[Cite as State v. Rich,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2012-03-044

: OPINION - vs - 3/11/2013 :

ARON LAURENCE RICH, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2011-09-1434

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Strauss Troy Co., LPA, Martin S. Pinales, Candace C. Crouse, Federal Reserve Bldg., 150 East Fourth Street, Cincinnati, Ohio 45202, for defendant-appellant

RINGLAND, J.

{¶ 1} Defendant-appellant, Aron Laurence Rich, appeals from his conviction in the

Butler County Common Pleas Court for complicity to trafficking in cocaine, trafficking in

cocaine, possession of cocaine and a major drug offender specification. For the reasons that

follow, we affirm Rich's conviction.

{¶ 2} On August 27, 2011, Hamilton Police Detective Joey Hamilton was investigating Butler CA2012-03-044

a drug operation involving Rich and several others, including Daniel Rodriguez Rubio (Rubio)

and Santiago Ayon-Sanchez (Sanchez), when he received information from a confidential

informant (CI) that Rubio was waiting on a drug shipment to come into the area, that Rubio

wanted the CI to rent a vehicle to be used in a drug transaction, and that Sanchez was going

to be flown in from Los Angeles to participate in the transaction.

{¶ 3} Upon receiving this information, Detective Thompson rented a Chevy HHR and

attached a magnetic Global-Positioning-System (GPS) tracking device underneath the

vehicle's rear bumper to allow the detective to monitor the vehicle's movements via a GPS

website and relay this information to his fellow police officers who would be conducting

physical surveillance of the vehicle. Detective Thompson then transferred the vehicle to the

CI. The CI used the HHR to pick up Rubio, and the two of them drove to the Dayton airport

and picked up Sanchez, and then the three of them returned to Hamilton. The police had

outfitted the CI with a wire, and therefore his conversations with Rubio and Sanchez were

recorded.

{¶ 4} On August 29, 2011, Rich, along with Horacio Bernabe and Bhoj Ghale,

traveled in a Chevy Aveo to the Wal-Mart on Cincinnati-Dayton Road, Butler County, Ohio

(the Butler County Wal-Mart) and went inside the store. Shortly thereafter, Rubio and

Sanchez, traveling in the HHR that Detective Thompson had provided to the CI, arrived at the

Butler County Wal-Mart. Surveillance video from the store's parking lot shows that Rich,

Bernabe and Ghale arrived at 6:11 p.m.; Rubio and Sanchez arrived nine minutes later.

{¶ 5} At 6:38 p.m., Rich, Bernabe and Ghale walked back to the Aveo in which they

had arrived. After the three shook hands, Bernabe and Ghale got into the Aveo, while Rich

entered the HHR that had been driven there by Rubio and Sanchez. Then the two vehicles

left the Butler County Wal-Mart, with Bernabe and Ghale leaving together in the Aveo and

Rich leaving, alone, in the HHR. Surveillance video from inside the Butler County Wal-Mart -2- Butler CA2012-03-044

showed that Rubio and Sanchez were still in the store at the time Rich left in the HHR.

{¶ 6} Cincinnati Police Officer Dan Kowalski, who was wearing plain clothes and

driving an unmarked vehicle, was conducting physical surveillance of the suspects at the

Butler County Wal-Mart. When Officer Kowalski saw Rich get into the HHR and drive away,

he and several of his fellow officers began following Rich in the HHR and Bernabe and Ghale

in the Aveo, as those two vehicles drove south into Hamilton County, Ohio and exited the

highway onto Glendale-Milford Road, at which time the HHR and Aveo split up into different

directions.

{¶ 7} Cincinnati Police Officer Colleen Deegan, who was also conducting physical

surveillance of the suspects, saw the HHR drive near to the Wal-Mart on Glendale-Milford

Road, Hamilton County, Ohio (Hamilton County Wal-Mart), and then saw the HHR execute

an illegal U-turn and head in the opposite direction on I-75 North. Officer Deegan saw that

the HHR was being driven by a white male. Rich is white; Bernabe and Ghale, like Rubio

and Sanchez, are Hispanic.

{¶ 8} About 20 minutes later, Officer Deegan saw the HHR with the white male driver

return to the Hamilton County Wal-Mart. The surveillance video from the Hamilton County

Wal-Mart shows that at 7:17 p.m., Rich parked the HHR, got out and went inside the store.

