In re R.Z.

[Cite as In re R.Z., 2022-Ohio-3630.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE R.Z. : APPEAL NO. C-210660
TRIAL NO. 21-599X
:
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 12, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, and Joshua Thompson,
Assistant Public Defender, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} The state appeals the juvenile court’s order, which found no probable
cause to believe that defendant-appellee R.Z. committed acts that would constitute
burglary under R.C. 2911.12(A)(1) if committed by an adult. In response, R.Z.
challenges the juvenile court’s and this court’s jurisdiction. For the following reasons,
we hold that we have jurisdiction over the case and affirm the juvenile court’s order.
I. Facts and Procedure
{¶2} In 2015, Carolyn Johnson woke up and found her house in disarray.
Suspecting a burglary, she called the police. As part of the investigation, detective Carl
Blackwell swabbed an out-of-place kitchen knife and two liquor bottles for biological
evidence and submitted the swabs to the Hamilton County Crime Laboratory for DNA
testing. In March 2016, Blackwell received a testing report, which noted the presence
of “a mixture of DNA from at least three individuals” on the knife. From that mixture,
the laboratory identified a major DNA profile that “originated from a male individual.”
The police uploaded that profile to the Combined DNA Index System (“CODIS”).
{¶3} In January 2021, the Ohio Bureau of Criminal Investigation (“BCI”)
notified the laboratory:
During a search of Ohio’s DNA Index System (SDIS), a preliminary
association was made between Hamilton County Coroner’s Laboratory
specimen CL1511236 #1-2 and the below individual.
Any possible connection or involvement of the individual to
the case must be determined through further investigation.
This investigative lead is not intended to replace the forensic
laboratory’s reporting document. An additional DNA sample from
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the following individual must be obtained for verification by
the forensic laboratory.
(Emphasis in original.) The following month, Blackwell filed a complaint in the
juvenile court alleging that R.Z. was delinquent under R.C. 2152.02 for committing an
act that would constitute burglary under R.C. 2911.12(A)(1) if performed by an adult.
In 2015, R.Z. was 15 years old.
{¶4} In October 2021, the state asked the juvenile court to relinquish its
jurisdiction and transfer the case to the adult court under Juv.R. 30(A). In December
2021, the juvenile court held an R.C. 2152.12 bindover hearing to determine whether
probable cause existed to believe that R.Z. had committed the alleged act. At the
hearing, the state’s evidence consisted of testimony from Blackwell, crime scene
photographs, the 2016 DNA test results, and the 2021 BCI notification.
{¶5} Relevant here, Blackwell described how he “received that preliminary
hit on [R.Z.]”—he “believe[d] [R.Z.] was charged on an unrelated incident” and “would
imagine [that] once he was arrested his DNA was swabbed.” Blackwell agreed that the
hit was based on “other DNA.” After he received the notification, Blackwell filed the
complaint because he “had enough from the DNA sample to—[he] had enough
probable cause from the DNA sample returned from the Coroner’s office to file a
charge against him for burglary, because his DNA was found on the knife.” Blackwell
acknowledged that he never took a known sample from R.Z. and that the preliminary
association “has yet to be verified.”
{¶6} Following the parties’ closing arguments, the juvenile court found:
[I]n light of particularly the BCI investigation report which appears to
be the sole piece of identifying information in this case, that the state
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has not met their burden. There is no probable cause here.
However, that means that it is dismissed for want of prosecution. It can
always be re-filed.
The juvenile court’s entry reiterated that finding—the evidence was insufficient to
establish probable cause, and the case was dismissed “without prejudice for want of
prosecution.”
{¶7} The state appeals and challenges the juvenile court’s probable-cause
determination.
II. Law and Analysis
{¶8} Before reaching the merits, we must address R.Z.’s procedural and
jurisdictional assertions related to this appeal. First, he contends the bindover hearing
was not within the scope of the juvenile court’s jurisdiction. Second, he argues the
juvenile court’s judgment finding no probable cause and dismissing the case without
prejudice was not a final order from which the state could appeal as a matter of right
under R.C. 2945.67(A). For its part, the state failed to file a reply brief. But after a
review of the relevant statutes and case law, we disagree with R.Z.’s propositions.
A. The Juvenile Court Had Jurisdiction
{¶9} R.Z. challenges the juvenile court’s jurisdiction. Relevant here, the Ohio
legislature has vested the juvenile court with exclusive subject-matter jurisdiction over
“any child who on or about the date specified in the complaint” was alleged to be
delinquent. R.C. 2151.23(A)(1). Framed in terms of this case, the issue is whether R.Z.
fell under R.C. 2152.02’s statutory definition of a child at the time of the bindover
hearing. R.Z. answers no and interprets R.C. 2152.02(C)(6) to narrow the juvenile
court’s jurisdiction to a period “until the person attains twenty-one years of age.”
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Applying this interpretation of the statute, R.Z. explains that he was 20 years old when
the complaint was filed and 21 years old when the trial court held the hearing. And the
Ohio Supreme Court has stated, “juvenile courts do not have jurisdiction over
adjudicated delinquents once they are 21 years old.” See In re J.V., 134 Ohio St.3d 1,
2012-Ohio-4961, 979 N.E.2d 1203, ¶ 23. Thus, R.Z. contends the juvenile court lacked
jurisdiction to entertain the state’s bindover motion.
{¶10} We disagree and hold that R.Z.’s bindover hearing was within the
juvenile court’s jurisdiction because he was apprehended for the acts charged before
he turned 21 years old.
{¶11} Under R.C. 2152.02(C)(1), a child is a person under 18 years of age. But
a person under 18 years old who commits an act in violation of a federal or state law
“shall be deemed a ‘child’ irrespective of that person’s age at the time the complaint
with respect to that violation is filed or the hearing on the complaint is held.” R.C.
