. In fact, I do not agree with the majority's analysis regarding non-hearsay issues of J.J.'s statement to the detective.

{¶ 57} I would simply conclude that because the rules of evidence and the confrontation clause standards do not apply in this case, the trial court erred in excluding J.J.'s statements to the detective. When J.J.'s statements are considered along with the other evidence presented at the mandatory bindover hearing, there was sufficient evidence on which to bind Appellee over.

      As aforementioned, the probable cause hearing commenced on various dates due to issues with a material witness, who fled after he was granted immunity and released on the material witness warrant. The witness was interviewed by the detective on video; after initially saying the victim left his house in a blue car, this witness subsequently said he heard Appellee make incriminating statements at his house before and after the shooting. (St. Ex. 17-18). Appellee objected to the use of the witness's out-of-court statement, arguing there was no corroboration to show truthworthiness under the statement against interest hearsay exception. The juvenile court found this statement was barred by the confrontation clause and would not satisfy the declaration against interest hearsay exception in Evid.R. 804(B)(3) as there were no corroborating circumstances indicating truthworthiness. (9/26/16 J.E.) The court suggested it could not use J.J.'s statement as corroboration. (Tr. 154-157).

      In J.J.'s case, the court found probable cause (on the basis of complicity) and set the matter for an amenability hearing, as his younger age made bindover discretionary. (Tr. 233).

      The entry mistakenly stated, "Exhibits 1 through 16 were excluded on the within matter." There was no objection to St. Ex. 1 (the coroner's packet introduced during the medical examiner's testimony) or St. Ex. 4-15 (the video evidence). As to these exhibits, the court stated, "[t]he state has provided copies of the originals that are now accepted and admitted into evidence." (Tr. 215, 217).

      In a discretionary transfer case where the court finds probable cause, the case must be continued for an amenability hearing after a full investigation. Juv.R. 30(C). If the court decides to retain jurisdiction after the amenability hearing, it shall set the proceedings for the hearing "on the merits." Juv.R. 30(E).

      No objection was entered during the detective's testimony on what J.J. told him. Eleven months later, the court ruled State Ex. 2-3 (J.J.'s video statement) inadmissible and seemed to impliedly strike the detective's testimony on what he was told by J.J.


source: Caselaw Access Project

author: SADLER, J.

license: Public Domain

text:
    Alice WEBBER, Plaintiff-Appellant, v. OHIO DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellee.
    No. 17AP-323
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 21, 2017
    On brief: John J. Gill, Elyia, for appellant.
    On brief: Michael DeWine, Attorney General, and Velda K. Hofaker, for appellee. Argued: Velda K. Hofaker.
    DECISION
   SADLER, J.

{¶ 1} Plaintiff-appellant, Alice Webber, appeals from the judgment entry of the Court of Claims of Ohio granting the motion for summary judgment filed by defendant-appellee, Ohio Department of Public Safety ("ODPS"). For the following reasons, we reverse the decision of the Court of Claims of Ohio and remand the matter for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} Appellant, at all relevant times an assistant director for the Lorain County Emergency Management Agency, initiated suit against appellee alleging claims of defamation, civil conspiracy, negligent infliction of emotional distress, and negligent supervision arising from alleged statements made by appellee's employees and/or agents regarding appellant's response to a major 2014 flooding event. Appellant concurrently moved for an immunity decision, pursuant to R.C. 2703.42(F), as to five employees of appellee or its agencies, Bridgette Bouska, Laura Adcock, Nancy Dragani, Andrew Elder, and Sima Merick. The Court of Claims dismissed all but the defamation count of the complaint, which serves as the basis for the instant appeal.

{¶ 3} Under the defamation count of her complaint, appellant alleged that on or around May 14, 2014, Bouska, an individual assistance specialist employed by the Ohio Emergency Management Agency ("Ohio EMA"), provided false, defamatory statements to other individuals and entities, including other agents and/or employees of appellee including, but not limited to, Bouska's supervisor (Adcock), the director of the Ohio EMA (Dragani) and her deputy at the time (Merick), and the operations administrator for the Ohio EMA (Elder). According to the complaint, those statements "accuse[d] [appellant] of being a racist, discriminatory, biased, and/or prejudiced, and refusing or failing to perform her job duties based on the ethnicity of individuals." (Second Am. Compl. at 2.) The complaint specifies among the defamatory statements made by Bouska are accusations appellant did not perform her job duties in assessing flood damage in certain communities because there are "Spanish people there." (Second Am. Compl. at 3.) Appellant references as an exhibit appellee's administrative investigation report authored by Kathleen Botos. The investigation report documents Botos' investigation into Bouska's allegation that appellant made "offensive" comments that certain areas of Lorain County were not assessed due to the ethnicity of the residents and Bouska's persistence that appellant made such comments despite an audio recording of appellant's telephone conversation with Bouska, which proved appellant never made those statements. (Second Am. Compl. at 2.)