At 7:31 p.m., Rubio and Sanchez arrived at the store in Rubio's Lincoln Continental. Several

minutes later, Rubio entered the HHR, which had been driven there by Rich, while Sanchez

returned to the Lincoln. Rich, Bernabe and Ghale got into the Aveo. All three vehicles left

the Hamilton County Wal-Mart, and shortly thereafter, all three vehicles were stopped by the

police.

{¶ 9} No drugs were found in the Lincoln, which had been driven to the Hamilton

County Wal-Mart by Rubio and then was driven away from that store by Sanchez, who was

driving the vehicle at the time it was stopped. However, eight kilos of cocaine were found -3- Butler CA2012-03-044

inside a toolbox in the back of the HHR, which was being driven by Rubio at the time it was

stopped by police. An additional two kilos of cocaine were later discovered in Rich's storage

locker in a storage facility located on East Kemper Road, Hamilton County, Ohio. The street

value of all the cocaine recovered was estimated to be $1.2 million dollars.

{¶ 10} The police discovered the cocaine in Rich's storage locker as a result of

information they gathered from the GPS tracking device attached to the HHR. The police

learned from the tracking device that after the HHR made the illegal U-turn witnessed by

Officer Deegan, the vehicle traveled to the storage facility on East Kemper Road and stayed

there for approximately ten minutes. The police learned from the storage facility's manager

Amberlie Lawson that Rich had the rented storage locker in 2010 and that Lawson

recognized Rich because he often came to his storage locker. After a drug dog "alerted" on

Rich's storage locker, the police obtained a search warrant for the locker. When the police

executed the warrant, they discovered two toolboxes that contained cocaine and crack

cocaine. The police also found fingerprints on one of the toolboxes that were later

determined to be Rich's fingerprints.

{¶ 11} An 11-count indictment was handed down against Rubio, Rich and Sanchez,

charging them with various counts of complicity to trafficking in cocaine, trafficking in cocaine

and possession of cocaine, with a major drug offender specification attached to each count.

Five of the 11 counts in the indictment were directed at Rich, who was indicted on one count

of complicity to trafficking in cocaine (Count Four), two counts of trafficking in cocaine

(Counts Five and Seven), and two counts of possession of cocaine (Count Six and Eight),

with a major drug offender specification attached to each of those five counts. Rubio and

Sanchez subsequently entered into plea bargains with the state, while Rich chose to proceed

to trial.

{¶ 12} Prior to trial, Rich moved to suppress the evidence seized by police as a result -4- Butler CA2012-03-044

of their warrantless use of the GPS tracking device to monitor the movements of the HHR

that he drove on the day in question. Rich asserted that the police's warrantless use of the

tracking device violated his Fourth Amendment rights against unreasonable searches and

seizures.

{¶ 13} A hearing was held on Rich's motion to suppress, at which Detective Thompson

testified for the state and Rich testified for the limited purpose of establishing that he had

standing to bring a Fourth Amendment challenge to the police's warrantless use of the GPS

tracking device. Rich testified that he received permission to use the HHR from one of his

co-conspirators, Bernabe, but acknowledged that he did not know from whom Bernabe had

received permission to use the vehicle.

{¶ 14} At the close of the hearing, the trial court overruled Rich's motion to suppress

for two reasons:

{¶ 15} First, the trial court, citing Rakas v. Illinois,

,

(1978),

noted that a defendant must have standing in order to challenge the constitutionality of a

search or seizure; that nonowners of a vehicle generally do not have standing to raise such a

challenge; and that even if a defendant is legitimately present in a vehicle, that fact does not

necessarily give the defendant a legitimate expectation of privacy. The trial court found that

the question of whether a person has a legitimate expectation of privacy turns on the facts

and circumstances of each case, and that under the facts and circumstances of this one,

Rich did not have a reasonable expectation of privacy in the HHR since he had obtained

possession of that vehicle "several times removed" from the person who had rented it, i.e.,

Detective Thompson.

{¶ 16} Second, the trial court noted that leaving aside the issue of whether or not Rich

had standing to challenge the constitutionality of the police's warrantless use of a GPS

tracking device, the police did not need to obtain a warrant to install and use the GPS -5- Butler CA2012-03-044

tracking device on the HHR to track the vehicle's movements, given this court's decision in

State v. Johnson,

,

(12th Dist.). Following Rich's

conviction, this court's decision in Johnson was vacated by the Ohio Supreme Court in State

v. Johnson,

,

.

