In re I.S. , 2023 Ohio 3975 ( 2023 )

[Cite as In re I.S., 2023-Ohio-3975.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE I.S. :
: No. 112364
:
A Minor Child :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: November 2, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL22101893
Appearances:
Rachel A. Kopec, for appellee.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory Ochocki, Assistant Prosecuting
Attorney, for appellant.
EILEEN A. GALLAGHER, J.:
Appellant the state of Ohio appeals the juvenile court’s denial of its
motion for a mandatory bindover of appellee I.S. to the general division of the
Cuyahoga County Court of Common Pleas for the purpose of criminal prosecution
pursuant to R.C. 2152.10(B). For the reasons that follow, we reverse the judgment
and remand the matter with instructions to order the bindover.
I. Factual Background and Procedural History
I.S. was born on October 3, 2004. He was 17 years old on February 11,
2022.
The state filed an 11-count complaint in juvenile court alleging that I.S.
was a delinquent child because he committed acts that constitute the following
crimes: aggravated murder in violation of R.C. 2903.01(A) and (B), murder in
violation of R.C. 2903.02(A) and (B), aggravated robbery in violation of R.C.
2911.01(A)(1) and (3), discharge of a firearm on or near prohibited premises in
violation of R.C. 2923.162(A)(3), felonious assault in violation of R.C. 2903.11(A)(1)
and (2) and improperly handling firearms in a motor vehicle in violation of R.C.
2923.16(B). Almost all of the counts carried one- and three-year firearm
specifications.
The allegations stemmed from an investigation into the shooting death
of Bryan Conley, who was found deceased in the driver’s seat of a parked vehicle on
Dudley Avenue in Cleveland on February 11, 2022.
The state’s theory of the case was that I.S. shot Conley during a drug
robbery. I.S. admitted in an interview with law enforcement that he was at the scene
of the crime but claimed that he was just there to buy some marijuana from Conley;
he said he ran away when he heard someone else firing the shots.
The state moved for a mandatory transfer of I.S. to the general division
for purposes of criminal prosecution. The juvenile court held a probable-cause
hearing on October 11 and 12, 2022. The state called four witnesses during its
presentation of evidence.
A. The Testimony of Dr. Thomas Gilson
Dr. Thomas Gilson testified that he is employed as the Cuyahoga
County Medical Examiner and Crime Laboratory Director. The parties stipulated
that Dr. Gilson is an expert in the field of forensic pathology.
Dr. Gilson responded to the scene of Conley’s death. Conley’s body was
in a parked car that was idling when he arrived. The vehicle and Conley’s body were
transported to the medical examiner’s office. Investigators processed the vehicle
and body for trace evidence and then Gilson supervised the autopsy of Conley.
There were five gunshot wounds to Conley’s body.
Conley was shot in the left back, close to the spine; there was soot in
the wound and an abrasion around the wound consistent with a muzzle impression,
indicating that the muzzle of the gun was in contact with Conley’s body when the
shot was fired. The bullet traveled “from the back to the front, from the left side of
the body to the right” and downward, breaking a rib and injuring Conley’s aorta,
causing significant bleeding.
Conley was also shot in the upper left back; the evidence indicated that
the muzzle of the gun was partially in contact with Conley’s body when the shot was
fired. The bullet traveled “from the back towards the front, from the left towards the
right and in a downward direction.” The bullet transected Conley’s spinal cord and
then passed through Conley’s right lung and liver.
Conley was also shot in the upper right back. This bullet damaged the
liver and diaphragm and then the aorta and the iliac artery.
Conley was also shot on the left side. The bullet traveled “from the
top of the body towards the bottom” through soft tissues without damaging any
organs. The wound was “very superficial.”
Conley was also shot in the left thigh, fracturing his femur. This bullet
traveled “front to back.”
The gunshot wounds to Conley’s trunk killed him and Gilson
concluded that the manner of death was homicide. Toxicology testing revealed the
presence of byproducts of cigarette and marijuana use in Conley’s blood.