{¶ 4} The complaint further alleges appellee's agents and/or employees "received and repeated the defamatory comments and caused the defamatory statements to be circulated to others" and specifically "published and repeated the allegations that [appellant] had not performed her job duties based upon alleged prejudice by [appellant] towards certain ethnicities." (Second Am. Compl. at 3.) Ultimately, the defamatory "information was published to, among others, [appellant's] employer." (Second Am. Compl. at 3.) Appellant alleges the statements against her "were made maliciously and with intent to harm [appellant]" and "constitute defamation per se as they tend to injure [appellant] in her trade or occupation by accusing her of not doing her job because of personal prejudice or bias against race and/or ethnicity" or, alternatively, appellant suffered special damages. (Second Am. Compl. at 3.) Appellee answered by denying the allegations of the complaint and asserting, among other defenses, entitlement to an absolute or qualified privilege.

{¶ 5} On February 14, 2017, appellee moved for summary judgment on appellant's defamation claim and the immunity issue. According to appellee, appellant's defamation claim fails because (1) the statements appellant claims were made about her are not defamatory, (2) even if employees of appellee did call her racist, it would not be actionable because it is "merely a matter of opinion," (3) "accusing someone of being discriminatory is not defamation per se because the term 'racist' has been so overused and watered down that it simply has no ascertainable meaning [and,] [t]herefore, it is not injurious to one's trade or profession," (4) because the statement itself is ambiguous and does not implicate appellant as being racist, the "innocent construction rule" prevents liability to attach, and (5) any allegedly defamatory comments are entitled to a qualified privilege. (Mot. for Summ. Jgmt. at 1, 2.) Furthermore, appellee contended appellant is not entitled to an immunity determination because she has failed to state a claim for relief and because the undisputed facts demonstrate the named employees are entitled to immunity as a matter of law. Appellee's motion for summary judgment is supported by the affidavits of Bouska, Adcock, Dragani, Elder, Merick, and Botos.

{¶ 6} Bouska averred information provided to her on "street sheets," which document properties affected by the flood, the severity of damage, and insurance coverage, raised several concerns with her. (Bouska Aff. at 2.) Bouska was concerned with whether residents had been asked if they carried flood insurance and was concerned why some information on the street sheets did not match the information the Ohio EPA already had about the flooding event. Bouska spoke to appellant by telephone in order to receive more information and clarification on the areas assessed for damage. The call, in pertinent part, went as follows:

[Appellant:] [W]e actually have, that I know of, four different low-income apartment buildings.
[Bouska:] Ok.
[Appellant:] The other one is called Tower Boulevard.
[Bouska:] Ok. But those showed up on the PDA (Preliminary Damage Assessment)?
[Appellant:] Yes.
[Bouska:] So we're good with those.
[Appellant:] Ok. So, and that's Spanish speaking, and that's um, very low income, Tower Boulevard.
[Bouska:] Ok now, these 16 units at this other complex [Pearl Village Apartments], how much damage was there?
[Appellant:] The same amount as the, um, Sheffield Estates.
[Bouska:] About three to four inches?
[Appellant:] Yes. But they're very limited resources and things like that. So,
[Bouska:] Ok. Were those, those also garden units?
[Appellant:] Yes, and so was Tower Boulevard.
[Bouska:] Ok.
[Appellant:] Now there may have been, there may have been one unit at Tower Boulevard, I don't know how many units were actually reported.
[Bouska:] Ok.
[Appellant:] But um, I had one of the residents call me today and said that the manager said she was going to do the cleanup, she came in and, but you know how residents are, they say that floor is still wet, they'll, smells really bad and um, you know these are some disabled people, in both of these, in all four of these units.
[Bouska:] Ok. Has anyone taken a look at these?
[Appellant:] Um, well, we did yesterday. Took a look at the Tower Boulevard ones, but like they, but why they showed up on the reports. Red Cross went out to the Sheffield Estates and Pearl Village one yesterday.
[Bouska:] Ok.
[Appellant:] And they didn't do a full blown [damage assessment], but they, they opened up a shelter just for these residents. Hardly anyone showed up, they just, you know people don't want to go to shelters.
[Bouska:] Right.
[Appellant:] They stayed there, in the units, um but Red Cross said that, you know, they're trying to deal with what they can. They handed out some clean-up kits.
[Bouska:] Ok. All right. Um, Alice, we may have to do some more follow-up on this, somebody may actually have to go look at these.
[Appellant:] That's what I was thinking about. Calling my damage assessment team in, and actually, 'cause another, the other one is right beside Sheffield Estates. It's just around the block.
* * *
[Bouska:] * * * So basically Sheffield Township hasn't been done yet?
[Appellant:] Right, by us.
* * *
[Bouska:] Ok. All right. Ok Alice, make sure when you're going out you're asking the proper insurance question. And I know you know that that's asking if they have flood insurance.
[Appellant:] Right.
* * *
[Bouska:] * * * And if you could follow-up with that, and I'll put in for the briefing at 9:30 that the, you're, the county is going to follow-up with the um, Sheffield.
[Appellant:] Yes. We'll get back out and do the Sheffield ones.
[Bouska:] Ok. Thanks, Alice.

(May 14, 2014 Telephone Call at 9:03 a.m.)