{¶ 17} Several days later, the trial court overruled Rich's motion to compel the state to

produce "all officer notes and summaries of actions taken in furtherance of the investigation

of this matter by law enforcement." Rich's motion was made in response to the defense's

having seen Detective Thompson refer to certain written notes during his testimony at the

suppression hearing. The notes related to Detective Thomson's investigation of Rich and his

co-conspirators. The trial court overruled the motion to compel, finding that the notes were

"work product" and thus were exempt from disclosure under Crim.R. 16(J)(1).

{¶ 18} At Rich's three-day jury trial, the state presented testimony from a number of

witnesses, including Detective Thompson and his fellow officers who followed and then

arrested Rich on the day in question. The state also presented testimony from its fingerprint

expert, Detective Mark Henson, who testified that the fingerprints found on one of the

toolboxes in Rich's storage locker were Rich's fingerprints. The jury acquitted Rich of one

count of trafficking in cocaine and one count of possession of cocaine, but convicted him of

the remaining charges and specifications. The trial court sentenced Rich to serve ten years

in prison and to pay a $10,000 fine.

{¶ 19} Rich now appeals, assigning the following as error:

{¶ 20} Assignment of Error No. 1:

{¶ 21} THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO

SUPPRESS.

{¶ 22} Assignment of Error No. 2:

{¶ 23} THE TRIAL COURT ERRED IN DENYING RICH'S CRIM.R. 29 MOTION FOR -6- Butler CA2012-03-044

ACQUITTAL.

{¶ 24} Assignment of Error No. 3:

{¶ 25} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

EXCLUDE THE STATE'S EXPERT WITNESS AT TRIAL.

{¶ 26} Assignment of Error No. 4:

{¶ 27} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

REQUIRE THE STATE TO TURN OVER A POLICE REPORT PRIOR TO TRIAL.

{¶ 28} In his first assignment of error, Rich argues the trial court erred in denying his

motion to suppress from evidence any information gathered by police through their

warrantless use of the GPS tracking device they installed on the HHR. Rich asserts that

contrary to what the trial court held, he did have standing to challenge the warrantless use of

a GPS device to track the HHR's movements because he had permission to drive the HHR.

He cites several cases in support of his argument, including State v. Brooks, 12th Dist. No.

CA99-01-002 (Dec. 6, 1999); and State v. Mack, 6th Dist. No. S-95-030,

, *3

(Jan. 19, 1996).

{¶ 29} Rich further argues the trial court erred when it found that even if he had

standing to raise a constitutional challenge to the warrantless installation and use of a GPS

tracking device on the HHR, the police still were not required to obtain a warrant prior to

using the GPS tracking device to monitor the vehicle's movements, given this court's decision

in Johnson,

,

. Rich contends that United States v.

Jones, __ U.S. __,

(2012) "suggests that the [United States Supreme] Court is

leaning toward concluding that the use of GPS technology to monitor a person's movements

on public streets is a search under the Fourth Amendment." (Emphasis sic.) Therefore, Rich

requests that this court find that the police's warrantless use of a GPS tracking device on the

HHR to track the vehicle's movements was "an unconstitutional violation of [his] Fourth -7- Butler CA2012-03-044

Amendment rights, requiring suppression of all evidence gathered against him as 'fruits of the

poisonous tree.'"

{¶ 30} In Johnson, the police attached a GPS tracking device to the undercarriage of a

van owned by Johnson, a suspected drug trafficker. The officers placed the GPS tracking

device on Johnson's van while it was parked at his home. The officers' use of the tracking

device led to Johnson's arrest for drug trafficking. Johnson moved to suppress the evidence

seized from him, arguing the warrantless installation and use of a GPS tracking device

violated his Fourth Amendment rights against unreasonable searches and seizures. The trial

court overruled the motion, and Johnson was convicted.

