In re T.S. , 2021 Ohio 1889 ( 2021 )

[Cite as In re T.S., 2021-Ohio-1889.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: T.S. : APPEAL NO. C-200267
TRIAL NO. 20-881Z
:
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 4, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Appellant State of Ohio,
Raymond T. Faller, Hamilton County Public Defender, and Jessica Moss, Assistant
Public Defender, for Appellee T.S.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} In this appeal, the state of Ohio challenges the decision of the juvenile
court dismissing a delinquency action against appellee T.S. The complaint alleged
that when he was 17 years old, T.S. engaged in behavior that would have constituted
felonious assault and two firearm specifications if he had been an adult.
{¶2} The state filed a motion for relinquishment of jurisdiction. Following a
hearing, the juvenile court determined that no probable cause existed to believe that
T.S. committed the offenses and dismissed the complaint.
{¶3} The state now appeals. Because the state presented sufficient evidence
of probable cause, we reverse the juvenile court’s judgment.
The Evidence at the Bindover Hearing
{¶4} At the bindover hearing, Cincinnati Police Detective Robert Bohl
testified that on February 17, 2020, he was called to investigate a shooting that
occurred on Hopple Street in Cincinnati. He interviewed T.S., who had been injured
in the shooting. According to the detective:
I just asked [T.S.] what happened. He stated that he was driving a car
on Hopple Street when a car pulled up behind him. Shots were fired.
He got out and ran. As he was running, he admitted that he was
shooting back at them as well.
T.S. stated that he used a Glock gun. T.S. reported that after he was shot, he ditched
the gun before running into a Wendy’s restaurant.
{¶5} Meanwhile, a man named Terrell Grigsby called the police to report
that he had been involved in a shootout. When Detective Bohl interviewed him,
Grigsby stated that the previous night, two unknown men had beaten him up and
had stolen his Glock gun and his vehicle. Grigbsy said that he later was with William
Cook when they saw Grigsby’s stolen vehicle driving on Hopple Street, so they pulled
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OHIO FIRST DISTRICT COURT OF APPEALS
up behind it and yelled at the driver to get out of the vehicle. When the driver
refused, Grigsby pulled out his rifle and fired one round into the air to intimidate
him. Grigsby said that the driver got out of the vehicle and started shooting back at
him. According to the detective, Grigsby said that “[w]hen the driver of the vehicle,
[T.S.], got out and started shooting back, that’s when Mr. Cook got out of the vehicle
and started returning fire as well.”
{¶6} Detective Bohl also interviewed William Cook who stated that he had
been with Grigsby when they saw the stolen vehicle and pulled up behind it. Cook
reported that Grigsby pulled out a rifle and fired three shots into the air. Then the
driver of the stolen vehicle got out and started shooting, so Cook returned fire with
his 9 mm gun.
{¶7} T.S. sustained at least one gunshot wound in the shooting, but neither
Cook nor Grigsby was injured.
{¶8} Police recovered a 40-caliber Glock gun from the Wendy’s restaurant.
The gun was test-fired and found to be operable. Police found multiple gun shell
casings scattered on the ground at the crime scene, including 9 mm and 7.62-caliber
casings, which matched the guns that Cook and Grigsby fired. Police recovered no
40-caliber casings matching the Glock gun fired by T.S. Detective Bohl explained:
We didn’t recover any [40-caliber] casings, but, I mean, by the time we
got there, cars were driving all over the place. It was quite a large
crime scene. We canvassed the area, didn’t find any.
{¶9} At the conclusion of the hearing, the juvenile court placed of record an
entry stating, “Evidence presented. The evidence is insufficient. Probable cause not
found.” After finding no probable cause, the juvenile court dismissed the complaint.
This appeal followed.
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OHIO FIRST DISTRICT COURT OF APPEALS
Probable Cause
{¶10} In a single assignment of error, the state argues that the juvenile court
erred by dismissing the complaint. The state contends that the court erroneously
found that there was insufficient evidence to support a finding of probable cause.