{¶ 7} Bouska averred after the call with appellant, she contacted her own supervisor, Adcock, and, among other exchanges of information, "mentioned that certain of these areas had not been assessed because they had Spanish-speaking residents who did not speak English." (Bouska Aff. at 5.) Bouska averred "[t]hese are populations that we are required to give special consideration," and she was "very upset and concerned after speaking with [appellant] that some of the most vulnerable of our citizens were not part of the local damage assessment and might not receive the assistance they needed." (Bouska Aff. at 3, 7.) According to Bouska, "I never told anyone that [appellant] made the decision not to assess areas because the residents were Hispanic or spoke Spanish," "never referred to [appellant] as a racist or accused her of discrimination," and "sincerely believed that one of the reasons that these areas were not assessed was because the people did not speak English." (Bouska Aff. at 5.)

{¶ 8} As a result of these concerns, Adcock told Bouska to go to Lorain County and complete the preliminary damage assessment ("PDA"). Bouska left a message with appellant that she would like to come to Lorain County to "help her do the other three complexes in Sheffield Township." (May 14, 2016 Telephone Call at 9:28 a.m.) According to Bouska, although Bouska thought a translator would be available to assist with the assessments, no translator was available, and Bouska utilized her own basic Spanish knowledge to speak with one person. Bouska averred "[t]here were indeed Spanish-speaking people in the areas that had not been assessed." (Bouska Aff. at 6.) She adds that "[n]othing about my work in Lorain County made me believe that the fact that people did not speak English was not one of the reasons these areas were not initially assessed." (Bouska Aff. at 6.)

{¶ 9} According to Bouska, she was initially interviewed twice as part of an administrative investigation of two Ohio EMA field investigators, Cathy Deck and Leslie Bricker, who assisted with the flood assessment. During a third interview, Bouska was told she was now the subject of the administrative investigation after the lead investigator listened to the recording of her phone conversation with appellant and confirmed appellant had not said the areas were not assessed because of the presence of Spanish-speaking people. Bouska was charged in a disciplinary action with presenting false or misleading information during the course of the investigation. In her affidavit, Bouska states she has "since had the opportunity to carefully review the transcript of the telephone conversation and I recognize that I did misunderstand which area [appellant] had referred to as Spanish-speaking." (Bouska Aff. at 7.) Bouska characterizes the incident as a mistake, insists she has "not made disparaging statements about [appellant], nor have I heard any other ODPS employees do so," and says she never said anything about the phone conversation with appellant to anyone beyond her co-workers at the Ohio EMA, aside from those involved in the investigation in her own disciplinary action. (Bouska Aff. at 8.) Bouska "acted in good faith and without malice" toward appellant, whom she did not know prior to this incident. (Bouska Aff. at 8.)

{¶ 10} Adcock averred Bouska advised at least one of the areas not assessed and not reported on the street sheets had Spanish-speaking residents. Adcock did not know whether Deck or appellant gave this information to Bouska. Adcock received a phone call from appellant asking if Bouska had left Columbus yet, and appellant indicated that she hoped Bouska had left. Adcock asked appellant if they had Spanish-English translators available to assist Bouska with the assessment, and appellant indicated she could have a translator available and did not indicate a translator would not be needed for the areas that still had to be assessed.

{¶ 11} Adcock further averred Bouska never told her appellant "made a decision not to assess areas of Lorain County because she was discriminating against the Spanish-speaking population," Bouska and Adcock never called appellant "a racist or made any similar statement," and Adcock was not "aware of any ODPS employee who ever made any statements that [appellant] was a racist or discriminating against Spanish-speaking people." (Adcock Aff. at 4.) Adcock adds is it her understanding the director's office referred several concerns related to this flooding event to the Administrative Investigations Unit ("AIU"), and "[o]nce a matter is referred to the AIU, employees are not to discuss it, so I did not." (Adcock Aff. at 4.) Adcock reiterates that she "did not discuss this matter or [appellant] with anyone outside the ODPS, nor do I have knowledge that anyone from the ODPS did so." (Adcock Aff. at 4.) Adcock "did not bear any ill-will toward [appellant]" and "[e]verything [Adcock] did relative to this matter was part of [her] job duties and responsibilities." (Adcock Aff. at 5.)

{¶ 12} Dragani averred she "never referred to [appellant] as a racist or said that she discriminated against a population," "never made any disparaging comments about [appellant]," and "did not conclude based upon what [she] was told by [her] subordinates that [appellant] was a racist or acted in a discriminatory manner." (Dragani Aff. at 4.) According to Dragani, Bouska followed the proper protocol by bringing her concerns about the PDA done in Lorain County to the attention of her direct supervisor and Dragani. Dragani averred she acted in good faith and without ill will toward appellant.

{¶ 13} Elder averred that "[a]t no time did [he] hear anyone from ODPS refer to [appellant] as a racist or accuse her of being discriminatory," that he had known appellant for many years and never thought she was racist or discriminatory, and that he "did not make any disparaging comments about the way [appellant] did her job, nor [had he] heard any other ODPS employee make any such comments." (Elder Aff. at 2, 3.) He avers that his actions "were completely in line with [his] duties as an employee of ODPS," that he did not have any ill will or malice toward appellant, and that he acted in good faith to execute his professional duties. (Elder Aff. at 3.)

