[Cite as State v. Walton , 2021-Ohio-3958.] IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, Appellee,

- vs -

MARCQUAN D. WALTON, Appellant. :

:

:

:

:

: CASE NO. CA2020-12-124

O P I N I O N

11/8/2021

CRIMINAL APPEAL FROM BUTLER C OUNTY COURT OF COMMON PLEAS Case No. CR2020-05-0599

Michael T. Gmoser, Butler County Prosecuting Attorney, and Step hen M. Wagner, Assistant Prosecuting Attorney, for appellee. Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant

.

PIPER, P.J. {¶1} Appellant, Marcquan Walton, appeals a decision of the Butler Co unty Court of Common Pleas denying his motion to suppress evidence related to his convictions for trafficking in a fentanyl-related compound, possession of a fen tanyl-related compound, and illegal possession of drug paraphernalia. {¶2} Police received a call that a robbery occurred behind the U.S. Market in Hamilton, Ohio. The information obtained by police indicated t hat the robbery involved aButler CA2020-12-124

- 2 - firearm and was perpetrated by five teenage African American ma les. A police sergeant was patrolling the area nearby with his partner and responded t o the U.S. Market location within one to two minutes after receiving the dispatch. The se rgeant and his partner began to search for the reported suspects. {¶3} Approximately 30 seconds after arriving at U.S. Market, and one block away from the market itself, the officers observed two African Ameri can males walking. One of the males, later identified as Walton, looked like a teenager. The sergeant asked Walton to raise his hands and then approached him. The sergeant asked Walton whether he had weapons or illegal items on his person, and Walton replied that he had marijuana in his pocket. Walton then reached for his right pocket, and the serg eant reminded him to keep his hands in the air. Even then, Walton reached again toward h is right pocket. {¶4} The sergeant and his partner performed a pat down of Walton and located marijuana, fentanyl, a digital scale, as well as approximately $2,300 in cash. Walton was indicted for trafficking and possession of a fentanyl-related c ompound, as well as possession of drug paraphernalia. Walton filed a motion to sup press, arguing that the police lacked reasonable articulable suspicion to stop him and that po lice lacked legal grounds to search his person. The trial court denied the motion, and Walt on pled no contest to the charges. The trial court found Walton guilty, merged the allie d offenses, and sentenced Walton to community control. Walton now appeals the trial cour t's denial of his motion to suppress, raising the following assignment of error: {¶5} THE TRIAL COURT ERRED IN OVERRULING THE MOTION TO

SUPPRESS. {¶6} Walton argues in his assignment of error that the trial court e rred by denying his motion to suppress. {¶7} Appellate review of a ruling on a motion to suppress presents a mixedButler CA2020-12-124

- 3 - question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio4769, ¶ 15. When considering a motion to suppress, the trial c ourt, as the trier of fact, is in the best position to weigh the evidence to resolve factual ques tions and evaluate witness credibility. State v. Vaughn , 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. {¶8} This court is therefore bound to accept the trial court's findi ngs of fact if they are supported by competent, credible evidence. State v. Cyrek , 12th Dist. Butler No. CA2019-02-037, 2019-Ohio-4515, ¶ 9. "An appellate court, howev er, independently reviews the trial court's legal conclusions based on those fact s and determines, without deference to the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal standard." State v. Cochran , 12th Dist. Preble No. CA2006-10-023, 2007- Ohio-3353, ¶ 12. {¶9} Both the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution protect individuals from un reasonable searches and

seizures. State v. Jimenez , 12th Dist. Warren No. CA2011-09-103, 2012-Ohio-3318, ¶ 9;

Katz v. United States , 389 U.S. 347, 351, 88 S.Ct. 507 (1967). Any searches or seiz ures that occur "outside the judicial process, without prior approva l by judge or magistrate are

per se unreasonable under the Fourth Amendment — subject only to a fe w specially established and well-delineated exceptions." Id. at 357. An investigative stop, or a Terry stop, by a police officer is a common exception to the Fourth A mendment warrant requirement. Terry v. Ohio , 392 U.S. 1, 20-22, 88 S.Ct. 1868 (1968). {¶10} Pursuant to Terry , a police officer may detain an individual without probable cause when the officer has reasonable suspicion based on specif ic, articulable facts, that criminal activity is afoot. Id. at 21. "An investigatory stop does not violate the Fourth Amendment to the United States Constitution if the police have reasonable suspicion that 'the person stopped is, or is about to be, engaged in criminal activity.'" State v. Jordan , 104Butler CA2020-12-124