2152.02(C)(2). Still more, a person is not a child if the alleged act occurred before the
person reached 18 years old and the person was “not taken into custody or
apprehended for that act” until after the person turned 21 years old. R.C.
2152.02(C)(3). In other words, a person is a “child” if the allegedly delinquent conduct
was committed before the person turned 18 years old and the person was apprehended
before turning 21 years old. R.C. 2152.02(C)(2) and (3). The statutory text is clear—a
person is a “child” under the statute if the alleged violation was committed before the
person turned 18 years old and the complaint was filed before the person turned 21
years old “irrespective of that person’s age at the time * * * the hearing on the
complaint is held.” Id.5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} R.Z. relies on R.C. 2152.02(C)(6), which states,
The juvenile court has jurisdiction over a person who is adjudicated a
delinquent child * * * prior to attaining eighteen years of age until the
person attains twenty-one years of age, and, for purposes of that
jurisdiction related to that adjudication, except as otherwise provided
in this division, a person who is so adjudicated a delinquent child or
juvenile traffic offender shall be deemed a ‘child’ until the person attains
twenty-one years of age. If a person is so adjudicated a delinquent child
or juvenile traffic offender and the court makes a disposition of the
person under this chapter, at any time after the person attains twenty-
one years of age, the places at which the person may be held under that
disposition are not limited to places authorized under this chapter solely
for the confinement of children, and the person may be confined under
that disposition, in accordance with division (F)(2) of section 2152.26 of
the Revised Code, in places other than those authorized under this
chapter solely for the confinement of children.
{¶13} A similar provision of the statute, R.C. 2151.23(I), limits the exclusive
jurisdiction of the juvenile court when “(1) the defendant [was] under eighteen years
of age at the time of the offense; (2) the alleged offense would be a felony if committed
by an adult; and (3) the defendant [was not] ‘taken into custody or apprehended’ for
the offense prior to turning twenty-one years of age.” In re H.C., 8th Dist. Cuyahoga
No. 102601, 2015-Ohio-3676, ¶ 10, quoting R.C. 2151.23(I). And recently the Ohio
Supreme Court held that the juvenile court had exclusive subject-matter jurisdiction
over a person taken into custody before turning 21 years of age for acts committed
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when he was 17 years old. See State v. Hudson, Slip Opinion No. 2022-Ohio-1435, ¶ 3
(interpreting R.C. 2152.02(C)(3) and 2151.23(I)).
{¶14} The Ohio Supreme Court has repeatedly stated that R.C. 2152.02 makes
“the age of the offender upon apprehension the touchstone of determining juvenile-
court jurisdiction.” State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d
829, ¶ 14; see Bear v. Buchanan, 156 Ohio St.3d 348, 2019-Ohio-931, 126 N.E.3d 1115,
¶ 5 (quoting Walls at ¶ 14). What matters is whether the delinquency proceeding in
question is a “hearing on the complaint.” See State ex rel. Jean-Baptiste v. Kirsch, 134
Ohio St.3d 421, 2012-Ohio-5697, 983 N.E.2d 302, ¶ 23.
{¶15} Consider some examples. A juvenile court “does not patently and
unambiguously lack jurisdiction to proceed with the delinquency case even though
N.A. turned 21 years old before the case concluded” when N.A. was apprehended
before he turned 21 for alleged acts that occurred before he turned 18. State ex rel.
N.A. v. Cross, 125 Ohio St.3d 6, 2010-Ohio-1471, 925 N.E.2d 614, ¶ 2-3, 14. In contrast,
a juvenile court was divested of its jurisdiction over a person that “had not been
apprehended for committing the offense until after he turned 21 years of age.” State v.
Taylor, 8th Dist. Cuyahoga No. 105322, 2017-Ohio-8066, ¶ 14.
{¶16} Yet, as R.Z. points out, the Ohio Supreme Court has also explained that
“juvenile courts have jurisdiction over adjudicated delinquents until they are 21 years
old. The obvious flip side of that statement is that juvenile courts do not have
jurisdiction over adjudicated delinquents once they are 21 years old.” In re J.V., 134
Ohio St.3d 1, 2012-Ohio-4961, 979 N.E.2d 1203, at ¶ 23. But In re J.V. and the other
cases cited by R.Z. concerned the application of R.C. 2152.02(C)(6) to individuals who
were adjudicated delinquent before reaching 18 years of age. See id. at ¶ 1 and 23 (17
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years old when adjudicated delinquent); see also In re R.B., 162 Ohio St.3d 281, 2020-
Ohio-5476, 165 N.E.3d 288, ¶ 13 (14 years old when adjudicated delinquent). The plain
language of R.C. 2152.02(C)(6) is clear—that section of the statute applies where an
individual was “adjudicated a delinquent child * * * prior to attaining eighteen years
of age.” And the Supreme Court of Ohio has explained that R.C. 2152.02(C)(6) is of no
concern when the person who committed the act in question is “not adjudicated a
delinquent child before he was 18 years old.” Id. at ¶ 11. Still more, “a person over the
age of 18, who is deemed a child pursuant to the second clause of R.C. 2152.02(C)(6),
is so deemed for purposes other than determining jurisdiction.” In re Andrew, 119
Ohio St.3d 466, 2008-Ohio-4791, 895 N.E.2d 166, ¶ 6. In fact, this section of the
statute modifies the authority of the juvenile court to confine the person after the
person’s 21st birthday. In these instances, the places the individual may be confined
“are not limited to places authorized under this chapter solely for the confinement of
children.” R.C. 2152.02(C)(6).