On cross-examination, Gilson admitted that his examination did not
reveal who shot Conley or how many people were involved in Conley’s death. He
further admitted that he did not know the order in which the bullet wounds were
inflicted.
B. The Testimony of Courtney Evans
Courtney Evans testified that she is employed as a Cleveland police
patrol officer and has been so employed for seven years.
On the evening of February 11, 2022, Evans was on patrol when
officers in another squad car — who had been “touring for shots fired” — reported
that they had found a male deceased on Dudley Avenue. When she arrived on scene,
she observed a silver Nissan sedan; there was at least one cartridge case outside the
car on the driver’s side. There was a white male in the driver’s seat, slumped over
the center console. The car was running and the windshield wipers were operating.
The driver’s side door was partially opened; another officer had opened the door to
assess the victim’s status.
Evans walked to a house across the street from the Nissan; the house
had a home-security system. Evans reviewed surveillance video captured by the
system.
The state played the recording in court.
The recording depicts a dark-colored vehicle, which Evans identified
as a Jeep sports utility vehicle (“SUV”), park on the north side of the street. Evans
described that a “taller slender male” wearing “some sort of white stripe going down
the sleeve” (we refer to this person as “Person 1” in this opinion for clarity) then exits
from the driver’s side rear door of the Jeep. At 6:39 p.m., Person 1 walks up a
driveway to a house. At 6:41 p.m., Person 1 walks back down the driveway and re-
enters the SUV. At 6:53 p.m., Person 1 exits the SUV again and walks back up the
driveway toward the same house.
At 7:31 p.m., Conley’s silver Nissan parks on the north side of the
street, two driveways in front of the Jeep. Only the Nissan’s rear bumper and part
of the driver’s side tail light are visible in the video after the Nissan parks; the rest of
the car is obscured from the camera’s view by a tree.
Two people — one wearing black (“Person 2”) and the other wearing
a lighter color (“Person 3”) — exit the Jeep from the passenger side and walk around
the rear of the Jeep. They then walk to the passenger side of the Nissan. By 7:31:37
p.m., both people are at the passenger side of Nissan.
At 7:31:43 p.m., Person 3 starts walking back to the Jeep from the
passenger side of the Nissan. He knocks on the driver’s side rear passenger window
of the Jeep, and the window rolls down partially. Person 3 appears to speak to
someone or multiple people inside the Jeep, then begins walking back toward the
Nissan.
At 7:32:14 p.m., Person 1 (wearing the dark outfit with the white
stripe) exits the Jeep from the driver’s side rear door and begins walking toward the
Nissan behind Person 3. By 7:32:24 p.m., Person 3 is at the rear bumper of the
Nissan on the passenger side; Person 1 is a few steps behind, approaching the
driver’s side.
At 7:32:29 p.m., Person 3 disappears from view (behind the tree) on
the passenger side of the Nissan. Person 1 then disappears from view (behind the
tree) on the driver’s side.
At 7:32:55 p.m., Person 3 begins walking back to the Jeep from the
passenger side of the Nissan. He walks past the Jeep on the driver’s side and stands
behind the Jeep, partially obscured from the camera’s view by a column on the porch
of the home with the surveillance system.
At 7:33:31 p.m., Person 3 seems to approach the passenger side rear
door of the Jeep, then returns to the rear of the Jeep, then walks to the front
passenger side door of the Jeep, then returns to the rear of the Jeep.
At 7:34:18 p.m., Person 3 runs back to the Jeep on the passenger side,
as Person 1 (with the white stripe) runs back into view of the camera from the
driver’s side of the Nissan toward the Jeep. A few steps behind Person 1, Person 2
runs back toward the Jeep from the passenger side of the Nissan.
Person 3 enters the Jeep on the passenger side. Person 1 enters the
Jeep through the driver’s side rear door, followed by Person 2 through the same
door.