{¶ 14} Merick recalled Dragani relaying concerns over the PDA done in Lorain County, including a mismatch of information on the street sheets and verbal reports and questions over whether the proper insurance question had been asked. Dragani advised Bouska had reported an area with Spanish-speaking residents that had experienced significant flooding were not on the street sheets. Dragani and Merick decided to call the AIU for advice and that "[o]nce AIU begins reviewing a matter, we are not to discuss the matter or take further action." (Merick Aff. at 2.) According to Merick, at a meeting in November 2014, approximately four months after AIU had issued its report on the administrative investigation, Dragani and Merick met with appellant and her supervisor, Thomas Kelley. At the meeting, appellant was "extremely hostile" toward Dragani and Merick and said the two "implied that she was prejudiced," which Dragani and Merick denied. (Merick Aff. at 3.)

{¶ 15} Merick further averred that aside from the November 2014 meeting, she has never discussed this matter with anyone outside of appellee, nor is she aware of any other employee of appellee doing so. According to Merick, she does have "reason to believe that [appellant] has discussed this matter with EMA employees in other counties based upon questions/comments [Merick] received from county EMA employees, particularly from northeast Ohio." (Merick Aff. at 4.) Merick avers she never referred to appellant as a racist or said she discriminated against a population and did not conclude, based on what she was told by subordinates, appellant was a racist or acted in a discriminatory manner and never heard any employee of appellee refer to appellant in this manner. According to Merick, she had known appellant for years and had no ill will toward her, and Merick acted in good faith in performing her job duties and responsibilities in this matter.

{¶ 16} Botos averred that on Dragani's report, she initiated an investigation into the conduct of the two field liaisons deployed to the Lorain County flooding event. Appellant was not the named subject of the investigation. In her affidavit, Botos states "[o]ne of the allegations being investigated was whether the two ODPS employees (Deck and Bricker) did not assess certain areas of Lorain County because there were Spanish speaking people there who did not speak English," since it would be a concern if an employee of appellee knew certain areas were not assessed and yet not intervened to make sure all flood damage was reported on the street sheets. (Botos Aff. at 2.) As a part of that investigation, Botos interviewed Bouska; Botos attempted to contact appellant but could not speak with her as appellant was on medical leave. Botos avers during her interview with Bouska, the "only statement * * * Bouska made about the Lorain County residents was that they were 'Spanish speaking' and did not speak English." (Botos Aff. at 4-5.)

{¶ 17} During the course of the investigation, the AIU was advised of a telephone call between Bouska and appellant regarding which areas of Lorain County had been assessed for damages and which areas had not been assessed. The calls were transcribed, and Botos "discovered that [appellant's] reference to Spanish-speaking people was with regard to an area that had been assessed and reported on the street sheets," and, "[a]lthough [appellant] did state in the phone conversation that certain areas of Lorain County had not been assessed and had not been recorded on the street sheets, she did not state that it was because the people spoke Spanish, not English." (Botos Aff. at 3.)

{¶ 18} Botos decided to interview Bouska again and make her a subject of the investigation. Botos averred when Botos told Bouska about the recorded call, Bouska stated she had not lied, and she had accurately communicated her recollection of the conversation. Botos was upset that Bouska said she would stick with her statement even after being presented with the transcript of the telephone conversation. According to Botos, Bouska discussed the EMA is required to pay special attention to minority populations, poor, and disabled residents as they have the hardest time recovering from disasters. Botos asked Bouska "whether she felt that saying such a special population had not been assessed was a very serious allegation and [Bouska] agreed." (Botos Aff. at 3-4.) Botos then asked if Bouska thought to listen to the tape before reporting to her supervisor that areas with Spanish-speaking residents had not been assessed, and Bouska said she had not. Botos felt Bouska did not exercise due diligence by failing to ask appellant to clarify her statements or reviewing the recording, and ultimately concluded Bouska provided false or misleading information to the AIU, "even if not intentionally," relative to the street sheets and the areas of Lorain County that were not assessed. (Botos Aff. at 4.)

{¶ 19} In mid-July 2014, Botos spoke to Kelley by telephone. To Botos, "[i]t appeared that Mr. Kelly [sic] and [appellant] were already aware of the investigation as they indicated that they were upset that [appellant's] name was brought into it by reference to her telephone call with * * * Bouska." (Botos Aff. at 4.) Appellant and Kelley requested a copy of the final investigation report. In her affidavit, Botos states the use of the term "ethnicity" in the investigation report was her own description and was not a word used by Bouska or Dragani. (Botos Aff. at 5.)

{¶ 20} Botos averred to the truth and accuracy of her final administrative investigation report, which is attached to her affidavit as an exhibit. In the report, Botos documents the information provided by Bouska as follows:

[W]hen Bouska questioned [appellant] as to why [three buildings] had not been assessed, [appellant] told her, "Because there are Spanish people there." Bouska reported that she did not respond, and that [Bouska's] eyes "watered up" because she was hurt by [appellant's] comment. [Appellant] then allegedly told Bouska, "Well, none of them spoke English."

(Adm. Investigation Report at 3.) In her report, Botos writes Bouska repeatedly reported this version of the conversation, Bouska "insisted that comments made by [appellant] were offensive," the two discussed which comments were offensive, and Bouska acknowledged "the allegations she made against [appellant] were very serious." (Adm. Investigation Report at 5.)