{¶17} Finally, R.Z. cites the Ohio Supreme Court to argue that that the
jurisdiction of the juvenile court exists “ ‘until terminated or modified by the court or
until the child attains twenty-one years of age.’ ” In re A.W., 160 Ohio St.3d 183, 2020-
Ohio-1457, 155 N.E.3d 819, ¶ 7, quoting R.C. 2152.22(A). Likewise, other sections of
the statute restrict the juvenile court from committing a delinquent child to the
custody of the Department of Youth Services “for a period that exceeds the child’s
attainment of twenty-one years of age.” R.C. 2152.17. But these statutes merely
“restrict the juvenile court’s dispositional power to commit delinquent children to the
custody of the Department of Youth Services only until they are 21 years old.” Cross,
125 Ohio St.3d 6, 2010-Ohio-1471, 925 N.E.2d 614, at ¶ 12.
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{¶18} Thus, we hold that the juvenile court had jurisdiction over R.Z. under
the plain language of R.C. 2152.02(C)(2) and (3) because R.Z. allegedly committed the
acts before he turned 18 years old and was apprehended before he turned 21 years old.
B. The State Exercised its Right to Appeal From a Final Order
{¶19} Next, we must determine whether the juvenile court’s denial of the
motion for a discretionary bindover based on a finding of no probable cause and
dismissal of the complaint is a final, appealable order that the state may appeal as a
matter of right under R.C. 2945.67(A). In other words, we must determine if we have
jurisdiction over the appeal, because an appellate court’s jurisdiction is limited to final
orders and judgments. See In re J.P., 2022-Ohio-539, 185 N.E.3d 626, ¶ 6 (1st Dist.),
citing Ohio Constitution, Article IV, Section 3(B)(2). Under R.C. 2945.67(A), the state
“may appeal as a matter of right” a juvenile court’s decision in a delinquency case that
“grants a motion to dismiss all or any part of an indictment, complaint, or
information.” For all other types of decisions in a delinquency case, the prosecutor
“may appeal by leave of the [appellate] court.” R.C. 2945.67(A). Because the state has
not sought leave, we can proceed if the state has an appeal as a matter of right.
{¶20} The state maintains that the juvenile court’s order was, in effect, an
order denying a motion for a mandatory bindover because the order “bar[red] the state
from prosecuting a juvenile offender as an adult.” In re A.J.S., 120 Ohio St.3d 185,
2008-Ohio-5370, 879 N.E.3d 629, ¶ 1. R.Z. disagrees, emphasizing that this was a
discretionary-bindover hearing, and stresses the continuing jurisdiction of a juvenile
court over a delinquency case when it overrules a motion for a discretionary bindover.
The discretionary-mandatory distinction is significant, because a finding of no
probable cause for mandatory offenses “is the functional equivalent of a dismissal of a
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OHIO FIRST DISTRICT COURT OF APPEALS
criminal indictment and constitutes a final order from which the state may appeal as
a matter of right.” Id. Particularly, a juvenile court’s decision finding a child amenable
to rehabilitation and denying the state’s request for a discretionary bindover is not the
“ ‘functional equivalent of a dismissal of a criminal indictment’ and there is no
authority under R.C. 2945.67(A) for the state to appeal as a matter of right.” In re M.P.,
124 Ohio St.3d 445, 2010-Ohio-7028, ¶ 16, quoting In re A.J.S. at ¶ 1.
{¶21} One court has harmonized In re A.J.S. and In re M.P. to hold that an
order denying a discretionary bindover based on a lack of probable cause is the
equivalent of a dismissal of a criminal indictment, and the state has an appeal as a
matter of right, because that order “forecloses criminal prosecution in adult court.” In
re D.M.S., 2d Dist. Montgomery No. 28783, 2020-Ohio-7028, ¶ 12. R.Z. disagrees and
argues extensively that a decision denying a discretionary bindover based on a lack of
probable cause is readily distinguishable from a dismissal of a criminal indictment
because the delinquency case continues to exist in the juvenile court.
{¶22} But this argument fails to recognize that the juvenile court dismissed
the complaint after it denied the discretionary bindover based on a lack of probable
cause. And a juvenile court’s sua sponte dismissal of a delinquency charge after finding
no probable cause “is the equivalent of a ‘decision grant[ing] a motion to dismiss’
under R.C. 2945.67(A).” In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d
1207, ¶ 13, quoting State v. Ryan, 17 Ohio App.3d 150, 478 N.E.2d 257 (1st Dist.1984).
While the juvenile court dismissed the case without prejudice, R.C. 2945.67(A) “clearly
affords the state the right to appeal, as a matter of right, any decision that grants a
motion to dismiss, without requiring that the dismissal be with prejudice.” (Emphasis
in original.) State v. Craig, 116 Ohio St.3d 135, 2007-Ohio-5752, 876 N.E.2d 957, ¶ 13.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} Next, R.Z. argues that the juvenile court’s order was not a final,
appealable order under R.C. 2505.02(B). That statute identifies several categories of
final, appealable orders. Relevant here, the juvenile court’s order was a final,
appealable order under R.C. 2505.02(B)(4) if “it ha[d] the effect of determin[ing] the
action with respect to the provisional remedy and prevent[ing] a judgment in the
action in favor of the appealing party with respect to the provisional remedy” and
“[t]he appealing party would not be afforded a meaningful or effective remedy by an
appeal following final judgment as to all proceedings, issues, claims, and parties in the
action.” Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, ¶ 5. R.Z.
does not dispute that the discretionary-bindover hearing was a provisional remedy as
defined in R.C. 2505.02(A)(3). And he agrees that the juvenile court’s order
determined the action with respect to the provisional remedy.
{¶24} Rather, R.Z. argues that the state would be afforded a meaningful
remedy. But this argument fails to account for the caselaw holding that a juvenile
court’s denial of a bindover “prevents the state from obtaining a meaningful or
effective remedy by way of appeal at the conclusion of those proceedings.” In re A.J.S.,
120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, at ¶ 28; see In re S.J. at ¶ 13
(holding that an order dismissing a charge after finding no probable cause “is final, as
it affects a substantial right and prevented a judgment on the murder charges”); In re
D.M.S., 2d Dist. Montgomery No. 28783, 2020-Ohio-7028, at ¶ 21 (“the State would
lack a meaningful remedy to challenge the juvenile court’s probable cause
determination after the end of juvenile court proceedings”). We hold that the juvenile
court’s order was a final, appealable order under R.C. 2505.02(B).