At 7:34:35 p.m., the Jeep speeds away past the Nissan.
At 7:37:24 p.m., a dark-colored SUV — which appears to be the same
Jeep as left the scene a few minutes prior — returns into view of the camera from the
direction it had previously driven. The SUV stops in the middle of the street and a
person exits from the passenger side of the SUV and walks quickly to the passenger
side of the Nissan.
At 7:37:45 p.m., the person crosses to the driver’s side of the Nissan
across the rear of the Nissan.
At 7:37:48 p.m., another person exits the SUV, from the driver’s side,
and jogs to the Nissan.
At 7:38 p.m., the two people run back to the SUV and enter it. The
SUV drives away.
At 7:43 p.m., a police cruiser arrives at the scene.
Evans testified that, after she reviewed this video with the
homeowner who maintained the surveillance system, Evans approached the house
where Person 1 had walked up the driveway prior to the shooting. A female at the
house told Evans that she “believes that whoever approached had some sort of
connection with her daughter.” Officers attempted to contact the daughter, a
juvenile, but were unable to reach her. After speaking with the mother again,
officers took a missing-person report on the daughter.
On cross-examination, Evans admitted that she does not know the
identity of any of the individuals in the surveillance video and cannot identify their
races or ages; she called the people “males” because they appeared by stature to be
male, but she is not sure. She further admitted that, because a tree is blocking the
view of the Nissan’s car doors, the video does not show if anyone ever enters the
Nissan. Finally, she admitted that the surveillance camera did not capture any
gunshots.
C. The Testimony of S.G.
S.G. testified that she is 16 years old. At the time of Conley’s death,
S.G. lived on Dudley Avenue with her mother and brother. S.G. knows I.S. because
they “used to be friends and then he became my boyfriend at a time.”
S.G. met I.S. in January 2022 through the internet. They came to
meet in person occasionally through February 11, 2022. I.S. would come to S.G.’s
house on Dudley Avenue.
S.G. met Z.D. (who was named in the state’s complaint as a co-
delinquent) through I.S. She would hang out with Z.D. once or twice a week in
January into the beginning of February 2022. There came a time in early February
that I.S. and Z.D. came over to her house together; they drove together in a green
Jeep.
S.G. reviewed photographs on the stand and testified that Z.D. wears
a jacket that looks like a jacket worn by one of the individuals in the surveillance
video (the one “wearing half-and-half”). She said Z.D. is also the same height as the
individual in the video.
S.G. testified that she told detectives in February 2022 that one of the
other individuals — Person 1, who wore the jacket with the white stripe down the
sleeves — was I.S. But in her direct examination, she testified that she could not
identify the person in the video “because there can be a lot of people who wear
jackets like that.”
On February 11, 2022, I.S. called S.G. and “asked me where I was at.”
S.G. did not tell I.S. where she was.
On cross-examination, S.G. admitted that she ran away from the
Dudley Avenue house in October 2021 and was missing until February 2022.
She further admitted that, while she considered I.S. to be her
boyfriend, they only met up in person once or twice. She did not know I.S. very well.
On redirect, S.G. clarified that in her interview with police, she said
she thought she knew who the individuals in the surveillance photographs
were — I.S. and Z.D. She also said that, despite her direct examination testimony
that Z.D. and I.S. once showed up together at her house in a green Jeep, it was
actually just Z.D. that showed up in the Jeep; I.S. was not with Z.D.
In response to questions from the court, S.G. testified that she first
thought of Z.D. and I.S. when police showed her still images from the surveillance
video because she had seen them wearing similar clothing to the individuals in the
images and the individuals in the images seemed to be of a similar height to Z.D.
and I.S. S.G. saw I.S. wear an Adidas jacket that looked similar to the clothing worn
by Person 1 in the surveillance video when I.S. and S.G. first met in person.
D. The Examination of Curtiss Jones
Curtiss Jones testified that he is employed as the supervisor of the
trace evidence unit at the medical examiner’s office. He has been in that position for
20 years. The parties stipulated that Jones is an expert forensic analyst in the field
of trace evidence.