{¶ 21} According to Botos' report, when Botos interviewed the field liaisons, "[t]hey strongly denied ever hearing [appellant] make any inappropriate comments about residents' race, ethnicity, or ability to speak English" and "could not imagine [appellant] saying something similar to what was alleged." (Adm. Investigation Report at 3.) Botos' report states "[appellant] did not make any of the comments Bouska attributed to her" and notes appellant's reference to Spanish-speaking residents was "not said in a derogatory or inappropriate manner." (Adm. Investigation Report at 3, 4.)

{¶ 22} The administrative investigation report included several attachments, including the telephone call transcripts and a written statement from Bouska. Appellee's motion for summary judgment additionally points to the deposition of appellant in which appellant agrees the administrative investigative report exonerates her and states no one has said to her, because of the investigation or incident in general, they believe she is a racist or their opinion of her went down.

{¶ 23} On March 13, 2017, appellant filed a memorandum contra summary judgment. In it, appellant argues "this situation clearly involves an allegation that [appellant] did not perform her job duties because of bias or prejudice," which constitutes defamation per se. (Memo. Contra at 4.) Appellant argues Bouska "has changed her story" and points to Bouska's own statements through the investigation conducted by appellee and her statements made during the course of her disciplinary hearing, in which Bouska maintained in a written closing statement "I have a moral and ethical responsibility to report situations of bias/prejudice/discrimination. I did just that." (Memo. Contra at 4.) Appellant notes Bouska's statements formed the basis for one of the administrative investigations entitled "Allegation # 2," which involved the allegation that "[c]ertain communities within Lorain County were not assessed for damage because the residents there were minorities and did not speak English." (Adm. Investigation Report at 1.)

{¶ 24} Appellant further argues the statements made by Bouska are false and not opinion and that those false statements were then published by an employee or agent of appellee to appellant's supervisor, Kelley. An affidavit of Kelley is attached to the memorandum contra, which provides that Deck told him appellee was investigating appellant because appellant did not perform an aspect of her job duties because the people involved were "Puerto Rican and/or Spanish and/or spoke Spanish." (Kelley Aff. at 2.) This surprised Kelley because he had known appellant for many years and never knew her to be discriminatory or racist. Kelley separately avers "I took this situation very seriously as I was told that [appellant] discriminated against people and did not perform her job duties because of people's race or ethnicity." (Kelley Aff. at 3.)

{¶ 25} Also attached to the memorandum contra was the affidavit of appellant. In it, appellant avers "[a]t no time in [her] conversation with Bouska did [appellant] state or imply that certain aspects of [her] job were not performed because there were Spanish speaking people in that area." (Webber Aff. at 3.) Appellant states on returning from medical leave, Kelley "confronted [her] in his office regarding a state investigation of my conduct toward Hispanic populations." (Webber Aff. at 4.) Appellant details alleged effects this incident has had on her physical and mental health and job performance.

{¶ 26} On March 13, 2017, appellee filed a combined motion for leave to file a supplemental memorandum in support of appellee's motion for summary judgment and motion to strike. As the basis of the motion to strike, appellee contended the affidavits of appellant and Kelley are not based on personal knowledge and admissible evidence. Regarding appellant's reference to a document containing Bouska's statement during her disciplinary process, appellee contended appellant failed to authenticate the document or present it as an exception to the hearsay rules and, therefore, that document should be stricken as incomplete and not considered by the court. On March 20, 2017, appellant filed a memorandum in opposition to appellee's motion for leave or, in the alternative, a motion for leave to file a reply and memorandum in opposition to appellee's motion to strike.

{¶ 27} On March 31, 2017, the Court of Claims issued a judgment in favor of appellee. The Court of Claims first granted appellee's motion for leave to file a supplemental memorandum in support of its motion for summary judgment and denied appellant's motion to strike appellee's motions. The Court of Claims then granted appellee's motion for summary judgment.

{¶ 28} In doing so, the Court of Claims states:

[Appellant] claims that Bouska uttered defamatory statements alleging that [appellant] did not perform her job duties because of bias or prejudice regarding "Spanish people" in the communities that were being assessed. [Appellee] argues that such statements do not impute bigotry to [appellant] and that and equally innocent construction is that the community was not assessed for damages because there may have been a language barrier in the Spanish-speaking community. The court agrees.
In her deposition, [appellant] testified that she was aware that at least part of the area that was being assessed had Spanish-speaking residents. ( [Appellant's] deposition, pages 115-116.) [Appellant] also acknowledged that she was asked by [appellee's] employees about the availability of a Spanish-English interpreter to assist with the assessment. [Appellant] admitted that she was not aware of anyone who had directly accused her of being a racist as a result of either the incident or the subsequent investigation. ( [Appellant's] deposition, page 138.)
Considering the context from which the statements arose, the court finds that, there is a reasonable innocent construction and, therefore, this construction must be adopted. Accordingly, the court finds that, as a matter of law, the statements at issue are not defamatory and [appellant] cannot prevail on her defamation claim.

(Mar. 31, 2017 Decision at 5-6.)