- 4 - Ohio St.3d 21, 2004-Ohio-6085, ¶ 35. {¶11} Reasonable articulable suspicion is "something more than an und eveloped suspicion or hunch" but is less than the level of suspicion req uired for probable cause. State

v. Hinkston , 12th Dist. Clermont No. CA2020-03-012, 2020-Ohio-6903, ¶ 18; United States

v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581 (1989). "Reasonable articulabl e suspicion exists when there are specific and articulable facts which, taken toge ther, with rational inferences from those facts, reasonably warrant the intrusion." State v. Hill , 12th Dist. Warren No. CA2015-05-044, 2015-Ohio-4655, ¶ 10. {¶12} Reasonable and articulable suspicion is determined by evaluatin g the totality of the circumstances "through the eyes of a reasonable and prud ent police officer on the scene who must react to events as they unfold." State v. Popp , 12th Dist. Butler No. CA2010-05-128, 2011-Ohio-791, ¶ 13. "This process allows offic ers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." United

States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744 (2002). {¶13} An assessment of the totality of the circumstances "does not de al with hard certainties, but with probabilities." United States v. Cortez , 449 U.S. 411, 418, 101 S.Ct. 690, (1981). As such, this court will consider the cumulative facts "not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement."

Id. {¶14} After an officer makes a lawful Terry stop, the officer may conduct a limited protective search, or a pat down, for weapons if the officer ha s "reason to believe that he is dealing with an armed and dangerous individual, regardless of w hether he has probable

cause to arrest the individual for a crime." Terry , 392 U.S. at 27; Popp at ¶ 12. "The officer need not be absolutely certain that the individual is armed; th e issue is whether a reasonablyButler CA2020-12-124

- 5 - prudent man in the circumstances would be warranted in the beli ef that his safety or that of others was in danger." Terry at 27. "The rationale behind the protective search is to allow the officer to take reasonable precautions for his own safety i n order to pursue his investigation without fear of violence." State v. Andrews , 57 Ohio St.3d 86, 89 (1991). {¶15} Based on the totality of the circumstances presented in the pre sent case, we find that law enforcement had reasonable and articulable suspic ion to effectuate a Terry stop on Walton in order to investigate the possibility of crimi nal activity and that the officers acted lawfully in conducting a protective pat down of Walton fo r weapons. {¶16} At the time law enforcement encountered Walton, they had just r eceived notice that a robbery occurred at the U.S. Market location and that such robbery involved a

firearm. The officers encountered Walton within 30 seconds of arriving on the scene and only one block away from the reported location of the robbery. See State v. Hairston , 156 Ohio St.3d 363, 2019-Ohio-1622 (finding Terry stop valid where the stop occurred "very close in time" and in location to where officers heard gunshots and appellant was the only person officers saw after they heard the shots). {¶17} The officers were also told that a firearm was used in the comm ission of the robbery, which gave the sergeant reason to be on alert for weap ons. The sergeant had been told that multiple African American teenagers were the per petrators of the crime, and Walton matched the description of the suspects. While Walton w as not accompanied by exactly four others at the time the sergeant observed him, the sergeant testified that he was not necessarily looking for a group of five because the perpetr ators would "spread" after commission of the crime and "they usually don't stay together i f it happens." 1

1. The foregoing paragraphs support a Terry stop and investigation. Obviously, when Walton was stopped, and the sergeant began his investigation by confronting Walton, the Terry stop was initiated. The precise moment the Terry stop was initiated was not raised on appeal, nor was it briefe d by the parties.Butler CA2020-12-124

- 6 - {¶18} Upon commencement of the investigation, Walton immediately admi tted to the sergeant that he had illegal marijuana on his person. Walt on continued to make multiple movements toward his right pocket even after the sergeant instr ucted him to stop. This court has previously recognized that "the need for a protective pat-down becomes more urgent where drugs are involved." Jimenez , 2012-Ohio-3318 at ¶ 15. See also State v.

Bales , 2d Dist. Montgomery No. 24897, 2012-Ohio-4968, ¶ 23. The nex us between drugs and guns can create a reasonable suspicion of danger to the off icer. State v. Wyatt , 12th Dist. Warren No. CA2020-11-076, 2021-Ohio-3146, ¶ 18-25. {¶19} Based on the officers' understanding of the reported crime, the short response time, Walton's matching the description of the purported assail ants, Walton's admission of having marijuana on his person, as well as Walton's behavior of continually reaching toward his pocket, we find that the officers had sufficient reasonable suspicion to conduct a pat down of Walton in order to complete an investigative stop pursu ant to Terry

. {¶20} Despite the circumstances as they existed at the time of the st op, Walton challenges the reliability of the dispatch in support of his ar gument that the stop was invalid. However, Walton did not raise the reliability issue to the tria l court or in his motion to suppress, and thus has waived the issue on appeal. State v. J.A.C. , 12th Dist. Warren Nos. CA2017-04-044 and CA2017-04-045, 2018-Ohio-361, ¶ 22. {¶21} Pursuant to Crim.R. 47, in filing a motion to suppress in a cri minal proceeding, a defendant "shall state with particularity the grounds upon wh ich it is made and shall set forth the relief or order sought." This requires a defendant t o "state the motion's legal and factual bases with sufficient particularity to place the prosec utor and the court on notice of

the issues to be decided." State v. Orr, 12th Dist. Brown No. CA2015-08-019, 2016-Ohio1148, ¶ 9. A defendant's motion to suppress must clearly ident ify the grounds upon which he challenges the constitutionality of a warrantless seizure. Xenia v. Wallace , 37 Ohio St.3dButler CA2020-12-124

- 7 - 216, 218 (1988). Failure on the part of the defendant to adequ ately raise the basis of his challenge constitutes a waiver of that issue on appeal. State v. Peagler , 76 Ohio St.3d 496, 500 (1996). 2 {¶22} Walton's failure to challenge the reliability of the dispatch d enied the sergeant the ability to testify to the details of the dispatch, and also denied the state an ability to demonstrate the reliability of the information at the suppressi on hearing. We agree with the concurring opinion, "Walton needed to raise his arguments regar ding the reliability of the dispatch earlier, specifically in his motion to suppress, in or der to impose a burden on the state to prove the reliability of the dispatch." (Citation omi tted). {¶23} After reviewing the record, considering all of Walton's argumen ts, and viewing the circumstances through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold, we find that the serge ant had reasonable articulable suspicion to perform a Terry stop of Walton so that the trial court properly denied the motion to suppress. Walton' s single assignment of error is therefore, overruled. {¶24} Judgment affirmed. HENDRICKSON, J., concurs. BYRNE, J., concurs separately.

BYRNE, J., concurring separately. {¶25} I agree with the majority opinion's statement of the facts and procedural history, as well as its description of the key legal principles at issue in this case, as set forth

2. When raising suppression issues to be litigated, the Ohio S upreme Court has upheld the importance of notice to the prosecutor, stating, "[t]o suppress evidence obta ined pursuant to a warrantless search or seizure, the defendant must (1) demonstrate the lack of a warrant, and ( 2) raise the grounds upon which the validity of the search or seizure is challenged in such a manner as to g ive the prosecutor notice of the basis for the challenge." (Emphasis added.) City of Xenia v. Wallace , 37 Ohio St. 3d 216 (1988), paragraph one of the syllabusButler CA2020-12-124

- 8 - in ¶ 1-14 above. However, I write separately and concur in the judgment, rather than fully joining the majority opinion, because I analyze certain issues in a different manner than the majority. Timing of Terry Stop {¶26} The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. ("The right of the pe ople to be secure in their persons, houses, papers, and eff ects, against unreasonable sear ches and seizures, shall not be violated * * *"). "Not all interactions between police officers and citizens are seizures

under the Fourth Amendment." State v. Keating , 12th Dist. Clermont No. CA2019-08-064, 2020-Ohio-2770, ¶ 13, citing State v. Brown , 12th Dist. Clermont No. CA2001-04-047, 2001 Ohio App. LEXIS 5476, *5 (Dec. 10, 2001). The United States Supreme Court has recognized three categories of police interactions with members of the public: ( 1) a consensual encounter, which requires no objective justification, (2) a brief investigatory detention, which must be supported by reasonable suspicion of criminal activity, and (3) a full arrest, which must be supported by probable cause.

Id. at ¶ 13, citing State v. Wynne , 10th Dist. Franklin No. 18AP-531, 2019-Ohio-1013, ¶ 12. In determining whether an encounter between a police officer and a citizen is a seizure and thus implicates the Fourth Amendment, the question is whether, in light of all the circumstances surrounding the encounter, a reasonable person would believe he or she w as not free to leave.

Id. at ¶ 14, citing Wynne at ¶ 13. "Stated otherwise, the question is whether, taking i nto account all the circumstances surrounding the encounter, a reas onable person would feel free to decline the officer's request or terminate the encounte r." Id ., citing State v. Brown , 12th Dist. Clermont No. CA2001-04-047, 2001 WL 1567340, *5-6 (D ec. 10, 2001), in turn citing Florida v. Bostick , 501 U.S. 429, 436-437, 111 S. Ct. 2382, (1991). "As long as a reasonable person would feel free to disregard the officer, the encounter is consensual andButler CA2020-12-124

- 9 - no reasonable suspicion is required." Id. , citing Bostick at 434. Under this objective test, we consider not whether the individual believed he was being or dered to restrict his movement, but whether the officer's words and actions would hav e conveyed that to a reasonable person. Id. , citing Columbus v. Body , 10th Dist. Franklin No. 11AP-609, 2012- Ohio-379, ¶ 14. Circumstances indicating that a person has been seized include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, the use of language or tone of voice indicating that compliance wit h the officer's request might be compelled, and blocking the person's path.

Id. , citing Brown at *6; United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870 (1980); Wynne at ¶ 13. {¶27} In this case, after observing Walton and his companion walking on South Monument Street in Hamilton, the sergeant, placing his hands on his own head and approaching Walton, demanded that Walton place his hands on his head. I conclude that

the Terry stop occurred at this point in the encounter. An officer's ve rbal demand that an individual place his hands on his head would convey to a reason able person that the person was not free to decline the officer's request or terminate the encounter. See id . As a result, Walton was, at that point, seized for Fourth Amendment purposes

. Id. This conclusion is further supported by the fact that when Walton told the sergean t that he had marijuana on his person and reached for his pocket, the officer reminded Wal ton that he must keep his hands on his head. Walton was certainly not free to leave. Reasonable Suspicion for Terry Stop {¶28} Having determined when the Terry stop occurred, I must next analyze whether the officers had reasonable suspicion to conduct the Terry stop. At the point that

the Terry stop occurred, the only information known to the officers was the informationButler CA2020-12-124

- 10 - relayed to them in the dispatch about a purported robbery behin d the U.S. Market. {¶29} In his first issue presented for review, Walton argues that the officers lacked reasonable suspicion for the Terry stop because they lacked "specific facts that a robbery occurred behind the U.S. Market or that Walton participated in it." He cites a well-developed line of cases holding that an anonymous tip (which he assumes w as the basis of the dispatch) is presumed unreliable, and requires independent poli ce corroboration to support reasonable suspicion. See Maumee v. Weisner , 87 Ohio St.3d 295, 298 (1999); State v.

Sexton , 12th Dist. Butler No. CA2019-08-133, 2020-Ohio-4179, ¶ 29-30. {¶30} The majority concludes that Walton waived any argument regardin g the dispatch's reliability because he did not challenge the dispatc h's reliability before the trial court or in his motion to suppress. See ¶ 20-21 above. The majority also notes that, if Walton had argued against the reliability of the dispatch in hi s motion to suppress, the state would have had the burden to prove that the dispatch was reliab le. I agree. The Ohio Supreme Court has held that: To suppress evidence obtained pursuant to a warrantless search or seizure, the defendant must (1) demonstrate the lack of a warrant, and (2) raise the grounds upon which the validity of the search or seizure is challenged in such a manner as to give the prosecutor notice of the basis for the challenge.

Xenia v. Wallace , 37 Ohio St. 3d 216 (1988), paragraph one of the syllabus. A defendant is required to give the prosecutor notice of the grounds on whi ch the defendant challenges a warrantless search or seizure, but this is not the same thing as the defendant having the burden of proof. That burden is on the state. The Ohio Suprem e Court in Wallace went on to explain that:

Once a defendant has demonstrated a warrantless search or seizure and adequately clarified that the ground upon which he challenges its legality is lack of probable cause, the prosecut or bears the burden of proof, including the burden of going forwar d with evidence, on the issue of whether probable cause existedButler CA2020-12-124

- 11 - for the search or seizure.

Id. at paragraph two of the syllabus. While Wallace referred to probable cause, rather than reasonable suspicion, we have applied Wallace 's burden of proof analysis when reviewing the denial of motions to suppress alleging a lack of reasonable suspicion. State v.

Blatchford , 12th Dist. Preble, No. CA2015-12-023, 2016-Ohio-8456, ¶ 28, 3 5-36. {¶31} In his motion to suppress Walton entirely failed to mention or argue in any way that the dispatch was not reliable, and therefore the state never had the burden of proving that the dispatch was reliable. For this reason I agre e with the majority that we may not consider Walton's arguments regarding the reliability—or la ck thereof—of the dispatch. 3 {¶32} Because Walton did not challenge the reliability of the dispatc h in his motion to suppress, the only question remaining regarding the reasonab le suspicion analysis is whether the officers could lawfully perform a Terry stop based on the very limited description provided by the dispatch. Walton argues they could not, becaus e, as he states in his appellate brief, "race alone is not a reasonable factor when th e suspect's race is the predominant race for the area." Walton cites as his sole suppo rt United States v. BrignoniPonce , 422 U.S. 873, 885-886, 95 S.Ct. 2574 (1975). {¶33} Walton raises a serious concern that merits careful considerati on. Police should not detain individuals based solely on their race. But that is not what happened here. In fact, Walton and his companion were not stopped becau se of "race alone" (as

3. Walton's counsel briefly referenced concerns regarding the dispatch's reliability in his first closing argument at the suppression hearing, without citing any applicable case law. (Suppression Hearing Tr., p. 23) ("If the Hamilton Police Department's dispatch can only give out informa tion of, there's five young black men that we think are involved with a robbery, that's not enough informatio n. Now, you get to the point of, three officers arrive on scene, to where the alleged robbery took place. There is zero investigation that takes place on scene. Nobody's questioned. They don't go inside the US Market to see if there's anybody there that has any information. There's no witnesses there. There's no victim there on scene to ask and take anything else from. All they have is five young black men as their target of suspec ts"). (Emphasis added.) However, Walton needed to raise his arguments regarding the reliability of the dispatch earlier, specifically in his motion to suppress, in order to impose a burden on the state to prove the reliability of the dispatch. Wallace , paragraphs one and two of the syllabus. See Crim.R. 47.Butler CA2020-12-124

- 12 - Walton contends), but based on five factors: (1) race, (2) age, (3) sex, (4) geographic proximity, and (5) temporal proximity. The dispatch identified the alleged robbers of the U.S. Market by three characteristics: race (black), age (teena gers), and sex (males). The officers detained the only two individuals matching those three characteristics within a very close geographic proximity to the U.S. Market (one and a half b locks) 4 within very close temporal proximity (two and a half minutes at most) to the issu ance of the dispatch. The fact that there were five factors tying Walton to the alleged r obbery distinguishes this case

from Brignoni-Ponce , in which the United States Supreme Court held that it was unconstitutional for police to rely on the "single factor" of M exican ancestry to detain

individuals to determine if t hey were illegal a liens in an area where most people were of Mexican ancestry. 422 U.S. at 885-86. And notably, Brignoni-Ponce stated that ancestry may be a "relevant factor" in a reasonable suspicion analysis, just not when "standing

alone." Id. at 886. Brignoni-Ponce therefore does not support Walton's appeal. {¶34} Walton also argues that "proximity to a crime is not a reasonab le factor that particularizes the detainee to the crime." Walton cites State v. Hairston , 156 Ohio St.3d 363, 2019-Ohio-1622, ¶ 26. But Walton's citation is to Justice Donnelly’s concurrence in the judgment in Hairston , not to the majority opinion, and the majority held that the Terry stop in that case—which involved facts very similar to this cas e—was based on reasonable suspicion. Id. at ¶ 23. Furthermore, the concurrence cited by Walton goes on to state that "Given how close Hairston was to the crime, in both time and pl ace, I would hold that the trial court's determination of reasonable suspicion was legally justified." Id. at ¶ 27. As with Brignoni-Ponce , Hairston does not support Walton's appeal. 5

4. The majority and the briefs repeatedly refer to "one block. " However, later in the transcript the location where Walton and his companion were stopped was clarified as be ing one and a half blocks from the U.S. Market. 5. The officers in Hairston heard gunshots and rushed to the area where they believed the gunshots to haveButler CA2020-12-124

- 13 - {¶35} For these reasons I agree with the majority that the officers h ad reasonable suspicion to stop Walton. But this is a very close case, and m y conclusion is highly dependent on Walton's waiver of any challenge to the reliabilit y of the dispatch and the very small amount of time between the dispatch and the Terry stop. My conclusion does not at all suggest that a dispatch identifying a suspect's race, and n othing else, would give police carte blanche to detain everyone of that race; other identifyin g factors are required, and they were present here.

Pat Down Search {¶36} I agree with the majority's analysis regarding the pat down sea rch. Walton's Argument Based on the Ohio Constitution {¶37} One final note. Walton argues that the Ohio Supreme Court has found the Ohio Constitution to be "more rights protective than the Fourth Amendment" and that this

court should therefore rule for him on Ohio state constitutiona l grounds. He cites State v.

Brown , 99 Ohio St. 3d 323, 2003-Ohio-3931, in which the Ohio Supreme Court held that "Section 14, Article I of the Ohio Constitution provides greate r protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor

misdemeanors." Id. at ¶ 22. {¶38} Ohio courts should be open to arguments that, in some instances , the Ohio

originated, arriving in 30 to 60 seconds. Id. at ¶ 2-3. The officers confronted and conducted a Terry stop on the only individual they found in the area. Id. at ¶ 3. The Ohio Supreme Court concluded that, based on the totality of the circumstances, the officers had reasonable susp icion to stop Hairston. Id. at ¶ 11. Immediately after finding that the officers in Hairston had reasonable suspicion, the Hairston majority opinion stated that "First, Officer Moore personally heard the sound of gunshots—th e gunshots were not faint and sounded closeby. This is not a case in which the officers relied on a radio dispatch or other secondhand information about shots being fired , * * * but one in which they heard and immediately reacted to the sound of nearby gunfire." (Emphasis added.) Id . at ¶ 11, citing In re D.W. , 184 Ohio App.3d 627, 2009-Ohio-5406, ¶ 32 (2d Dist.). The italicized language suggests that Hairston may have come out differently if the police had relied on a di spatch. The supreme court's distinction between a case where officers p ersonally heard gunshots from one in which they relied on a dispatch regarding gunshots seems to be based on the relative reliability of personal observation as opposed to the potential unreliability of a dispatch. Because Walton waived the argume nt that the dispatch was not reliable, the language in ¶ 11 of Hairston does not support a ruling for Walton in this case.Butler CA2020-12-124

- 14 - Constitution may provide greater protections to individuals (wh ether in the criminal context or otherwise) than those provided by the United States Constitu tion, and I welcome Walton's effort. However, Walton failed to raise this argument until hi s appellate reply brief, and the argument is therefore waived. State v. Bullard , 12th Dist. Clermont No. CA2012-09-064, 2013-Ohio-3313, ¶ 8. Even if the argument were not waived, Wal ton has not pointed to any language in the text of the Ohio Constitution supporting his ar gument. {¶39} For all of these reasons I concur in the judgment.