There was a bullet hole on the underside of Conley’s vehicle; there
were no other bullet holes on the outer surface of the vehicle. There were bullet
holes on the driver’s seat and on the floor under the driver’s seat. There were also
bullet holes on the inside of the driver’s door. A bullet path was determined for two
of the interior bullet holes; the bullets traveled “left-to-right, back-to-front at a steep
downward angle.”
No marijuana or firearms were recovered from the vehicle.
On cross-examination, Jones admitted that he swabbed the rear
driver’s side passenger area for DNA.
E. The Examination of Jonathan Dayton
Jonathan Dayton testified that he is employed as a detective with the
homicide unit of the Cleveland Police Department. Dayton investigated Conley’s
death.
Dayton arrived on scene on February 11, 2022. He found a spent .45-
caliber cartridge case on the ground “just outside of the vehicle between the driver
front and driver rear door.” Dayton canvassed the area but did not locate anyone
who reported witnessing the shooting.
Arrest warrants were obtained for I.S. and Z.D. after the interview
with S.G. When Z.D. was arrested, a .45-caliber handgun was recovered from the
residence in which he was arrested. When I.S. was arrested, a 9 mm-caliber
handgun was recovered from the residence in which he was arrested. Forensic
ballistic tests revealed that neither recovered handgun fired the bullets that killed
Conley.
Dayton and other detectives interviewed I.S. after his arrest. The
state played a recording of the interview.
In the interview, I.S. initially denied being at the scene of the crime.
He said that he was at his sister’s house all day on the day of the murders. He also
initially denied knowing anyone who lived on Dudley Avenue. When investigators
showed I.S. the surveillance videos of the incident, I.S. adamantly denied that it was
him in the video.
Later in the interview, I.S. admitted that he was there. He admitted
that he traveled in the black SUV to Dudley Avenue and walked up to the victim’s
car. He says his intention was to buy marijuana from the victim. He said that the
victim weighed the marijuana while I.S. was at the car and then the victim invited
I.S. to smell the marijuana. I.S. continued to deny that he shot Conley and claimed
that another person in the SUV was the shooter. He claimed that the bullets came
from Conley’s right, as though from the front passenger area. He also admitted that
he knew someone who lived on Dudley Avenue — S.G.
On cross-examination, Dayton admitted that the surveillance video
does not clearly capture the face of any of the suspects. He further admitted that the
swabs from the Nissan were inconclusive for DNA; nothing in the DNA report
indicated statistical support for a match to I.S.’s DNA.
Dayton further admitted that he had no information that I.S. drank
alcohol or smoked marijuana before his interview; Dayton said that I.S. did not
appear to be under the influence of alcohol or drugs during the interview.
Dayton admitted that the investigation revealed that Bryan Conley
sold marijuana and that I.S. would purchase marijuana from him from time to time.
F. The Trial Court’s Findings
On December 29, 2022, the juvenile court found no probable cause
to believe I.S. committed any of the acts alleged in the complaint and therefore
denied the state’s motion for a bindover. The court reasoned as follows:
[T]he Court did not find that there was reasonable cause to believe that
the child had a firearm on his person and displayed the firearm,
brandished it, indicated that he possessed it or used to commit the acts
alleged.
And therefore, in pertinent part, the theory of the case then would be
based on, in my opinion, a great deal on complicity. And * * * the
complicity statute does not apply in juvenile bind over — to the juvenile
bind over criteria.
The state appealed, raising the following assignment of error:
The trial court erred as a matter of law when it found no probable cause
to believe the juvenile committed the offenses charged in the juvenile
court complaint.