{¶ 29} Regarding immunity of named individuals, the Court of Claims noted in its motion for summary judgment appellee presented evidence in support of immunity of its employees and appellant's memorandum contra failed to present any evidence or legal argument to support a contrary finding. Therefore, the Court of Claims found Bouska, Adcock, Dragani, Elder, and Merick are entitled to immunity pursuant to R.C. 9.86 and 2743.02(F), and the court of common pleas does not have jurisdiction over any civil actions that may be filed against them based on the allegations of this case.

{¶ 30} Appellant filed a timely appeal to this court.

II. ASSIGNMENTS OF ERROR

{¶ 31} Appellant presents two assignments of error:

1. The trial court committed prejudicial error when it granted the motion for summary judgment by finding a reasonable innocent construction of the defamatory statements.
2. The trial court committed prejudicial error when it granted summary judgment and concluded that the employees of the Ohio Department of Public Safety referenced in the complaint were entitled to civil immunity.

III. STANDARD OF REVIEW

{¶ 32} Pursuant to Civ.R. 56(C), summary judgment is appropriate only under the following circumstances: (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party. Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). "When seeking summary judgment on grounds that the non-moving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the non-moving party's claims." Lundeen v. Graff , 2015-Ohio-4462, 46 N.E.3d 236, ¶ 11, citing Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). Once the moving party meets its initial burden, the nonmovant must set forth specific facts demonstrating a genuine issue for trial. Dresher at 293, 662 N.E.2d 264. The nonmoving party may not rest on the mere allegations and denials in the pleadings but, instead, must point to or submit some evidentiary material that shows a genuine dispute over the material facts exists. Henkle v. Henkle , 75 Ohio App.3d 732, 735, 600 N.E.2d 791 (12th Dist.1991).

{¶ 33} Appellate review of summary judgment is de novo. Gabriel v. Ohio State Univ. Med. Ctr. , 10th Dist. No. 14AP-870, 2015-Ohio-2661, 2015 WL 3963953, ¶ 12, citing Byrd v. Arbors E. Subacute & Rehab. Ctr. , 10th Dist. No. 14AP-232, 2014-Ohio-3935, 2014 WL 4459120, ¶ 5. "When an appellate court reviews a trial court's disposition of a summary judgment motion, it applies the same standard as the trial court and conducts an independent review, without deference to the trial court's determination." Gabriel at ¶ 12, citing Byrd at ¶ 5, citing Maust v. Bank One Columbus, N.A. , 83 Ohio App.3d 103, 107, 614 N.E.2d 765 (10th Dist.1992).

IV. DISCUSSION

A. First Assignment of Error

{¶ 34} Under the first assignment of error, appellant contends the Court of Claims erred when it granted appellee's motion for summary judgment by finding a reasonable innocent construction of the defamatory statements. For the following reasons, we agree.

{¶ 35} "Defamation, which includes both libel and slander, is a false publication causing injury to a person's reputation, exposing the person to public hatred, contempt, ridicule, shame or disgrace, or affecting the person adversely in his or her trade or business." Knowles v. Ohio State Univ. , 10th Dist. No. 02AP-527, 2002-Ohio-6962, 2002 WL 31819687, ¶ 22. Generally, slander refers to spoken defamatory words and libel refers to written defamatory words. Holley v. WBNS 10TV , 149 Ohio App.3d 22, 2002-Ohio-4315, 775 N.E.2d 579, ¶ 29 (10th Dist.), citing Retterer v. Whirlpool Corp. , 111 Ohio App.3d 847, 857, 677 N.E.2d 417 (3d Dist.1996).

{¶ 36} To establish the prima facie case of defamation, a plaintiff must show (1) the defendant made a false statement, (2) the statement was defamatory, (3) the statement was published, (4) the plaintiff was injured as a result of the statement, and (5) the defendant acted with the required degree of fault. Knowles at ¶ 21, citing Sweitzer v. Outlet Communications , 133 Ohio App.3d 102, 108, 726 N.E.2d 1084 (10th Dist.1999). "To survive a motion for summary judgment in a defamation action, a plaintiff must make a sufficient showing as to each of the five essential elements of the case." Murray v. Knight-Ridder, Inc. , 7th Dist. No. 02 BE 45, 2004-Ohio-821, 2004 WL 333250, ¶ 14. If a statement is defamation "per se," both damages and actual malice are presumed to exist. Knowles at ¶ 24 ; Miller v. Cent. Ohio Crime Stoppers, Inc. , 10th Dist. No. 07AP-669, 2008-Ohio-669, 2008 WL 747723, ¶ 12-13 (noting that actual malice will not be presumed if the defense of qualified privilege applies). Generally, "[a] statement will be considered defamation per se if the statement tends to injure a person in his or her trade, profession, or occupation." Knowles at ¶ 24 ; Gilson v. Am. Inst. of Alternative Medicine , 2016-Ohio-1324, 62 N.E.3d 754. As noted by the judgment of Court of Claims, Ohio courts have determined that "being referred to as racist may, at times, constitute defamation per se." Lennon v. Cuyahoga Cty. Juvenile Court , 8th Dist. No. 86651, 2006-Ohio-2587, 2006 WL 1428920, ¶ 28.