{¶ 31} On direct appeal, we affirmed the trial court's denial of Johnson's motion to

suppress. This court held that a criminal defendant does not have a reasonable expectation

of privacy in the undercarriage of his vehicle and that "placing the GPS on Johnson's van and

monitoring its movements did not constitute a search or seizure under either the federal or

Ohio constitutions." However, our decision in Johnson was vacated by the Ohio Supreme

Court, which remanded the cause to the Butler County Common Pleas Court for application

of the United States Supreme Court's decision in Jones,

. State v. Johnson,

,

.

{¶ 32} In Jones, the United States Supreme Court held that the government's

attachment of a GPS tracking device to a vehicle and its subsequent use of that device to

monitor the vehicle's movements on public streets, constitutes a "search," for purposes of the

Fourth Amendment. Id. at 949. Rich acknowledges that Jones cannot be viewed as

controlling in this case, since Jones involved a "classic trespassory search," see id. at 954, in

which the government attached a GPS device to a vehicle registered to the wife of the

defendant in that case, Jones. Jones' wife who had given him permission to drive the

vehicle, and the government acknowledged that Jones was the "exclusive driver" of the -8- Butler CA2012-03-044

vehicle, and the defendant was in possession of the vehicle at the time the device was

attached. Id. at 948.

{¶ 33} In this case, by contrast, the police installed the GPS tracking device on the

HHR before Rich took possession of the vehicle, and therefore there was no trespass in this

case. Nevertheless, Rich argues the Jones court recognized that "trespass" is not the

exclusive test for determining whether a Fourth Amendment violation occurred and that under

Jones, situations involving merely the transmission of electronic signals without trespass

remain subject to the analysis called for by Katz v. United States,

,

(1967).

{¶ 34} The Katz approach to whether Fourth Amendment protections apply in a given

circumstance involves a two-part inquiry: (1) whether the individual exhibited a subjective

expectation of privacy, and (2) whether the individual's subjective expectation of privacy is

one that society is prepared to recognize as reasonable. See United States v. Knotts,

,

(1983) (discussing Katz).

{¶ 35} Rich argues he had a subjective expectation of privacy that the police would not

use a GPS tracking device to track his every move and that his subjective expectation of

privacy should be recognized by society as an objectively reasonable one. We disagree.

The facts show that Rich received permission to use the HHR from one of his co-

conspirators, Bernabe, who had received permission to use the vehicle from another of their

co-conspirators, Rubio, who had received permission to use the vehicle from the CI, who had

received the vehicle from Detective Thompson. We agree with the trial court that under

these circumstances in which Rich was "several times removed" from the person who rented

the vehicle, i.e., Detective Thompson, Rich did not have an objectively reasonable

expectation of privacy in the vehicle.

{¶ 36} There is an additional reason for upholding the trial court's ruling in this case. -9- Butler CA2012-03-044

In Davis v. United States, __ U.S. __,

(2011), the court held that

"searches conducted in objectively reasonable reliance on binding appellate precedent are

not subject to the exclusionary rule." (Emphasis added.) In so holding, the United States

Supreme Court relied on the "good faith" exception to the exclusionary rule set forth in United

States v. Leon,

,

(1984) and its progeny. Relying on

Davis, other courts have found that the good-faith exception, as discussed in Davis, will apply

where binding appellate precedent had previously authorized warrantless GPS monitoring.

See, e.g., United States v. Aquilar, D.Idaho No. 4:11-cr-298-BLW,

(May 7,

2012); and United States v. Heath, D.Mont. No. CR 12-4-H-DWM,

(May 3,

2012).

{¶ 37} In this case, there was "binding appellate precedent" that previously authorized

warrantless GPS monitoring in this appellate district, namely, our decision in Johnson. Our

decision in Johnson was adopted by the First District in State v. Winningham, 1st Dist. No. C-

110134,

, which like Johnson, was later vacated by the Ohio Supreme Court

and remanded to the Hamilton County Common Pleas Court for application of Jones. State

v. Winningham,

,

.

{¶ 38} Rich points out that there were other appellate districts in this state that

disagreed with our decision in Johnson; that the issue of whether or not warrantless GPS

monitoring was constitutional had been appealed to the Ohio Supreme Court; and that Jones

was pending before the United States Supreme Court at the time Rich was being tried in this

case. However, the police in this district had both a right and a duty to follow this court's

decision in Johnson until it was overruled by a higher court, which did not occur until after

Rich was convicted and sentenced in this case. As a result, we find that the "good-faith" or

"binding appellate precedent" exception set forth in Davis applies to this case, and therefore

this case is not subject to the exclusionary rule. Accordingly, the trial court did not err in - 10 - Butler CA2012-03-044

overruling Rich's motion to suppress.

{¶ 39} In light of the foregoing, Rich's first assignment of error is overruled.

{¶ 40} In his second assignment of error, Rich asserts that the trial court erred in

denying his Crim.R. 29 motion for acquittal because the state failed to prove beyond a

reasonable doubt that Butler County was the proper venue for trial on any of the counts with

which he was charged and convicted. This argument lacks merit.

{¶ 41} In reviewing a trial court's denial of a Crim.R. 29 motion for acquittal, this court

applies the same standard used for determining whether a conviction is supported by

sufficient evidence, i.e., we examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant's guilt beyond a

reasonable doubt. State v. Roy, 12th Dist. No. CA2009-06-168,

, ¶ 29; and

State v. Hibbard, 12th Dist. Nos. CA2001-12-276, CA2001-12-286,

, ¶ 9.

"After viewing the evidence in a light most favorable to the prosecution, the relevant inquiry is

whether any rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt."

citing State v. Jenks,

, paragraph two of

the syllabus.

{¶ 42} Article I, Section 10 of the Ohio Constitution requires a criminal defendant to be

tried in "the county in which the offense is alleged to have been committed." R.C. 2901.12(A)

provides that venue lies in any jurisdiction in which an offense or any element thereof is

committed. Although venue is not a material element of an offense, it is a fact that the state

must prove at trial beyond a reasonable doubt unless waived. State v. Draggo,

(1981). "For venue to be proper there must be a 'significant nexus' between

one or more of the elements of an offense and the county in which the charge is brought."

{¶ 43} R.C. 2925.02(A)(3) prohibits a person from preparing a controlled substance for - 11 - Butler CA2012-03-044

shipment. The state presented ample evidence at trial to show that the planning and

preparation for Rich's crimes of conspiracy to trafficking in cocaine, trafficking in cocaine, and

possession of cocaine took place in Butler County. The state's evidence showed that the

HHR Rich drove was rented in Butler County. Moreover, Rich's actions that culminated in his

convictions were part of a "course of criminal conduct," under R.C. 2901.12(H). While Rich's

crimes may have been finished in Hamilton County, they were started in Butler County, and

therefore Butler County was a proper venue for Rich's trial.

{¶ 44} Therefore, Rich's second assignment of error is overruled.

{¶ 45} In his third assignment of error, Rich argues the trial court abused its discretion

when it permitted the state's fingerprint expert, Detective Henson, to testify at trial because

the state failed to provide the defense with a "complete expert report," prior to trial, as

required by Crim.R. 16(K). Therefore, Rich contends, the trial court was required under that

rule to exclude Detective Henson's expert testimony. We find this argument unpersuasive.

{¶ 46} Crim.R. 16(K) states in pertinent part:

(K) Expert Witnesses; Reports. An expert witness for either side shall prepare a written report summarizing the expert witness’s testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert’s qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert’s testimony at trial.

{¶ 47} Prior to trial, the state provided the defense with an "Evidence Submission

Form" prepared by Detective Henson, which discussed two fingerprint images taken from one

of the toolboxes found in Rich's storage locker. The evidence submission form indicated that

one of the fingerprint images contained seven characteristics that matched Rich's "#2" finger,

and the other contained five characteristics that matched Rich's "#3" finger. The form

- 12 - Butler CA2012-03-044

concluded that the fingerprint images "are simultaneous latent prints with 12 total matching

characteristics of fingers #2 & #3, simultaneous fingers of Aaron [sic] Rich."

{¶ 48} Immediately before calling Detective Henson to the witness stand, the state

provided the defense with Detective Henson's PowerPoint presentation which he intended to

present to the jury. The presentation stated that one of the two latent fingerprints found on

the toolbox actually had eight, and not just seven, matching characteristics with Rich's known

fingerprint, and that a third latent fingerprint had been found on the toolbox that had at least

four characteristics that matched Rich's known fingerprint. The presentation concluded that

the "[s]imultaneous latent prints [found on the toolbox] matched against the simultaneous

known prints of Aaron [sic] Rich have a total of 17+ matching characteristics."

{¶ 49} Upon receiving a copy of the PowerPoint presentation, Rich requested that it be

excluded from evidence because it had not been turned over to the defense as required by

Crim.R. 16. The trial court overruled Rich's objection, finding that Crim.R. 16(K) required only

a summary of the expert witness's testimony and not "the finished product or exact word for

word." However, the trial court stated that if Detective Henson's testimony regarding his

PowerPoint presentation contained any new information that had not been contained in the

material provided to the defense during discovery, including the evidence submission form,

the defense was to call that to the trial court's attention, at which time the trial court would

strike any of the new information from Detective Henson's testimony. The trial court also

agreed to adjourn the trial early that day following Detective Henson's direct examination so

that the defense could carefully examine his PowerPoint presentation.

{¶ 50} Detective Henson presented his PowerPoint presentation to the jury, informing

them that two fingerprints had been found on the toolbox that had a total of 13 (and not just

12) characteristics that matched Rich's known fingerprints, and that a third fingerprint was

also found on the toolbox that had at least four characteristics that matched Rich's known - 13 - Butler CA2012-03-044

fingerprint, for a total of 17-plus (and not just 12) characteristics that matched Rich's known

fingerprints.

{¶ 51} The following day, the defense renewed its objection to not receiving Detective

Henson's PowerPoint presentation before trial. When the trial court asked the defense if

Detective Henson had testified to anything that had not been contained in the material that

had been provided to them prior to trial, including the evidence submission form, the defense

responded that Detective Henson had testified "[m]ore completely" in that he "testified with

his analysis and how he reached it, and it is the analysis that is contained in [the PowerPoint

presentation]." When the trial court asked the defense if there was anything else, the

defense responded, "no."

{¶ 52} In support of his assertion that the state violated Crim.R. 16(K) by failing to

provide him with "a complete expert report[,]" Rich calls to our attention that Detective

Henson's PowerPoint presentation contained new information that had not been contained in

the evidence submission form, namely, that there were three fingerprints uncovered from the

toolbox, and not just two, with 17-plus total characteristics, and not just 12, that matched

Rich's known fingerprints. However, Rich is ignoring the trial court's instruction to the

defense to bring to its attention any new information contained in Detective Henson's

testimony at trial regarding his PowerPoint presentation that had not been contained in the

material provided to the defense before trial, including the evidence submission form. Rich is

also ignoring the trial court's offer to strike any such new information from Detective Henson's

testimony if the defense brought it to the trial court's attention. However, the only objection

the defense raised to Detective Henson's testimony was that Detective Henson had testified

"[m]ore completely[,]" in that he testified as to his analysis and how he arrived at it.

{¶ 53} Therefore, the only issue properly before us is Rich's argument that Detective

Henson's expert report regarding the fingerprints found on the toolbox should have been - 14 - Butler CA2012-03-044

"more complete." What Rich means by this is, while the state provided him with a summary

of Detective Henson's conclusions, the state failed to provide him with a summary of

Detective Henson's analysis, and therefore the trial court was obligated under Crim.R. 16(K)

to exclude Detective Henson's testimony for this reason. We find this argument

unpersuasive.

{¶ 54} Crim.R. 16(K) requires an expert witness for either side to "prepare a written

report summarizing the expert witness's testimony, findings, analysis, conclusions, or

opinion[.]" (Emphasis added.) Rich is essentially asking this court to interpret Crim.R. 16(K)

to require expert witnesses to provide a written report with a summary of the expert's

testimony, a summary of the expert's findings, a summary of the expert's analysis, a

summary of the expert's conclusions, and a summary of the expert's opinion. However, Rich

has failed to cite any case law that supports his suggested interpretation of Crim.R. 16(K),

nor are we aware of any. We conclude that the state complied with Crim.R. 16(K) when,

during pretrial discovery, it provided the defense with the evidence submission form prepared

by Detective Henson which contained a summary of Detective Henson's findings and

conclusions that the fingerprints found on the toolbox were Rich's fingerprints.

{¶ 55} Furthermore, the state's purpose in admitting Detective Henson's fingerprint

expert testimony was to provide additional circumstantial evidence that tied Rich to the

cocaine found in his storage locker. However, this testimony was merely cumulative to other

overwhelming circumstantial evidence that the state presented that tied Rich to his storage

locker in which a large amount of cocaine was discovered in the toolboxes located there.

Included in this other circumstantial evidence is the fact that the storage locker had been

rented by Rich in June 2010, the manager of the storage facility, Lawson, was able to identify

Rich at trial because Rich had come to his storage locker often, and that, on the day in

question, Rich's storage locker was accessed at the same time he was observed driving to - 15 - Butler CA2012-03-044

and from the area where the storage facility was located.

{¶ 56} Given the foregoing, Rich's third assignment of error is overruled.

{¶ 57} In his fourth assignment of error, Rich argues the trial court abused its

discretion when it refused to compel the state to turn over to him, prior to trial, Detective

Thompson's written investigative notes, the existence of which came to light at the hearing

held on Rich's motion to suppress. Rich asserts that these notes constitute a "police report,"

for purposes of Crim.R. 16(B)(6), and that the trial court committed reversible error in refusing

to order the state to disclose them to the defense. We disagree.

{¶ 58} Detective Thompson's written notes summarize the conversations that occurred

between the CI, Rubio and Sanchez on their August 27, 2011 trip to and from the Dayton

Airport. The notes also record the movements of Rich, Rubio, Sanchez, Bernabe and Ghale

from 6:00 p.m. to 7:48 p.m. on August 29, 2011, and the observations of the suspects'

movements made by Detective Thompson's fellow officers that day. During his testimony at

the suppression hearing, Detective Thompson referred to the notes in question to refresh his

memory of the events surrounding his investigation of Rich. Rich's counsel argued that

Detective Thompson's notes constituted a police "report," for purposes of Crim.R. 16(B)(6),

and therefore the state was obligated under that rule to turn them over to the defense during

discovery. Several days later, Rich's counsel filed a motion to compel production of

Detective Thompson's notes. The trial court overruled Rich's motion to compel on the basis

that the notes he sought constituted "work product" and therefore did not need to be

disclosed under Crim.R. 16(J)(1).

{¶ 59} We note, parenthetically, that Rich's defense counsel failed to ask the trial court

to order the state to produce Detective Thompson's written investigative notes under Evid.R.

612. That rule provides that if a witness uses a writing to refresh his memory for purposes of

testifying, the adverse party is entitled to ask the trial court to order the writing to be produced - 16 - Butler CA2012-03-044

so that the adverse party can inspect the writing and cross-examine the witness about it.

The trial court may order the writing to be produced if the trial court determines it is

necessary and in the interests of justice to do so. Had Rich requested the trial court to order

that Detective Thompson's notes be produced under Evid.R. 612, Rich would have been

entitled to, at least, ask the trial court to determine that it was necessary and in the interests

of justice to require the state to produce the notes so that he could inspect them, cross-

examine Detective Thompson about them, and introduce into evidence any portion of them

relating to Detective Thompson's testimony.

{¶ 60} Crim.R. 16, which was amended in 2010, provides in relevant part:

(B) Discovery: Right to Copy or Photograph. Upon receipt of a written demand for discovery by the defendant, and except as provided in division (C), (D), (E), (F), or (J) of this rule, the prosecuting attorney shall provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case indictment, information, or complaint, and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant, within the possession of, or reasonably available to the state, subject to the provisions of this rule:

***

(6) All reports from peace officers * * * [.]

***

(J) Information Not Subject to Disclosure. The following items are not subject to disclosure under this rule:

(1) Materials subject to the work product protection. Work product includes, but is not limited to, reports, memoranda, or other internal documents made by the prosecuting attorney or defense counsel, or their agents in connection with the investigation or prosecution or defense of the case[.]"

{¶ 61} The 2010 Staff Notes to Crim.R. 16 state that division (B) "expands the State's

duty to disclose [prior to trial] materials and information beyond what was required under the - 17 - Butler CA2012-03-044

prior rule" and that division (J) "clarifies what information is not subject to disclosure by either

party for reasons of confidentiality, privilege, or due to their classification as documents

determined to be work product."

{¶ 62} Prior to 2010, Crim.R. 16 stated, in pertinent part:

(B)(2) Except as provided in subsection (B)(1)(a), (b), (D), (f), and (g), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal documents made by the prosecuting attorney or his agents in connection with the investigation or prosecution of the case, or of the statements made by the witnesses or prospective witnesses to state agents.