II. Law and Analysis
A. Bindover Proceedings and Standard of Review
“Juvenile courts possess exclusive jurisdiction over children alleged
to be delinquent for committing acts that would constitute a crime if committed by
an adult.” In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 11,
citing R.C. 2151.23(A). However, under certain circumstances, the juvenile court
“has the duty” to transfer a case, or bind a juvenile over, to the adult criminal system
where the juvenile may be tried as an adult and face criminal sanctions. In re M.P.
at ¶ 11, citing R.C. 2152.10 and 2152.12. There are two types of transfers under Ohio’s
juvenile justice system — mandatory transfers and discretionary transfers. State v.
D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894, ¶ 10.
“‘Mandatory transfer removes discretion from judges in the transfer
decision in certain situations.’” Id., quoting State v. Hanning, 89 Ohio St.3d 86, 90,
728 N.E.2d 1059 (2000); R.C. 2152.12(A). “‘Discretionary transfer * * * allows
judges the discretion to transfer or bind over to adult court certain juveniles who do
not appear to be amenable to care or rehabilitation within the juvenile system or
appear to be a threat to public safety.’” D.W. at ¶ 10, quoting Hanning at 90; R.C.
2152.12(B).
R.C. 2152.12(A)(1)(a) states, in relevant part:
After a complaint has been filed alleging that a child is a delinquent
child for committing one or more acts that would be an offense if
committed by an adult, if any of those acts would be aggravated
murder, murder, attempted aggravated murder, or attempted murder
if committed by an adult, the juvenile court at a hearing shall transfer
the case if * * * [t]he child was sixteen or seventeen years of age at the
time of the act charged that would be aggravated murder, murder,
attempted aggravated murder, or attempted murder and there is
probable cause to believe that the child committed the act charged.
In other words, if a child is eligible for mandatory bindover and if
probable cause exists to believe that the juvenile committed the act charged, the
juvenile court must enter an order of transfer. In re C.G., 8th Dist. Cuyahoga No.
97950, 2012-Ohio-5286, ¶ 29; In re M.P. at ¶ 11; Juv.R. 30(B) (“In any proceeding
in which transfer of a case for criminal prosecution is required by statute upon a
finding of probable cause, the order of transfer shall be entered upon a finding of
probable cause.”).
To establish probable cause in a bindover proceeding, the state has
the burden to present credible evidence supporting each element of the offense.
State v. Iacona, 93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001). Probable cause in this
context requires “credible evidence that ‘raises more than a mere suspicion of guilt,’”
but does not require evidence of guilt beyond a reasonable doubt. In re D.M., 140
Ohio St.3d 309, 2014-Ohio-3628, 18 N.E.3d 404, ¶ 10, quoting Iacona at 93. In
other words, probable cause in this context is “‘“a fair probability, not a prima facie
showing, of criminal activity.”’” State v. Martin, 8th Dist. Cuyahoga No. 108996,
2021-Ohio-1096, ¶ 32, quoting State v. Starling, 2d Dist. Clark No. 2018-CA-34,
2019-Ohio-1478, ¶ 37, quoting State v. Grimes, 2d Dist. Greene No. 2009-CA-30,
2010-Ohio-5385, ¶ 16; see also In re B.W., 2017-Ohio-9220, 103 N.E.3d 266, ¶ 20
(7th Dist.) (“Probable cause is a flexible concept grounded in fair probabilities which
can be gleaned from considering the totality of the circumstances.”), citing Iacona
at 93. Probable cause is “‘a reasonable ground for belief of guilt.’” In re B.W. at ¶ 20,
quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879(1949). It does not require a showing that a belief is correct or that it is more likely
true than false. In re B.W. at ¶ 20, citing Texas v. Brown, 460 U.S. 730, 742, 103
S.Ct. 1535, 75 L.Ed.2d 502 (1983); see also In re J.R., 8th Dist. Cuyahoga No. 110241,
2021-Ohio-2272, ¶ 32.