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C. The State Failed to Establish Probable Cause
{¶25} The state challenges the juvenile court’s probable-cause determination.
Generally, an appeal challenging a probable-cause finding in a bindover proceeding
“involves questions of both fact and law.” In re A.J.S. at ¶ 51. But the existence of
probable cause is a question of law that we review de novo. Id. at ¶ 47.
{¶26} At a bindover hearing, the state has the burden of producing sufficient
and credible evidence of every element of an offense to support a finding that probable
cause existed to believe that the child committed the charged offense. In re T.S., 1st
Dist. Hamilton No. C-200267, 2021-Ohio-1889, ¶ 12, citing In re A.J.S. at ¶ 42, citing
State v. Iacona, 93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001). In other words, the state
must produce evidence that “raises more than a mere suspicion of guilt, but need not
provide evidence proving guilt beyond a reasonable doubt.” A.J.S. at ¶ 42, citing
Iacona at 93. When reviewing the evidence, the juvenile court acts as a gatekeeper
“charged with evaluating whether sufficient credible evidence exists” to warrant
transfer of the case to adult court. Id. at ¶ 42, citing In re A.J.S., 173 Ohio App.3d 171,
2007-Ohio-3216, 877 N.E.2d 997 (10th Dist.). That is to say, the juvenile court must
evaluate the quality of the state’s evidence and any evidence that attacks probable
cause. Iacona at 93. Probable-cause determinations require “a fact-intensive inquiry.”
State v. Davis, 9th Dist. Summit No. 29273, 2020-Ohio-473, ¶ 19; see State v. Young,
10th Dist. Franklin No. 18AP-845, 2019-Ohio-4639, ¶ 20 (“probable cause
determinations are intensely fact-specific”).
{¶27} We note that “[p]robable cause is a flexible concept grounded in fair
probabilities which can be gleaned from considering the totality of the circumstances.”
In re B.W., 2017-Ohio-9220, 103 N.E.3d 266, ¶ 20 (7th Dist.). After all, probable cause
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is “incapable of precise definition” and is a “fluid concept—turning on the assessment
of probabilities in particular factual contexts.” Maryland v. Pringle, 540 U.S. 366, 371,
124 S.Ct. 795, 157 L.Ed.2d 769 (2003), quoting Illinois v. Gates, 462 U.S. 213, 232, 76
L.Ed.2d 527, 103 S.Ct. 2317 (1983). At bottom, “ ‘probable cause is a reasonable ground
for belief of guilt,’ * * * and that the belief of guilt must be particularized with respect
to the person to be searched or seized.” Pringle at 371, quoting Ybarra v. Illinois, 444
U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979).
{¶28} To establish probable cause to believe that R.Z. committed burglary
under R.C. 2911.12(A)(1), the evidence must have demonstrated that R.Z. used “force,
stealth, or deception” to “trespass in an occupied structure * * * when another person
other than an accomplice of the offender is present, with the purpose to commit” a
criminal offense in the structure. The only disputed issue is whether the identification
evidence established probable cause to believe that R.Z. committed the alleged acts.
{¶29} The state contends that the evidence submitted, particularly the lab
report and the BCI notification, were credible and sufficient identification evidence
linking R.Z. to the alleged crime. The state maintains that the DNA evidence from the
knife proved that R.Z. was in the house, and “Johnson did not know R.Z., so that his
DNA was there for an innocuous reason was eliminated as a possibility.” In response,
R.Z. maintains that the state failed to confirm the preliminary association of R.Z. to
the biological evidence collected from the kitchen knife and the evidence fails to
demonstrate that R.Z. was present in the house to commit a criminal offense. We agree
with R.Z. and hold, based on the facts established at the bindover hearing, that the
ambiguous language in the BCI notification was insufficient to establish probable
cause to believe that R.Z. perpetrated the offense.
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{¶30} First, consider the restrained language of the BCI notification. The
notification was merely an “investigative lead.” The notification described the
connection between R.Z. and the biological evidence recovered from the house as a
“preliminary association.” The notification continued and explained that “[a]ny
possible connection or involvement of the individual to the case must be
determined through further investigation.” (Emphasis added.) Still more, the
notification stressed that an additional sample from R.Z. “must be obtained for
verification by the forensic laboratory.”
{¶31} The notification made it clear that “any possible connection or
involvement” of R.Z. to the case “must be determined through further investigation.”
“Any possible connection” is broad. It encompasses probable-cause hearings as well
as verdicts. And Blackwell testified that his investigation of this connection between
R.Z. and the offense consisted of phone calls to R.Z. and his attorney. There was no
testimony that these telephone calls clarified the connection between R.Z. and the
crime. Further, Blackwell testified that the preliminary association between R.Z. and
the biological evidence recovered from the house “has yet to be verified.” This was
simply an investigative lead that did not establish probable cause. And not every
investigative lead will establish probable cause. See State v. Demaria, 11th Dist.
Geauga No. 699, 1977 Ohio App. LEXIS 8360, *4 (June 20, 1977).
{¶32} Second, the record contains no explanation of what the phrase
“preliminary association” means. And the state failed to present any evidence that
defined “preliminary association.” To illustrate the significance of this omission, in a
recent case a BCI “report showed that the DNA of the unknown male in the vaginal
sample was consistent with [the defendant’s] DNA, with a statistic ratio of being rarer
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than one in one trillion unrelated individuals.” State v. Williams, 2d Dist. Clark No.