{¶ 37} Whether certain statements alleged to be defamatory are actionable or not is a matter for the court to decide as a matter of law. Am. Chem. Soc. v. Leadscope, Inc. , 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d 832, ¶ 78, citing Yeager v. Local Union 20, Teamsters , 6 Ohio St.3d 369, 372, 453 N.E.2d 666 (1983). In determining whether a statement is defamatory as a matter of law, a court must review the totality of the circumstances, consider the statement within its context rather than in isolation, and determine whether a reasonable person would interpret that statement as defamatory. Am. Chem. Soc. at ¶ 79.

{¶ 38} The Court of Claims' decision in this case was based on the second prong of appellant's prima facie case: the lack of a defamatory statement. Specifically, the Court of Claims found that the statements made by employees of appellee were not defamatory as a matter of law under the innocent construction rule.

{¶ 39} This court has recognized that the Supreme Court of Ohio in Yeager adopted the innocent construction rule. Holley at ¶ 32. Under the innocent construction rule, if a statement is reasonably susceptible of both a defamatory and an innocent meaning, the innocent meaning must be adopted as a matter of law. Id. , citing Yeager at 372, 453 N.E.2d 666.

Thus, " '[t]he rule protects only those statements that are reasonably susceptible of an innocent construction.' " (Emphasis sic.) Roe v. Heap , 10th Dist. No. 03AP-586, 2004-Ohio-2504, 2004 WL 1109849, ¶ 46, quoting McKimm v. Ohio Elections Comm. , 89 Ohio St.3d 139, 146, 729 N.E.2d 364 (2000).

{¶ 40} We do not agree that the innocent construction rule applies in this case for two reasons. First, viewing the totality of the circumstances, Bouska's statement cannot be reasonably construed as merely relaying that a community was not assessed due to a language barrier issue. To Botos, Bouska described appellant's statements about Spanish-speaking people as "offensive" and talked about how her eyes watered up because she was hurt by appellant's comment. (Adm. Investigation Report at 5.) Botos understood Bouska's allegation as accusing appellant of making an "inappropriate" or a "derogatory" comment and asked the field investigators about such inappropriate comments; the field investigators "could not imagine [appellant] saying something similar to what was alleged." (Adm. Investigation Report at 3, 4.) Kelley specifically avers that he "took this situation very seriously as I was told that [appellant] discriminated against people and did not perform her job duties because of people's race or ethnicity." (Kelley Aff. at 3.)

{¶ 41} Second, the statement that appellant did not assess certain areas affected by the flood because Spanish people are there, even stripped of any racist, bias, or prejudice meaning, is not an "innocent" construction on this record. It is undisputed appellee views its flood response to vulnerable populations as a serious matter and a priority. Bouska averred "[t]hese are populations that we are required to give special consideration [and that she was] very upset and concerned after speaking with [appellant] that some of the most vulnerable of our citizens were not part of the local damage assessment and might not receive the assistance they needed." (Bouska Aff. at 3, 7.) Bouska agreed the allegation she made about appellant is "very serious." (Botos Aff. at 3-4; Adm. Investigation Report at 5.) Such an allegation is so serious within this profession that it prompted appellee to conduct an administration investigation into the matter. Therefore, under the totality of the circumstances, even the construction appellee proposes is not reasonably susceptible to an innocent meaning in this case.

{¶ 42} As a result, appellee is not entitled to judgment as a matter of law on the basis of the innocent construction rule. The remainder of the prima facie case and applicability of appellee's defense of qualified privilege were not addressed by the Court of Claims and fall outside of the assignment of error posed to this court. Huntington Natl. Bank v. Burda , 10th Dist. No. 08AP-658, 2009-Ohio-1752, 2009 WL 989127, ¶ 21, citing App.R. 12(A)(1)(b) (stating "a court of appeals shall * * * [d]etermine the appeal on its merits on the assignments of error set forth in the briefs"). We remand the case to the Court of Claims to consider, in the first instance, the remainder of the prima facie case and appellee's defense of qualified privilege.

{¶ 43} Accordingly, appellant's first assignment of error is sustained.

B. Second Assignment of Error

{¶ 44} Under the second assignment of error, appellant contends the Court of Claims erred when it concluded the five employees of appellee referenced in the complaint were entitled to civil immunity. For the following reasons, we disagree.

{¶ 45} "Whether a state employee is entitled to personal immunity from liability under R.C. 9.86 involves a question of law * * * over which the Court of Claims has exclusive, original jurisdiction." Wrinn v. Ohio State Hwy. Patrol , 10th Dist. No. 11AP-1006, 2013-Ohio-1141, 2013 WL 1200256, ¶ 9. "While the issue of immunity is a question of law, consideration of the specific facts is necessary." Marinucci v. Ohio Dept. of Transp. , 10th Dist. No. 99AP-500, 2000 WL 29587 (Jan. 18, 2000). Matters of credibility should be resolved by the trial court. Id. "If the Court of Claims determines that the employee is immune from liability, the plaintiff in the underlying action must assert his or her claims against the state, not the employee." Wrinn at ¶ 9, citing R.C. 2743.02(A)(2). "[W]hether or not the elements of defamation were shown is irrelevant to an immunity determination." Marinucci.

{¶ 46} R.C. 2743.02(F), the statutory provision regarding the state's waiver of immunity from liability, states:

A civil action against an officer or employee, as defined in section 109.36 of the Revised Code, that alleges that the officer's or employee's conduct was manifestly outside the scope of the officer's or employee's employment or official responsibilities, or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner shall first be filed against the state in the court of claims that has exclusive, original jurisdiction to determine, initially, whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code and whether the courts of common pleas have jurisdiction over the civil action. The officer or employee may participate in the immunity determination proceeding before the court of claims to determine whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code.

(Emphasis added.)

{¶ 47} R.C. 9.86, "[c]ivil immunity of officers and employees," states:

Except for civil actions that arise out of the operation of a motor vehicle and civil actions in which the state is the plaintiff, no officer or employee shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer's or employee's actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner .
This section does not eliminate, limit, or reduce any immunity from civil liability that is conferred upon an officer or employee by any other provision of the Revised Code or by case law. This section does not affect the liability of the state in an action filed against the state in the court of claims pursuant to Chapter 2743. of the Revised Code.

(Emphasis added.)

{¶ 48} "Malicious purpose encompasses exercising 'malice,' which can be defined as the willful and intentional design to do injury, or the intention or desire to harm another, usually seriously, through conduct that is unlawful or unjustified." Wrinn at ¶ 12, quoting Caruso v. State , 136 Ohio App.3d 616, 620, 737 N.E.2d 563 (10th Dist.2000). "Common law malice connotes hatred, ill will or a spirit of revenge." Marinucci. "Bad faith" generally implies or involves " 'actual or constructive fraud or a design to mislead or deceive another.' " Wrinn at ¶ 12, quoting Caruso at 621, 737 N.E.2d 563. " 'Bad faith is not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive.' " Wrinn at ¶ 12, quoting Caruso at 621, 737 N.E.2d 563. " 'Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result.' " Wee Care Child Ctr., Inc. v. Ohio Dept. of Job & Family Servs. , 10th Dist. No. 13AP-1004, 2014-Ohio-2913, 2014 WL 2973285, ¶ 29, quoting Anderson v. Massillon , 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, paragraph three of the syllabus. " 'Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.' " Wee Care Child Ctr. at ¶ 29, quoting Anderson at paragraph four of the syllabus.

{¶ 49} Appellant alleged in her complaint that "[t]he allegations against plaintiff were made maliciously and with intent to harm plaintiff." (Second Am. Compl. at 3.) In its motion for summary judgment, appellee produced affidavits of the named individuals as evidence that the named individuals made, discussed, or relayed the statement regarding appellant to other employees of appellee in the course of the flood response or administrative investigation into the flood response. The named individuals also generally averred to acting in good faith and not harboring ill will toward appellant personally. Both Bouska and appellant stated they did not know each other prior to this incident. Throughout the incident and administrative investigation, Bouska adamantly maintained the truth of her recollection of her conversation with appellant until admitting to her misunderstanding and mistake in her affidavit.

{¶ 50} In her memorandum in opposition to summary judgment, appellant did not argue or point to evidence on this issue. For the first time on appeal, appellant argues Bouska imagined portions of a conversation that did not take place, none of the named individuals verified the conversations, and an administrative investigation was initiated in part due to the alleged discrimination on the part of appellant.

{¶ 51} We find appellee met its initial burden under Civ.R. 56 on the issue of immunity, and appellant failed to meet her reciprocal burden to set forth specific facts demonstrating a genuine issue for trial. Dresher at 293, 662 N.E.2d 264. Furthermore, appellant improperly presented her argument on immunity for the first time on appeal, and her argument was devoid of legal authority and citation to the record. Tucker v. Leadership Academy for Math , 10th Dist. No. 14AP-100, 2014-Ohio-3307, 2014 WL 3740486, ¶ 20, quoting Henson v. Cleveland Steel Container Corp. , 11th Dist. No. 2008-P-0053, 2009-Ohio-180, 2009 WL 118959, ¶ 77 ("[W]hile this court's standard of review on a motion for summary judgment is de novo, that standard 'does not supersede [an appellate court's] settled practice of not addressing issues raised for the first time on appeal.' "); Miller v. Johnson & Angelo , 10th Dist. No. 01AP-1210, 2002-Ohio-3681, 2002 WL 1578737, ¶ 2 ; see also App.R. 9 and 16(A)(7) ("[t]he appellant shall include * * * [a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies."). Therefore, considering all the above, we find appellant's second assignment of error lacks merit.

{¶ 52} Accordingly, appellant's second assignment of error is overruled.

V. CONCLUSION

{¶ 53} Having sustained appellant's first assignment of error and overruled appellant's second assignment of error, we reverse the judgment of the Court of Claims of Ohio and remand the matter to that court for further proceedings consistent with this decision.

Judgment reversed ; cause remanded.

TYACK, P.J., and LUPER SCHUSTER, J., concur.

      We note the trial court did not expressly address or rule on appellee's motion to strike improper evidence. Where a court does not explicitly rule on a motion, it is presumed to have been denied. Whitmer v. Zochowski , 2016-Ohio-4764, 69 N.E.3d 17, ¶ 39, fn. 6.