In considering whether probable cause exists, the juvenile court must
“evaluate the quality of the evidence presented by the state in support of probable
cause as well as any evidence presented by the respondent that attacks probable
cause” to determine whether the state has presented credible evidence going to each
element of the offense charged. Iacona at 93. However, “while the juvenile court
has a 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,
it is not permitted to exceed the limited scope of the bindover hearing or to assume
the role of the ultimate fact-finder.” In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-
5307, 897 N.E.2d 629, ¶ 44; In re D.M., 140 Ohio St.3d 309, 2014-Ohio-3628, 18
N.E.3d 404, at ¶ 10.
The juvenile court’s probable cause determination in a mandatory
bindover proceeding involves questions of both fact and law. In re A.J.S. at ¶ 1, 51.
As a result, our review of the juvenile court’s decision is mixed. We defer to the
juvenile court’s determinations regarding witness credibility, reviewing those
determinations for abuse of discretion. However, whether the state has presented
sufficient evidence to support a finding of probable cause is a question of law we
review de novo, without any deference to the juvenile court. In re C.G., 2012-Ohio-
5286, at ¶ 31; In re A.J.S. at ¶ 1, 51.
B. Elements of the Charged Offenses
At issue here are the charges against I.S. for what would be aggravated
murder in violation of R.C. 2903.01(A) and (B), murder in violation of R.C.
2903.02(A) and (B), aggravated robbery in violation of R.C. 2911.01(A)(1) and (3),
discharge of a firearm on or near prohibited premises in violation of R.C.
2923.162(A)(3), felonious assault in violation of R.C. 2903.11(A)(1) and (2) and
improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B). I.S.
was 17 years old at the time of the alleged offenses, making transfer mandatory if
there is probable cause to believe he committed the offenses.
A person commits aggravated murder by “purposely, and with prior
calculation and design, caus[ing] the death of another” or by “caus[ing] the death of
another * * * while committing or attempting to commit, or while fleeing
immediately after committing or attempting to commit, kidnapping, rape,
aggravated arson, arson, aggravated robbery, robbery, aggravated burglary,
burglary, trespass in a habitation when a person is present or likely to be present,
terrorism, or escape.” R.C. 2903.01(A), (B).
A person commits murder by “purposely caus[ing] the death of
another” or “caus[ing] 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 and that is not a violation of [R.C.] 2903.03 or 2903.04 * * *.”
R.C. 2903.02(A), (B).
A person commits aggravated robbery by doing one of the following
in attempting or committing a theft offense or in fleeing immediately after the
attempt or offense: having a deadly weapon on or about the offender’s person or
under the offender’s control and either displaying the weapon, brandishing it,
indicating that the offender possesses it, or using it or inflicting, or attempting to
inflict, serious physical harm on another. R.C. 2911.01(A)(1), (3).
A person commits the offense of discharge of a firearm on or near
prohibited premises by discharging a firearm upon or over a public road or highway.
R.C. 2923.162(A)(3).
A person commits felonious assault by knowingly causing serious
physical harm to another or by causing or attempting to cause physical harm to
another by means of a deadly weapon. R.C. 2903.11(A)(1), (2).
A person commits the offense of improperly handling firearms in a
motor vehicle by knowingly transporting or having a loaded firearm in a motor
vehicle in such a manner that the firearm is accessible to the operator or any
passenger without leaving the vehicle. R.C. 2923.16(B).
C. Probable-Cause Analysis
At this stage of the proceedings, the state was not required to prove
the truth of the allegations against I.S. It had to present credible evidence showing
probable cause supporting each element of the offenses charged. Based on the
evidence presented at the probable-cause hearing, we agree with the state that its
evidence raised more than a mere suspicion of I.S.’s guilt; the state’s evidence
created a fair probability that I.S. committed the acts with which he had been
charged.
As detailed above, I.S. admitted that Conley was a marijuana dealer
and that I.S. had purchased marijuana from him in the past. I.S. further admitted
that I.S. was picked up from his sister’s house on February 11, 2022, in the dark-
colored SUV that was captured on the surveillance video. After initially denying that
the surveillance video captured him, I.S. ultimately admitted that his denial was
false and that the video recorded him. His admission is corroborated by S.G.’s
testimony that she knew I.S. to wear a jacket that looked like the jacket worn by
Person 1 in the video.