2021-CA-66, 2022-Ohio-2517, ¶ 23. The report in Williams explained the meaning of
that statistic—“the forensic scientist would have to test more than a trillion other
persons who were not [the defendant]’s identical twin to find someone also matching
that DNA profile.” Id. But here, there was no such explanation. The only evidence in
the record that approaches an explanation is Blackwell’s testimony that he had
“enough probable cause from the DNA sample returned from the Coroner’s office.”
But this is nothing more than a conclusion drawn by Blackwell—it explains nothing.
We recognize that an “officer may draw inferences based on his own experience.”
Ornelas v. United States, 517 U.S. 690, 700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)
(“Deputy Luedke, who over the past nine years had searched approximately 2,000 cars
for narcotics, * * * testif[ied] that a screw in the doorjam adjacent to the loose panel
was rusty, which to him meant that the screw had been removed at sometime.”). But
unlike in Ornelas, there is nothing in the record to which we can defer that
demonstrates Blackwell’s experience or training involving DNA test results. And
significantly, the preliminary association was never verified through further testing.
Without more, a “preliminary association”—a term that is both equivocal and
ambiguous—fails to establish anything more than mere suspicion that R.Z. was
involved. The facts and circumstances established by the state’s evidence in this case
left the juvenile court to speculate the meaning of preliminary association.
{¶33} With DNA, context matters. For decades, the federal government has
warned that “to say that two [DNA profiles] match, without providing any scientifically
valid estimate (or, at least, an upper bound) of the frequency with which such matches
might occur by chance, is meaningless.” National Research Council, DNA Technology
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in Forensic Science 74 (1992). Likewise, courts from around the nation insist on a
quantitative estimation to contextualize the meaning of DNA testing results. See Brim
v. State, 695 So.2d 268, 269-270 (Fla.1997) (“Certainly, a judge’s or juror’s untutored
impression of how unusual a DNA profile is could be very wrong.”); see also State v.
VandeBogart, 136 N.H. 365, 381-382, 616 A.2d 483 (1992); Commonwealth v. Mattei,
455 Mass. 840, 853, 920 N.E.2d 845 (2010) (“Without reliable accompanying
evidence as to the likelihood that the test could not exclude other individuals in a given
population, the jury have no way of evaluating the meaning of the result.”); Duncan v.
Commonwealth, 322 S.W.3d 81, 92 (Ky.2010) (“[M]issing from the Commonwealth’s
proof was any testimony establishing the significance of that partial match”); People
v. Pike, 2016 Il App (1st) 122626, 403 Ill.Dec. 93, 53 N.E.3d 147, 165 (Ill.App.2016)
(“A statistic is necessary to understand the significance of the inclusion as a potential
contributor.”); State v. Phillips, 430 S.C. 319, 335, 844 S.E.2d 651 (2020) (“the State
made almost no effort to educate the trial court on the factual and scientific basis of
Gallman’s opinions”); State v. Terrance Police, 343 Conn. 274, 306, 273 A.3d 211(2022) (“[T]o satisfy the particularity requirement of the fourth amendment, the
affidavit accompanying a John Doe DNA arrest warrant application must contain
information assuring the judicial authority issuing the warrant that the DNA profile
identifies the person responsible for the crime on the basis of his or her unique DNA
profile and should include information as to the statistical rarity of that DNA profile.”).
While these cases address issues not relevant in this case, they demonstrate a
widespread acceptance of the need to contextualize DNA testing results to avoid
relying on inferences and speculation.
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{¶34} An Ohio court has held that an investigating officer’s testimony and
sworn statement that a defendant’s DNA was found on a sexual-assault survivor based
on a BCI notification, which indicated that a “preliminary association” existed between
the defendant and profiles recovered from a rape kit, was not demonstrably false and
provided probable cause to arrest the defendant. See State v. Goins, 10th Dist.
Franklin No. 14AP-747, 2015-Ohio-3121, ¶ 21-22. The trial court in Goins noted that
the lack of a full investigation did not diminish the evidentiary value, “particularly in
the context of this specific crime.” Id. at ¶ 18. In Goins, the state presented testimony
from two BCI witnesses and from the investigating officer, who testified “that he
sought the arrest warrant for appellant based on the June 7, 2013 BCI notification
stating that appellant’s DNA was found in C.G.’s vaginal area.” Id. at ¶ 18, 21-22. But
here, BCI witnesses did not provide any testimony. And Blackwell, the only state’s
witness at the bindover hearing, provided no context or explanation about what the
“preliminary association” meant. And in this case the biological evidence recovered
from the knife contained “a mixture of DNA from at least three individuals” in contrast
to the simple-source mixture in Goins. Id. at ¶ 6. Thus, it makes sense that the BCI
notification warned that “[a]ny possible connection or involvement of the individual
to the case must be determined through further investigation.”
{¶35} Contrary to the dissent’s argument, we are not asking for proof beyond
a reasonable doubt. Rather, there must be something in the record to discern the
meaning of highly technical evidence presented by the state to demonstrate the
existence of probable cause. Here, the juvenile court was afforded nothing to
extrapolate the significance of the notification or contextualize “preliminary
association.” Blackwell recited the language of the BCI report stated and testified a “hit
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OHIO FIRST DISTRICT COURT OF APPEALS
came back,” which he later explained was a “preliminary hit.” Neither Blackwell’s
testimony, nor the notification, established that the association—or hit—was anything
more than preliminary in nature. The BCI notification failed to identify which profile
from the three-individual mixture was preliminarily associated with R.Z. The state
provided no accompanying statistical weight or explanation of a preliminary
association, leaving the court to hypothesize the meaning of the BCI notification. See,
e.g., Ornelas, 517 U.S. at 700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (“to Officer Luedke, who
had searched roughly 2,000 cars for narcotics, [a loose panel and rusty screw]
suggested that drugs may be secreted inside the panel”); see also Williams, 2d Dist.