{¶ 63} In State v. Carballo, 12th Dist. No. CA88-02-006,

, *2-3 (Oct.

16, 1989), this court held that a police officer's notes and surveillance log of a defendant's

activities were police investigation materials that fell within former Crim.R. 16(B)(2), and thus

were not discoverable by the defense. See also State v. Lusane, 8th Dist. No. 42048,

, *4 (Dec. 11, 1980) (trial court properly refused to order that a police report be

included in the record, since "[t]he prosecution has no duty to reveal, and the [trial] court has

no authority to compel the prosecution to reveal, the work-product of the police"). However,

Carballo and Lusane were both decided before the current version of Crim.R. 16 became

effective in 2010. Crim.R. 16(B)(6) now requires "[a]ll reports" from "peace officers" like

Detective Thompson to be disclosed to criminal defendants like Rich upon written demand.

{¶ 64} The first question that must be addressed is whether Detective Thompson's

notes are a police "report" for purposes of Crim.R. 16(B)(6). Rich asserts that Detective

Thompson's notes should be deemed to be a police "report" under Crim.R. 16(B)(6), because

Detective Thompson used his notes "just like a police report, in that he referred to them

during his testimony at the suppression hearing in order to refresh his recollection regarding

the facts of the case." Rich further asserts that allowing the state to label all such reports as

"informal" or "personal notes" would render Crim.R. 16(B)(6)'s requirement of turning over

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"[a]ll reports from peace officers" meaningless.

{¶ 65} The state argues that only "official" reports, such as the initial reports of an

offense, reports of an incident taken at the scene and arrest reports, are the type of reports

that must be provided in discovery under Crim.R. 16(B)(6). The state asserts that a police

officer's notes are not a "report," under Crim.R. 16(B)(6), because "logic" dictates that

"Crim.R. 16(B)(6) only intended to include systematic, pre-existing forms created in

conjunction with incidents and arrests." (Emphasis sic.) The problem with this argument is

that if the drafters of Crim.R. 16(B)(6) had intended such an interpretation, it is difficult to

understand why they would not have expressly said so.

{¶ 66} The state argues, in the alternative, that a police officer's notes are entitled to

"work product" protection under Crim.R. 16(J)(1), which, the state contends, is "virtually

identical" to former Crim.R. 16(B)(2). Rich counters that the work product exception set forth

in Crim.R. 16(J)(1) does not apply to police reports since the police are not the "agents" of

the prosecuting attorney. However, Rich's argument ignores the language in Crim.R. 16(J)(1)

that states, "[w]ork product includes, but is not limited to * * *." We conclude that the work

product protection clause in Crim.R. 16(J)(1) can apply to the "work product" of the police, as

well as to that of prosecutors, defense attorneys or their agents. The question that remains

is whether Detective Thompson's notes constitute "work product" that is entitled to protection

under Crim.R. 16(J)(1).

{¶ 67} "Work product," as used in connection with the contents of police reports, has

been traditionally defined as those portions of the report that contain "'the officer's

investigative decisions, interpretations and interpolations[.]'" State v. Cunningham,

,

, quoting State v. Jenkins,

(1984).

The portions of a police report that are found to constitute work product are "'privileged and

excluded from discovery under Crim.R. 16[.]" Cunningham, quoting Jenkins. - 19 - Butler CA2012-03-044

{¶ 68} The information in Detective Thompson's notes could be interpreted as

containing material related to the "investigative decisions" of Detective Thompson and his

fellow officers. Even if they could not, we still would find any error the trial court may have

committed in not ordering the state to disclose the notes to Rich to have been harmless.

Most, if not all, of the information contained in the notes came out during the trial, none of the

information in the notes was exculpatory, and none of the information would have been of

material assistance to Rich in preparing his defense. See Crim.R. 16(B). Nevertheless, we

would call to the state's attention the language in the 2010 Staff Notes to Crim.R. 16(A),

which states that "[n]othing in this rule shall inhibit the parties from exchanging greater

discovery beyond the scope of this rule." The material the state refused to disclose to Rich

appears to be unremarkable, and it is puzzling to this court as to why the state would risk

reversal by not disclosing such information.

{¶ 69} In light of the foregoing, Rich's fourth assignment of error is overruled.

{¶ 70} Judgment affirmed.

HENDRICKSON, P.J., and M. POWELL, J., concur.

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