{¶11} R.C. 2152.12(B) governs discretionary bindovers. It allows the juvenile
court to transfer to the common pleas court a case alleging a juvenile has committed
an act that would be a felony if committed by an adult if the juvenile court finds that
(1) the child was 14 or older at the time of the charged offense, (2) probable cause
exists that the juvenile committed the charged offense, and (3) the juvenile is not
amenable to care or rehabilitation in the juvenile system. R.C. 2152.12(B); State v.
Reese, 1st Dist. Hamilton Nos. C-180126 and C-180412, 2019-Ohio-3680, ¶ 14.
{¶12} The state’s burden in a bindover hearing is to provide credible
evidence of every element of an offense to support a finding that probable cause
exists to believe that the juvenile committed the charged offense. In re A.J.S., 120
Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 42, citing State v. Iacona, 93
Ohio St.3d 83, 93, 752 N.E.2d 937 (2001). “[B]ut that evidence does not have to be
unassailable.” Id. at ¶ 46. “In meeting this standard the state must produce evidence
that raises more than a mere suspicion of guilt, but need not provide evidence
proving guilt beyond a reasonable doubt.” (Emphasis sic.) Id. at ¶ 42, quoting
Iacona at 93. Whether the state has presented sufficient evidence to demonstrate
probable cause to believe the juvenile has committed the act charged is a question of
law that an appellate court reviews de novo. In re M.P., 124 Ohio St.3d 445, 2010-
Ohio-599, 923 N.E.2d 584, ¶ 13, citing In re A.J.S. at ¶ 47.
{¶13} To establish probable cause that T.S. committed felonious assault, the
state had the burden to provide credible evidence that T.S. knowingly caused or
attempted to cause physical harm to William Cook by means of a deadly weapon. See
R.C. 2903.11(A)(2); In re A.J.S. at ¶ 42. An operable firearm is a deadly weapon. See
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OHIO FIRST DISTRICT COURT OF APPEALS
State v. Scott, 6th Dist. Sandusky No. S-19-030, 2020-Ohio-4854, ¶ 51; R.C.
2923.11(A) and (B)(1). For the firearm specifications, the state had to provide
credible evidence that T.S. had the firearm on or about his person or under his
control while committing the felonious-assault offense, and that he displayed,
brandished, indicated possession of, or used the firearm to facilitate the offense. See
R.C. 2941.141(A) and 2941.145(A).
{¶14} The evidence presented at the bindover hearing was sufficient to
support a finding of probable cause that T.S. knowingly attempted to cause physical
harm to Cook by means of an operable firearm. T.S. admitted to the detective that he
fired a gun at the people who got out of the car behind him, and the gun was
recovered by police and found to be operable. In addition, Cook and Grigsby told the
detective that the driver of the car in front of them began to shoot at them after
Grigsby fired a warning shot or shots. Because the state met its burden to establish
probable cause that T.S. engaged in conduct that would have constituted felonious
assault and the firearm specifications if he had been an adult, the juvenile court erred
by finding no probable cause to believe that T.S. had committed the charged acts.
{¶15} While it is true that the trial court orally stated at the hearing, “[W]ith
regard to the felonious assault charge, whether the shots were fired in the air or not,
he fired in self defense,” T.S. urges us to ignore this because it was not included in
the court’s entry. Rather, T.S. asks us to focus only on whether there was sufficient
evidence to support the elements of felonious assault. As discussed above, we find
there was probable cause to believe T.S. engaged in conduct that would have
constituted felonious assault if he had been an adult.
{¶16} We reverse the juvenile court’s judgment. This case is remanded to
the juvenile court to set T.S.’s case for an amenability hearing.
Judgment reversed and cause remanded.
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OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER and SUNDERMANN, JJ., concur.
J. HOWARD SUNDERMANN, JR., retired, from the First Appellate District, sitting by
assignment.
Please note:
The court has recorded its own entry this date.
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