Clark No. 2021-CA-66, 2022-Ohio-2517, at ¶ 23 (“This report showed that the DNA of
the unknown male in the vaginal sample was consistent with Williams's DNA, with a
statistic ratio of being rarer than one in one trillion unrelated individuals.”). So, while
the notification instructed that “[a]ny possible connection or involvement of the
individual to the case must be determined through further investigation,” the state
failed to present evidence that a further investigation linked “any possible”
involvement of R.Z. to the offense.
{¶36} Nothing in this opinion diminishes the probative value of DNA test
results. Nor do we question the reliability of CODIS or SDIS. We simply conclude that
courts, untrained in forensic sciences, should not be left to divine the meaning from
the words “preliminary association.”
{¶37} Nor do we believe that this opinion will frustrate the state’s ability to
investigate crimes through DNA testing or impede the state’s ability to secure a search
warrant for further DNA testing. We recognize that probable cause for searches and
seizures “are measured by similar objective standards” which demands “the same
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OHIO FIRST DISTRICT COURT OF APPEALS
quantum of evidence.” (Emphasis added.) Greene v. Reeves, 80 F.3d 1101, 1106 (6th
Cir.1996), quoting 1 Wayne R. LaFave, Search and Seizure: A treatise on the Fourth
Amendment, Section 3.1(b), 544 (1996). But this “standard applies differently in
different contexts” with distinct inquiries for courts and law enforcement. United
States v. Baker, 976 F.3d 636, 645 (6th Cir.2020). For a search, the inquiry focuses on
whether “there is a fair probability that evidence of a crime will be found” on the
person specified. State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d
638, ¶ 35; see State v. Johnson, 7th Dist. Mahoning No. 17 MA 0099, 2018-Ohio-2780,
¶ 15. In contrast, probable cause in a bindover hearing, like probable cause to arrest,
asks whether the “facts and circumstances [are] sufficient to warrant a prudent man
in believing that the suspect had committed or was committing an offense.” (Internal
citations omitted.) State v. Jordan, 166 Ohio St.3d 339, 2021-Ohio-3922, 185 N.E.3d
1051, ¶ 19; see Iacona, 93 Ohio St.3d at 93, 752 N.E.2d 937.
{¶38} This distinction is critical because “ ‘there may be probable cause to
search without probable cause to arrest, and vice-versa.’ ” Greene at 1106, quoting
LaFave at 546. Thus, while the facts of this case compel us to hold that the state failed
to establish probable cause at the bindover hearing, our holding does not affect the
state’s ability to investigate crimes through DNA testing or secure a search warrant for
further testing.
III. Conclusion
{¶39} We hold that the juvenile court had jurisdiction over R.Z. because he
was a child under R.C. 2152.02 when he was apprehended before his 21st birthday for
conduct that occurred before his 18th birthday. The state exercised its statutory right
of appeal under R.C. 2945.67(A). And the juvenile court’s order was a final, appealable
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OHIO FIRST DISTRICT COURT OF APPEALS
order under R.C. 2505.02. Finally, we overrule the state’s single assignment of error
and affirm the juvenile court’s judgment.
Judgment affirmed.
BERGERON, J., concurs.
MYERS, P.J., concurs in part and dissents in part.
MYERS, P.J., concurring in part and dissenting in part.
{¶40} I agree with the majority’s holding that this court has jurisdiction to
hear this case. But because I would hold that the trial court erred in determining that
there was not probable cause to believe that R.Z. committed the offense, I dissent.
{¶41} The test for establishing probable cause in a bindover is the same test to
establish probable cause to arrest, that is, whether the facts and circumstances were
sufficient to warrant a prudent person in believing that the defendant committed an
offense. See State v. Billings, 1st Dist. Hamilton Nos. C-200245 and C-200246, 2021-
Ohio-2194, ¶ 19; State v. Iacona, 93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001). As the
majority correctly recognizes, the test for probable cause is something short of beyond
a reasonable doubt, but more than a mere suspicion. Iacona at 93; State v. Smith, Slip
Opinion No. 2022-Ohio-274, ¶ 39. In other words, there must be facts that elevate R.Z.
as the possible perpetrator of the offense beyond mere suspicion into the realm of
more probable than not. And it is important to remember that “[p]robable cause is a
lesser standard of proof than that required for a conviction, such as proof beyond a
reasonable doubt or by a preponderance of the evidence.” State v. Norman, 4th Dist.
Ross Nos. 08CA3059 and 08CA3066, 2009-Ohio-5458, ¶ 26. A prima facie showing
of criminal activity is not necessary to establish probable cause; rather, probable cause
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OHIO FIRST DISTRICT COURT OF APPEALS
requires instead “a showing that a probability of criminal activity exists.” Id., quoting
State v. Young, 146 Ohio App.3d 245, 254, 765 N.E.2d 938 (11th Dist. 2001).
{¶42} What do we have here? At the time the offense was committed, DNA
was recovered from various items in the victim’s home, including a knife that belonged
to the victim. The recovered DNA was entered into a data base. Years later, after R.Z.
was arrested on another charge, his DNA was entered into the CODIS system, and a
hit came back linking R.Z.’s DNA to the DNA recovered from the victim’s knife.
Detective Blackwell testified that a hit came back linking the DNA on the knife to R.Z.
and that a preliminary association was made between the tested DNA on the knife and
R.Z. We also have the testimony of the victim that she did not know R.Z. and that there
was no reason for him to have been in her home.
{¶43} In my opinion, this was sufficient to establish probable cause that R.Z.
had committed the offense. Such a determination is supported by State v. Goins,
which, as recognized by the majority, found that a BCI notification indicating that a
“preliminary association” existed between the defendant and profiles recovered from
a rape kit provided probable cause to arrest the defendant. Goins, 10th Dist. Franklin
No. 14AP-747, 2015-Ohio-3121, at ¶ 22. The majority attempts to distinguish Goins
from the case before us based on a finding that the DNA in Goins concerned a simple-
source mixture, whereas the biological evidence recovered from the knife in this case
contained “a mixture of DNA from at least three individuals.” See majority opinion at
¶ 34. However, a case summary sheet accompanying the complaint filed by Detective
Blackwell indicated that:
On February 10, 2016 the Hamilton County Crime Laboratory released
an ‘official crime laboratory report’ stating that a DNA profile was
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OHIO FIRST DISTRICT COURT OF APPEALS
identified from the swabs of the kitchen knife from at least three
individuals. From this mixture a major and minor DNA profiles [sic]
were identified. The major DNA profile originaled [sic] from a male
individual and the minor had limited value for comparions [sic]
purposes. The major DNA profile obatained [sic] from the swab was
entered into the local (CODIS) Combined DNA index system.
On 1/13/2021 The Hamilton County Coroner’s Laboratory Bureau of
Criminal Investigation released a report stating the (SDIS) Ohio State
DNA index system, association was made between the Coroner’s
Laboratory specimen and [R.Z.].
{¶44} So it is clear that the DNA obtained from the knife that had a
preliminary association to R.Z. was the major DNA profile found on the knife. As the
case summary makes clear, the minor DNA profile obtained from the knife had limited
value for the purpose of DNA comparison and was not entered into the CODIS
database. I therefore find the majority’s attempt to distinguish Goins unpersuasive,
and would hold that in this case, like Goins, evidence that a preliminary association
was made between the tested DNA on the knife and R.Z. was sufficient to establish
probable cause.
{¶45} The majority argues that because the BCI notice used the words
“preliminary association” to describe the match between R.Z.’s DNA entered into the
system and the DNA found on the knife, and because there was not a further sample
taken from R.Z. to confirm his DNA, the evidence was insufficient to rise to the level
of probable cause. I strongly disagree, and question that if a DNA hit does not provide
probable cause, then what does? First, even if there was only a preliminary association
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OHIO FIRST DISTRICT COURT OF APPEALS
between R.Z.’s DNA and the sample taken from the knife, this is sufficient to rise above
mere suspicion. R.Z. was physically linked to the knife. In addition, as the majority
stresses, the notice does say that any possible connection or involvement of R.Z. to the
case needed to be determined through further investigation. And that is certainly true.
A DNA hit by itself does not tell anything about the crime, including who committed
it. It tells us only that the DNA found on the knife has been preliminarily identified as
the DNA of R.Z. In other words, the police must take further steps to investigate the
crime and ultimately establish whether R.Z. committed the offense. For example, there
may be other explanations as to why his DNA was at the scene, all of which are
unknown to BCI. Perhaps R.Z. was a friend of the victim. Perhaps the knife belonged
to someone who brought it to the victim’s home (and R.Z.’s DNA was present for an
innocent reason). Perhaps there was transfer DNA. The language in the BCI notice was
simply intended to convey that there must be further investigation to connect R.Z. to
the particular case being investigated. It says further investigation is necessary to tie
him to the case, not to tie him to the DNA. The language does not suggest that probable
cause is lacking in the absence of such further investigation. And here, much of that
investigation had already been done.
{¶46} The fact that further investigation is necessary is not unique to this case.
Take for example a case involving an unknown rapist. Under this hypothetical, assume
that a rape was committed, and a DNA sample was obtained from the victim’s body
and entered into CODIS. Several years later, a suspect is arrested on an unrelated
crime and that suspect’s DNA is taken and also entered into CODIS. A hit comes back
identifying a preliminary association between the suspect’s DNA and the DNA
obtained from the rape victim. I would find that this preliminary association is
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OHIO FIRST DISTRICT COURT OF APPEALS
sufficient to establish probable cause to obtain both an arrest warrant for the
underlying crime of rape and a search warrant to obtain a DNA swab from the suspect.
But further investigation is necessary to establish that the suspect committed the rape.
Perhaps that investigation would establish that the suspect and the victim had engaged
in consensual sex. Regardless of whether further investigation is necessary to establish
a suspect’s involvement in the case, probable cause still existed. As in this case,
probable cause to arrest is not lacking in the absence of further investigation. See
Goins, 10th Dist. Franklin No. 14AP-747, 2015-Ohio-3121.
{¶47} The majority also relies on the statement in the BCI notice that an
additional sample must be obtained to confirm that R.Z. is the person whose DNA was
entered into the system. In other words, the lab needs to verify R.Z. from a known
sample from him, and not rely solely on the name entered into the system. Again,
ultimately verifying that the R.Z. whose DNA is in the system is the R.Z. whose DNA
is on the knife would be required to prove identity beyond a reasonable doubt. But I
would find that such verification is not necessary to establish probable cause. We are
out of the realm of suspicion and into the realm of probability.
{¶48} Finally, the detective testified there was a preliminary association
between the tested DNA on the knife and R.Z. This testimony from an experienced
officer constituted evidence that elevated R.Z. as the possible perpetrator of the
offense beyond mere suspicion into the realm of more probable than not. See Norman,
4th Dist. Ross Nos. 08CA3059 and 08CA3066, 2009-Ohio-5458, at ¶ 29-30 (where a
DNA profile was established from evidence collected at the crime scene and was
entered into the CODIS database and a hit was received linking that profile to
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OHIO FIRST DISTRICT COURT OF APPEALS
defendant, there was probable cause to obtain an oral swab from defendant to confirm
the DNA match).
