[Cite as State v. Garner,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-18-1269

Appellee Trial Court No. CR0201703156

v.

Emmanuel Garner DECISION AND JUDGMENT

Appellant Decided: October 16, 2020

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Timothy B. Hackett, Assistant State Public Defender, for appellant.

*****

PIETRYKOWSKI, J.

{¶ 1} Appellant, Emmanuel Garner, appeals the judgment of the Lucas County

Court of Common Pleas, convicting him, following an Alford plea, of one count of

felonious assault with a firearm specification, and one count of involuntary manslaughter with a firearm specification, and sentencing him to a total prison term of 21 years. For

the reasons that follow, we affirm.

I. Facts and Procedural Background

{¶ 2} On September 25, 2017, two complaints were filed in the Lucas County

Court of Common Pleas, Juvenile Division, charging the then 16-year-old appellant with

acts that, if committed by an adult, would constitute murder in violation of R.C.

2903.02(B), and felonious assault with a firearm specification in violation of R.C.

2903.11 and R.C. 2941.145. The complaints stemmed from appellant’s involvement in a

shooting death that occurred the previous day.

{¶ 3} On September 29, 2017, the state filed a motion to transfer the case to the

Lucas County Court of Common Pleas, General Division, so that appellant could be tried

as an adult. On November 21, 2017, the juvenile court held a probable cause hearing on

the motion to transfer in accordance with R.C. 2152.12 and R.C. 2152.10.

{¶ 4} At the November 21, 2017 hearing, the state presented two witnesses. The

first witness to testify was J.H. J.H., then 13 years old, testified that on September 24,

2017, she and a number of other girls were fighting in the street in front of 1805

Macomber in Toledo, Lucas County, Ohio, when someone hit her friend’s sister with a

bicycle. At that point, someone told “Fatter” to shoot. J.H. identified appellant as

“Fatter.” J.H. testified that appellant and another person then began to fire guns, and J.H.

recalled hearing two or three shots. According to J.H., appellant was standing on the

stairs to the porch when he began firing.

2. {¶ 5} One of the shots fired that day hit a victim, D.W., who was standing on the

hill in the yard between the porch and the street. D.W. died as a result of her injuries.

Another shot hit a second victim, T.Y., and injured her leg. T.Y. was standing on the hill

near D.W. Appellant was also shot and injured in the leg.

{¶ 6} The last witness to testify was Toledo Police Detective Paul Marchyok.

Marchyok coordinated the investigation at the scene of the shooting. Marchyok

authenticated photos that were taken of the scene, showing eight 9-millimeter shell

casings found at various positions near the front of the house by the porch, steps, and

grass. Marchyok testified from his training, knowledge, and experience that the shooter

was located at the front of the house, either on the steps or on the porch, and was firing

towards the street area.

{¶ 7} Marchyok also authenticated photographs of bullet holes on the front of the

house, which Marchyok testified would have come from a second shooter that was in the

front yard area, firing back up towards the house. Lodged in a post was one of the

projectiles that was fired at the house.

{¶ 8} The state then questioned Marchyok regarding State’s Exhibit 16, which was

an Evidence Technician Report authored by Detective Terry Cousino. In the report,

Cousino details the shell casings that were found, as well as the location of the bullet

holes on the front of the house, which “suggest[ed] that shots were fired both from and at

the front of the house.”

3. {¶ 9} The state next presented to Marchyok State’s Exhibit 17, which was a

Toledo Police Laboratory Report. Marchyok testified that he requested the laboratory

report because he knew from the evidence and the witness statements that there were two

shooters, and he wanted to determine if the projectiles were from the same gun or

different guns. The laboratory report compared the projectile that was lodged in the post

with the projectile that was recovered from D.W., and reported that they were not from

the same gun. The laboratory report concluded that the projectile lodged in the post was

fired from a .38 or .357 caliber weapon, and the projectile recovered from D.W. was fired

from a 9-millimeter weapon.

{¶ 10} Marchyok also authenticated photographs that showed blood droplets on

the front porch, and in the kitchen and bathroom areas of the house. Marchyok testified

that appellant was identified as the person that was shot on the porch through a video

taken on J.H.’s phone, which depicted a person walking around in the house yelling that

he’s been shot, and then a female coming up and saying “Oh, they got Fatter. They got

Fatter. Fatter got shot.” Appellant sought medical treatment for the gunshot wound at

Mercy St. Vincent’s Hospital.

{¶ 11} Following the testimony, the state moved to admit its exhibits. Appellant

objected to the admission of the exhibits “[o]nly with the extent that if there is any

hearsay within hearsay that would not be allowed.” The juvenile court noted appellant’s

objections and admitted the evidence. The court then took the matter under advisement.

4. {¶ 12} The next day, the juvenile court found that there was probable cause to

believe that appellant committed the offenses, and ordered the cases transferred to the

general division for appellant to be tried as an adult.

{¶ 13} Ultimately, in the general division, appellant entered an Alford plea of

guilty to one count of felonious assault in violation of R.C. 2903.11(A)(2) and (D), a

felony of the second degree, with a firearm specification under R.C. 2941.145, and one

count of involuntary manslaughter in violation of R.C. 2903.04(A) and (C), a felony of

the first degree, with a firearm specification under R.C. 2941.145. At sentencing, the trial

court ordered appellant to serve a total prison term of 21 years.

II. Assignment of Error

{¶ 14} Appellant has timely appealed his judgment of conviction, and now asserts

two assignments of error for our review:

I. Emmanuel Garner’s Due Process and Confrontation Clause rights

were violated when the government introduced forensic and ballistics

findings through the surrogate testimony of a non-analyst police detective,

in violation of the Fifth, Sixth, and Fourteenth Amendments to the U.S.

Constitution; and Article I, Sections 10 and 16 of the Ohio Constitution.

II. Without the unconstitutional ballistics testimony, the juvenile

court’s probable cause finding was against the sufficiency and manifest

weight of admissible evidence, in violation of the Fifth and Fourteenth

5. Amendments to the U.S. Constitution; and, Article I, Section 16 of the Ohio

Constitution.

III. Analysis

{¶ 15} In his first assignment of error, appellant argues that his Confrontation

Clause rights were violated when the juvenile court admitted the Evidence Technician

Report and the Toledo Police Laboratory Report without the authors of those reports

being available for cross-examination. In his reply brief, appellant expands on his

argument and asserts that due process requires an opportunity to confront and cross-

examine the witnesses presented against him at the bindover hearing. We disagree, and

we hold that neither the Confrontation Clause nor the traditional notions of due process

guarantee to appellant the right to confront and cross-examine the authors of the reports

at the bindover hearing.

{¶ 16} At the outset, we note that appellant failed to object or raise the issue of his

inability to confront and cross-examine the authors of the reports in the juvenile court.

Thus, he has waived all but plain error. State v. Arnold,

, 2016-Ohio-

1595,

(holding that because the defendant did not raise to the trial

court his claim of violation of his right to confront witnesses under the Sixth

Amendment, “the claim is thus waived unless plain error is shown”). “An alleged error is

plain error only if the error is obvious, and ‘but for the error, the outcome of the trial

clearly would have been otherwise.’” (Internal citations omitted.) State v. Perez, 124

6. Ohio St.3d 122,

,

, quoting State v. Long,

,

(1978), paragraph two of the syllabus.

{¶ 17} The Sixth Amendment to the United States Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the

witnesses against him.” Similarly, Article I, Section 10 of the Ohio Constitution

provides, “In any trial, in any court, the party accused shall be allowed * * * to meet the

witnesses face to face.” “Section 10, Article I provides no greater right of confrontation

than the Sixth Amendment.” State v. Self,

,

(1990).

{¶ 18} “[T]he Confrontation Clause bars ‘admission of testimonial statements of a

witness who did not appear at trial unless he was unavailable to testify, and the defendant

had had a prior opportunity for cross-examination.” State v. Hood,

,

,

, ¶ 33, quoting Crawford v. Washington,

,

,

(2004). Here, the parties do not dispute that the

Evidence Technician Report and the Toledo Police Laboratory Report were testimonial

statements, as opposed to nontestimonial statements not subject to the Confrontation

Clause. Rather, the issue presented is whether the Confrontation Clause right applies in a

juvenile bindover proceeding.

{¶ 19} We begin by noting that “[t]he right to confrontation is basically a trial

right.” Barber v. Page,

,

,

(1968). The

juvenile probable cause hearing however is not a trial as it does not “find as a fact that the

accused minor is guilty of the offense charged. It simply finds the existence of probable

7. cause to so believe.” State v. Iacona,

,

(2001),

quoting State v. Whiteside,

,

(3d Dist. 2001). In

Barber, the United States Supreme Court recognized this difference in its determination

that Barber’s cross-examination of the witness during the bindover hearing would not

have satisfied Barber’s Confrontation Clause right to confront the witness at his

subsequent trial. The court reasoned,

[The right to confrontation] includes both the opportunity to cross-examine

and the occasion for the jury to weigh the demeanor of the witness. A

preliminary hearing is ordinarily a much less searching exploration into the

merits of a case than a trial, simply because its function is the more limited

one of determining whether probable cause exists to hold the accused for

trial.

.

{¶ 20} Consistent with Barber, federal courts have repeatedly recognized that the

Sixth Amendment confrontation right does not apply to preliminary hearings. See U.S. v.

Colasuonno,

(2d Cir. 2012) (“[T]he full protections of the

Confrontation Clause do not apply to preliminary hearings.”); Peterson v. California,

(9th Cir. 2010) (under Supreme Court’s Confrontation Clause

jurisprudence, defendant was not constitutionally entitled to confront witnesses at his

preliminary hearing, and the admission of hearsay statements at a preliminary hearing

does not violate the confrontation clause); U.S. v. Andrus,

(7th

8. Cir. 1985) (“The right to confrontation applies when the ability to confront witnesses is

most important—when the trier of fact determines the ultimate issue of fact.

Consequently, the sixth amendment does not provide a confrontation right at a

preliminary hearing.”); U.S. v. Harris,

(5th Cir. 1972) (“There is no

Sixth Amendment requirement that [defendants] also be allowed to confront [witnesses]

at a preliminary hearing prior to trial.”).

{¶ 21} Nonetheless, appellant argues that the right to confront the witnesses

against him should be extended to the bindover hearing because it is a “critically

important proceeding,” Kent v. U.S.,

,

(1966), that

potentially means “the difference between five years’ confinement and a death sentence.”

. However, Kent expressly rejected the opportunity to “rule that constitutional

guaranties which would be applicable to adults charged with the serious offenses for

which Kent was tried must be applied in juvenile court proceedings concerned with

allegations of law violation.”

. Rather, the court held “that the hearing must

measure up to the essentials of due process and fair treatment.”

.

{¶ 22} Due process, though, is a “flexible concept that varies depending on the

importance attached to the interest at stake and the particular circumstances under which

the deprivation may occur.” State v. Aalim,

,

,

, ¶ 22. “Applying the Due Process Clause is therefore an uncertain enterprise

which must discover what ‘fundamental fairness’ consists of in a particular situation by

first considering any relevant precedents and then by assessing the several interests that

9. are at stake.”

quoting Lassiter v. Durham Cty. Dept. of Social Servs.,

,

,

(1981).

{¶ 23} Embarking upon the uncertain enterprise of discovering what “fundamental

fairness” consists of in the present case, we first note that appellant does not cite any

precedent recognizing a Sixth Amendment confrontation right in preliminary hearings in

general, or in juvenile bindover hearings in particular. To the contrary, the precedent

establishes that the right to confront witnesses under the Sixth Amendment is a trial right,

and is not applicable to preliminary hearings. Indeed, the Ohio Supreme Court has held,

“[T]he constitutional provision according an accused the right to confront his accusers

and the witnesses used against him * * * * relates to the actual trial for the commission of

the offense and not to the preliminary examination where it is determined whether the

accused is to be bound over to the Grand Jury.” Henderson v. Maxwell,

, 188,

(1964).

{¶ 24} Next, we find that although the bindover hearing is a “critically important

hearing” that directs the proceedings down one of two paths with drastically different

potential outcomes, appellant’s liberty is not yet at stake. “The juvenile court has the

duty to assess the credibility of the evidence and to determine whether the state has

presented credible evidence going to each element of the charged offense, but it is not

permitted to exceed the limited scope of the bindover hearing or to assume the role of the

fact-finder at trial.” In re D.M.,

,

,

, ¶

10. “Determination of the merits of the competing prosecution and defense theories, both

10. of which [are] credible, ultimately [is] a matter for a factfinder at trial.” State v. Iacona,

,

(2001). Thus, further proceedings before a

factfinder are required to determine whether appellant committed the charged offenses

beyond a reasonable doubt.

{¶ 25} Finally, the fact that appellant is unable to confront the authors of the

reports at the bindover hearing does not frustrate in any way his ability to confront and

cross-examine them at the subsequent trial or delinquency hearing, where it is the most

important. See Kentucky v. Stincer,

,

,

(1987) (instead of distinguishing between a “trial” and “pretrial proceeding,” it is

more useful to consider whether the restriction “interferes with [the defendant’s]

opportunity for effective cross-examination”).

{¶ 26} Therefore, we hold that appellant does not have a Sixth Amendment

Confrontation Clause right or a due process right to confront the authors of the expert

reports at the juvenile bindover hearing.

{¶ 27} In so holding, we reach the same conclusion as the Seventh District in In re

B.W.,

,

(7th Dist.), in which the court held, “We do

not believe the juvenile court (at a probable cause hearing held prior to transferring a

juvenile to the general division) was bound by confrontation clause standards for

admissibility of evidence.”

{¶ 28} Accordingly, appellant’s first assignment of error is not well-taken.

11. {¶ 29} In his second assignment of error, appellant argues that without the expert

reports, the evidence is insufficient to support the juvenile court’s finding of probable

cause, or alternatively that the juvenile court’s finding of probable cause is against the

manifest weight of the evidence. However, as stated above, we hold that the juvenile

court did not err when it considered the expert reports. Thus, appellant’s assignment of

error is without merit. Furthermore, we hold that the evidence presented to the juvenile

court was sufficient to establish probable cause to believe that appellant committed the

offenses.

{¶ 30} “[W]hether the state has produced sufficient evidence to support a finding

of probable cause in a mandatory-bindover proceeding is a question of law, and we

review questions of law de novo.” In re A.J.S.,

,

,

.

{¶ 31} Here, appellant was alleged to have committed the offense of murder in

violation of R.C. 2903.02(B), which provides “No person shall cause the death of another

as a proximate result of the offender’s committing or attempting to commit an offense of

violence that is a felony of the first or second degree * * *.” Appellant was also alleged

to have committed the offense of felonious assault in violation of R.C. 2903.11(A), which

provides “No person shall knowingly do either of the following: (1) Cause serious

physical harm to another or to another’s unborn; (2) Cause or attempt to cause physical

harm to another or to another’s unborn by means of a deadly weapon or dangerous

ordnance.”

12. {¶ 32} The evidence establishes that appellant was standing on the front porch of

the house firing a 9mm gun towards the street while another individual was firing a

revolver back up at him. Caught in the crossfire were two victims. A 9mm bullet struck

one of the victims and killed her. Another bullet struck and injured the other victim.

Based upon this evidence, we hold that the state produced sufficient evidence to support

the juvenile court’s finding that probable cause existed to believe that appellant

committed the offenses.

{¶ 33} Accordingly, appellant’s second assignment of error is not well-taken.

IV. Conclusion

{¶ 34} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Lucas County Court of Common Pleas is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Christine E. Mayle, J. JUDGE CONCUR. _______________________________ JUDGE

13. This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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