In re D.S. ( 2013 )

[Cite as In re D.S., 2013-Ohio-4565.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: D.S. : APPEAL NO. C-130094
TRIAL NO. 13-518 Z
: O P I N I O N.
Criminal Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: October 16, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Assistant Prosecuting Attorney, for Appellant,
Michael Buschbacher, for Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} The state of Ohio appeals from the trial court’s judgment dismissing a
complaint against D.S. following a discretionary bindover hearing. For the following
reasons, we reverse the trial court’s judgment and remand this cause for further
proceedings.
The Bindover Hearing
{¶2} D.S. was charged with a committing an act that, had it been committed
by an adult, would have constituted the crime of aggravated robbery with an
accompanying firearm specification. The state moved to bind D.S. over to the general
division of the common pleas court. At the probable-cause portion of the bindover
proceeding, the state presented the testimony of the alleged victim, James Dupree, and
investigating police officer Jessica Petree.
{¶3} Dupree testified that he was robbed at gunpoint in an alleyway by three
individuals. He identified D.S. in court as one of the boys who had robbed him. Dupree
stated that D.S.’s co-defendant, D.P., had pulled out a silver gun and then had
demanded Dupree’s money. According to Dupree, D.S. was present during the entire
robbery and had taken the money from him.
{¶4} Petree testified that she had obtained photographs from business
surveillance cameras near the scene of the crime. Several of the pictures showed a boy
that matched the description of a suspect that Dupree had given to police. Through
further investigation, Petree determined that the boy in the pictures may have been
D.P. D.P. was brought in for questioning, and he confessed to robbing Dupree. He also
implicated D.S. in the crime, claiming that D.S. had supplied D.P. with a silver .22 or
.25 caliber gun, that D.S. had been with him during the robbery, and that D.S. had done
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OHIO FIRST DISTRICT COURT OF APPEALS
all of the talking. D.P. was sure that the gun was real because he saw that the clip of the
gun had bullets in it. Based on this lead, Petree interviewed D.S.. According to Petree,
D.S. admitted that he had stolen Dupree’s money. But D.S. told Petree that he had not
realized that D.P. had had a gun until D.P. used it during the robbery.
{¶5} The defense thoroughly cross-examined the state’s witnesses but
presented no evidence of its own. Following the hearing, the trial court ruled that the
state had not presented sufficient evidence to establish probable cause that D.S. had
committed the crime of aggravated robbery and it dismissed the complaint against him.
The Standard of Review
{¶6} To establish probable cause that a juvenile committed an offense, the
state must provide credible evidence of every element of the offense that “raises more
than a mere suspicion of guilt, but need not provide evidence proving guilt beyond a
reasonable doubt.” State v. Iacona, 93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001). On
appeal, where a trial court has made findings of fact, this court generally defers to those
findings and reviews de novo whether the findings establish probable cause as a matter
of law. In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 51.
Here, however, the trial court made no findings. It instead ruled that there was
insufficient evidence to establish probable cause and it dismissed the state’s complaint
on that basis. Sufficiency presents a question of law. State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997). We therefore examine the record de novo to
determine if the state presented sufficient evidence to support a probable-cause finding.
{¶7} In the context of this case, a sufficiency inquiry requires us to examine
the evidence presented in a light most favorable to the state and determine whether any
rational trier of fact could have found that there was a fair probability that D.S. had
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OHIO FIRST DISTRICT COURT OF APPEALS
committed the crime of aggravated robbery with a firearm specification. State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; State v.
George, 45 Ohio St.3d 325, 329, 544 N.E.2d 640 (1989).
Sufficiency of the Evidence
{¶8} Here, the victim of the robbery identified D.S. as one of the robbers. And
the state presented evidence that D.S. had confessed to the crime and that his co-
defendant, D.P., had implicated him in the robbery. D.P. also claimed that D.S. had
supplied him with the gun used in the robbery. This was sufficient evidence to establish
a “fair probability” that D.S. had robbed Dupree at gunpoint or that he had acted as an
accomplice to the crime. See R.C. 2903.03; State v. Johnson, 93 Ohio St.3d 240, 754
N.E.2d 796, (2001) syllabus.
Conclusion
{¶9} For these reasons, we sustain the state’s assignment of error. The trial
court’s judgment that the state had failed to establish probable cause at D.S.’s bindover
hearing and its subsequent dismissal of the state’s complaint on that basis is reversed.
This case is remanded to the trial court to set D.S.’s case for an amenability hearing.
Judgment reversed and cause remanded.
HENDON, P.J., HILDEBRANDT and CUNNINGHAM, JJ.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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