{¶49} The majority seems to suggest that to rise to the level of probable cause,
either the BCI notice had to “identify which profile from the three-individual mixture
was preliminarily associated with R.Z.,” or the state had to provide “statistical weight
or explanation of a preliminary association” so that the trial court did not have to
“hypothesize the meaning of the BCI notification.” As to the first, the initial charging
document from Detective Blackwell makes clear that only the major DNA profile was
entered into CODIS. Thus, the profile from the mixture was identified as being
associated with R.Z.; it was the only profile entered. As to the second, I reject this
proposition. First, the BCI notice is not a lab report. It is a notification that DNA
entered into the CODIS system matched DNA previously entered into that same
system. BCI is not the laboratory that analyzed the DNA on the knife, and it did not
independently evaluate the DNA. It simply reported a match in its system. See State
v. Williams, 6th Dist. Lucas No. L-12-1238, 2015-Ohio-405, ¶ 110 (“A DNA sample is
not the same as a DNA profile, as a DNA sample is processed by a specialist in order
to obtain the DNA profile.”). At trial, presumably, the lab would do a report and
provide expert testimony. In an ideal world, would it have been nice to have all this
information before a probable-cause hearing? Of course it would. But that does not
mean the evidence presented was insufficient to establish probable cause.
{¶50} Second, the majority relies on criticisms of DNA evidence. While these
criticisms may be the subject of expert testimony or cross-examination at trial, they
do not affect a determination as to whether probable cause existed. And, the cases
relied upon by the majority speak to proof at trial, not initial probable cause. As the
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OHIO FIRST DISTRICT COURT OF APPEALS
Supreme Court of Ohio has made clear, the inquiry is not one of proof beyond a
reasonable doubt. See Iacona, 93 Ohio St.3d at 93, 752 N.E.2d 937; Smith, Slip
Opinion No. 2022-Ohio-274, at ¶ 39.
{¶51} Under the majority’s reasoning, because the BCI notification is
insufficient to establish probable cause, law enforcement could not get a warrant to
get a swab from R.Z. in order to confirm that the DNA was a match. They would have
no probable cause to support the warrant. To the contrary, I would find that there
would be probable cause to obtain a warrant for a DNA swab under these facts. See
Williams at ¶ 112 (BCI notification of a CODIS match identifying defendant as a major
contributor and explaining that further testing was required provided probable cause
to obtain a sample of defendant’s DNA). In fact, Detective Blackwell testified that he
had already obtained a search warrant, “ready to go and signed by the judge,” to get a
DNA sample from R.Z, but that he had not yet made contact with R.Z. to execute it.
So, in this case, an independent magistrate already determined that probable cause
existed from the CODIS hit to allow a swab from R.Z. As I understand the majority’s
position, had this warrant been executed and R.Z.’s DNA confirmed, this would have
constituted probable cause for the bindover. I would argue that this step is not
required to establish probable cause. Going back to my rape example, I believe that
once a DNA hit is made, probable cause exists to believe the suspect committed the
rape.
{¶52} The majority argues that its holding will not impact the state’s ability in
future cases to secure a search warrant for DNA testing because the probable-cause
standard is applied differently in different contexts, and that probable cause to obtain
a search warrant focuses on whether a fair probability exists that evidence of a crime
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OHIO FIRST DISTRICT COURT OF APPEALS
will be found, whereas probable cause to bind over a juvenile focuses on whether a
prudent person would believe that the juvenile had committed, or was committing, an
offense. I hope the majority is correct in its analysis of the application of the probable-
cause standard in different contexts, but I fear it is not.
{¶53} In fact, Greene v. Reeves, 80 F.3d 1101, 1106 (6th Cir.1996), relied upon
by the majority in support of its argument, gives credence to my concern that under
the majority’s reasoning, law enforcement would not be able to obtain a search warrant
to swab R.Z.’s DNA. In Greene, a case that focused on whether defendants were
entitled to qualified immunity, the court discussed the difference between probable
cause to arrest and probable cause to search, stating that:
While the focus of the two tests is of course different—whether the
person has committed a crime or whether evidence of a crime will be
found—the prudent person standard is the same. Professor LaFave
notes that “it is generally assumed by the Supreme Court and the lower
courts that the same quantum of evidence is required whether one is
concerned with probable cause to arrest or probable cause to search.”
1 LaFave, supra, § 3.1(b), at 544 (emphasis added). LaFave recognizes
that the focus of the arrest inquiry is different from that of the search
inquiry and acknowledges that “there may be probable cause to search
without probable cause to arrest, and vice-versa.” Id. at 546. Here, both
findings must ultimately stand or fall on the same evidence. If it was
reasonable to obtain a search warrant, it had to be equally reasonable to
obtain the arrest warrant.
Id. at 1106.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶54} In this case, like Greene, both findings of probable cause to arrest and
probable cause to obtain a search warrant for a DNA swab “must ultimately stand or
fall on the same evidence.” See id. This is particularly true in most cases involving DNA
evidence. And because Detective Blackwell was able to obtain a search warrant to swab
R.Z.’s DNA, which he obtained after establishing probable cause, there necessarily also
existed probable cause to believe that R.Z. committed the burglary charged in this
case. In other words, the DNA hit established both that evidence of the crime was likely
to be found on R.Z.’s person and that he likely committed the burglary. In this case,
any distinction between the two probable causes is a distinction without a difference.
{¶55} In this case, like countless other DNA “hit” cases, the probable cause to
believe that R.Z. committed the burglary is based on exactly the same facts and
evidence as the probable cause to believe the DNA found on his person will be a match
to the DNA on the knife. If, as the majority suggests, there is not sufficient probable
cause to believe R.Z. committed the crime based on the DNA hit, then there is not
probable cause to believe evidence will be found in his swab.
{¶56} Because I believe the evidence presented, particularly the DNA hit in
CODIS coupled with the testimony from the victim that there was no reason for R.Z.
to have been in her home handling her knife, established probable cause, I would
reverse the trial court’s judgment.
28