I.S. admitted that he approached the victim’s vehicle on the driver’s
side and sat in the backseat behind the victim for some period of time. If I.S. is
Person 1, as the state believes, I.S.’s admission that he approached the driver’s side
is corroborated by the video evidence. I.S. said that Conley began weighing
marijuana and asked him to smell the marijuana.
While I.S. denies shooting Conley, the physical evidence contradicts
I.S.’s statement that the gunshots came from Conley’s right (the front passenger
area). Two of the shots were fired when the gun was in contact or partial contact
with the victim and the bullets in Conley’s back traveled “from the back to the front,
from the left side of the body to the right” and downward. Moreover, a bullet path
was determined for two of the interior bullet holes in the vehicle; the bullets traveled
“left-to-right, back-to-front at a steep downward angle.”
Considering this forensic evidence, there is more than a fair
probability that the fatal gunshots were fired from behind and to the left of Conley
as he sat in the driver’s seat — from the inside or the outside of the Nissan on the
driver’s side, as the state believes.
While there were at least two people — Person 1 and Person 2 — at
Conley’s Nissan when the state believes the shots were fired (just before everyone
ran back to the SUV), according to the surveillance video only Person 1 had
approached the Nissan on the driver’s side. I.S. places himself on that side of the
car when the shots were fired.
Minutes after the SUV speeds away, it returns to the crime scene.
Individuals from the SUV exit and walk around both sides of the Nissan. By the time
police arrive, there is no marijuana in the vehicle.
The tree obscures the passenger compartment of the Nissan; the
camera may not have captured if Person 2 walked around the front of the car to the
driver’s side, after initially approaching on the passenger side. The camera may not
have captured if some unidentified third party approached the car from an angle
obscured by the tree. I.S.’s counsel also suggested at the hearing that I.S. may have
been under the influence of alcohol and marijuana when he talked to police. We also
note that there has been no DNA recovered from the crime scene that links I.S. to
the scene and, further, that the gun recovered from the home where I.S. was arrested
was excluded as the weapon that fired the fatal bullets. But at this stage of the
proceedings, the state need not prove its case beyond a reasonable doubt.
The state’s evidence, including I.S.’s own statements about the
shooting, support a fair probability that Conley was shot to death on a public
roadway and robbed of, at least, the marijuana he had brought with him. The
evidence supports a fair probability that I.S. — the only person who approached the
victim’s car on the side where the shots seem to have been fired, who placed himself
at the spot from which those shots seem to have come and whose story about
another shooter from the passenger side is contradicted by the evidence — pulled
the trigger.
We do not consider whether the state proved I.S. guilty beyond a
reasonable doubt; that is a question for the ultimate factfinder if this case gets to
trial. We also do not consider issues of trial admissibility with respect to the state’s
evidence, an issue that has not been raised in this appeal. The only issue presently
before us is whether the state established probable cause at the bindover hearing.
Having concluded that it did establish probable cause, we must reverse the trial
court’s finding of no probable cause.
We, therefore, sustain the state’s assignment of error.
When a reviewing court reverses a juvenile court’s finding of no
probable cause and finds sufficient probable cause in a mandatory transfer case, the
proper remedy is to reverse and remand with instructions to enter a mandatory
transfer order. See In re B.W., 2017-Ohio-9220, 103 N.E.3d 266, at ¶ 52–53, citing
In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, at ¶ 65.
Accordingly, the juvenile court’s order is reversed and the case is remanded with
instructions to enter an order of mandatory transfer.
III. Conclusion
Having sustained the state’s sole assignment of error for the reasons
stated above, we reverse the judgment. We remand this matter with instructions to
enter an order of mandatory transfer.
It is ordered that appellant bear the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
________________________
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR