State v. Hall

[Cite as State v. Hall, 2011-Ohio-4389.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 2011 CA 00049
VERNARD A. HALL
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2010 CR 01949
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 29, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO RODNEY A. BACA
PROSECUTING ATTORNEY SCHNARS. BACA & INFANTINO
RENEE M. WATSON 610 Market Avenue North
ASSISTANT PROSECUTOR Canton, Ohio 44702
110 Central Plaza South, Suite 510
Canton, Ohio 44702
Stark County, Case No. 2011 CA 00049 2
Wise, J.
{¶1} Appellant Vernard A. Hall appeals the decision of the Stark County Court
of Common Pleas, Juvenile Division, transferring his case for criminal prosecution as an
adult to the Court of Common Pleas General Division
STATEMENT OF THE FACTS AND CASE
{¶2} On November 11, 2010, at approximately 9:00 p.m., four young males
entered the Maggiore's on East Tuscarawas Avenue in Stark County, Ohio. They were
all dressed in dark clothing and three of the four were brandishing handguns. Two
women were working the store that evening, Eleanor Shroder and April Culbertson. One
of the suspects pointed a gun at Shroder’s face. Shroder stated that she could see the
weapon was a semiautomatic, which she recognized by the clip inserted at the base of
the gun. A second of the four suspects went to Culbertson and put a semiautomatic gun
in her face. The gun was so close to her face that she could not have put her hand in
between the two.
{¶3} When Culbertson failed to put her hands up right away as directed, the
four laughed, told her they were serious, and again told her to put her hands up.
Although the suspect in front of her was wearing a mask, Culbertson was able to
identify the suspect as a young black male. The robbers took $139.48 in cash, as well
as potato chips and tobacco products.
{¶4} Two days later, another armed robbery took place on East Tuscarawas,
this time at the Family Dollar store. Three suspects carried out the crime, with one
wielding a handgun. The suspects ordered the two women working to open their cash
Stark County, Case No. 2011 CA 00049 3
drawers. They then took $594.00 from the cash drawers, cell phones, and other
miscellaneous merchandise from around the cash registers before fleeing the scene.
{¶5} One of the employees managed to push the police emergency call button
located under the counter during the robbery. Canton Police officers and a K-9 unit
promptly arrived at the scene and with the assistance of the K-9 unit, were able to track
the suspects to a house nearby on 4th Street. The three suspects, Ganzalee Jones,
Matthew Smith and Appellant, Vernard Hall, fled from the home. As they ran, Jones
dropped a gun, which Appellant picked up and threw into the creek behind the home.
The suspects then attempted to hide in a storm drain in the creek where they were
located and taken into custody.
{¶6} At the police station, Appellant agreed to speak with Sergeant Eric Risner.
While discussing the Family Dollar robbery, Appellant also admitted to his involvement
in the Maggiore's robbery. He would not, however, give any information as to who the
other three robbers were in the Maggiore's incident, nor who among the four of them
were the ones brandishing weapons.
{¶7} Appellant admitted that while fleeing police after the Family Dollar incident,
he threw the gun used in that incident into the creek. He claimed that the gun was
actually a BB gun.
{¶8} Upon speaking with Maggiore's employees Shroder and Culbertson, a
week after they were robbed, Sgt. Risner stated that Shroder was still very shaken up
over the event. Both women described the weapons used as similar in appearance to
Sgt. Risner's semiautomatic sidearm.
Stark County, Case No. 2011 CA 00049 4
{¶9} At the conclusion of his investigation, Sgt. Risner filed two complaints in
the juvenile court against Appellant alleging he committed acts that if committed by an
adult would constitute aggravated robbery for the Maggiore's incident, and complicity to
aggravated robbery for the Family Dollar incident.
{¶10} On December 3, 2010, the State of Ohio filed a motion for mandatory
transfer.
{¶11} On December 28, 2010, a probable cause hearing was held pursuant to
the State of Ohio's motion for transfer of jurisdiction pursuant to R.C. §2152.10 and R.C.
§2152.12.
{¶12} After hearing the evidence outlined above, in regard to the aggravated
robbery, the trial court concluded:
{¶13} “The juvenile's stipulated DOB is 2-3-93, and he was 17 years old on the
date of the alleged offenses. This juvenile is charged with one count of Aggravated
Robbery (F-l), a Category Two Offense. This juvenile had a firearm on or about his
person, or under his control and displayed or brandished the same ...”
{¶14} The trial court then ordered that Appellant be transferred to the General
Division of the Common Pleas Court of Stark County, Ohio, for criminal prosecution as
an adult for aggravated robbery. As to the complicity to aggravated robbery for the
Family Dollar incident, the court took the matter under advisement.
{¶15} On January 28, 2011, Appellant was indicted on one count of aggravated
robbery in violation of R.C. §2923.03(A)(2) and/or (A)(3) complicity to robbery.
{¶16} Appellant was arraigned on February 4, 2011.
Stark County, Case No. 2011 CA 00049 5
{¶17} On February 22, 2011, Appellant entered a plea of no contest to the
charges and was sentenced by the trial court.
{¶18} Appellant now appeals, with the only issue being that the trial court
abused its discretion when it transferred Appellant for criminal prosecution as an adult
to the Court of Common Pleas General Division.
ASSIGNMENT OF ERROR
{¶19} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT MADE ITS
RULING THAT THE APPELLANT BE TRANSFERRED FOR CRIMINAL
PROSECUTION AS AN ADULT FROM JUVENILE COURT TO THE COURT OF
COMMON PLEAS GENERAL DIVISION.”
I.
{¶20} In his sole assignment of error, Appellant claims that the trial court abused
its discretion in ordering mandatory bind-over from the juvenile division to the general
division. We disagree.
{¶21} Revised Code §2152.10 sets forth the procedure regarding bind-over:
{¶22} Mandatory transfer; discretionary transfer
{¶23} “(A) A child who is alleged to be a delinquent child is eligible for mandatory
transfer and shall be transferred as provided in section 2152.12 of the Revised Code in
any of the following circumstances:
{¶24} “(1) The child is charged with a category one offense and either of the
following apply:
{¶25} “(a) The child was sixteen years of age or older at the time of the act
charged.
Stark County, Case No. 2011 CA 00049 6
{¶26} “(b) The child was fourteen or fifteen years of age at the time of the act
charged and previously was adjudicated a delinquent child for committing an act that is
a category one or category two offense and was committed to the legal custody of the
department of youth services upon the basis of that adjudication.
{¶27} “(2) The child is charged with a category two offense, other than a
violation of section 2905.01 of the Revised Code, the child was sixteen years of age or
older at the time of the commission of the act charged, and either or both of the
following apply:
{¶28} “(a) The child previously was adjudicated a delinquent child for committing
an act that is a category one or a category two offense and was committed to the legal
custody of the department of youth services on the basis of that adjudication.
{¶29} “(b) The child is alleged to have had a firearm on or about the child's
person or under the child's control while committing the act charged and to have
displayed the firearm, brandished the firearm, indicated possession of the firearm, or
used the firearm to facilitate the commission of the act charged.
{¶30} (3) Division (A)(2) of section 2152.12 of the Revised Code applies.
{¶31} (B) Unless the child is subject to mandatory transfer, if a child is fourteen
years of age or older at the time of the act charged and if the child is charged with an
act that would be a felony if committed by an adult, the child is eligible for discretionary
transfer to the appropriate court for criminal prosecution. In determining whether to
transfer the child for criminal prosecution, the juvenile court shall follow the procedures
in section 2152.12 of the Revised Code. If the court does not transfer the child and if the
Stark County, Case No. 2011 CA 00049 7
court adjudicates the child to be a delinquent child for the act charged, the court shall
issue an order of disposition in accordance with section 2152.11 of the Revised Code.”
{¶32} Revised Code §2152.12(A)(1(b), provides:
{¶33} “(A)(1)(b) After a complaint has been filed alleging that a child is a
delinquent child by reason of committing a category two offense, the juvenile court at a
hearing shall transfer the case if section 2152.10 of the Revised Code requires the
mandatory transfer of the case and there is probable cause to believe that the child
committed the act charged”
{¶34} The Ohio Supreme Court held in State v. Iacona (2001), 93 Ohio St. 3d 83,
2001-Ohio-1292:
{¶35} “As the court of appeals in the instant case correctly observed, a juvenile
court at a bindover hearing need not “ ‘find as a fact that the accused minor is guilty of
the offense charged. It simply finds the existence of probable cause to so believe,’ ”
quoting State v. Whiteside (1982), 6 Ohio App. 3d 30, 36, 6 Ohio B. Rep. 140, 146, 6
Ohio App. 3d 30, 452 N.E.2d 332, 338. The juvenile court in the case at bar described its
responsibility in considering the issue of probable cause as being an obligation to
determine whether there is “some credible evidence as to each and every element of
the offense.” The court of appeals, on the other hand, defined “probable cause” as “a
flexible concept, grounded in probabilities, requiring more than a mere suspicion of guilt
but a degree of proof less than that required to sustain a conviction,” citing Brinegar v.
United States (1949), 338 U.S. 160, 175, 69 S. Ct. 1302, 1310-1311, 93 L. Ed. 1879,
1890. These two standards, while subtly different, are not irreconcilable.
Stark County, Case No. 2011 CA 00049 8
{¶36} “We hold that the state must provide credible evidence of every element of
an offense to support a finding that probable cause exists to believe that the juvenile
committed the offense before ordering mandatory waiver of juvenile court jurisdiction
pursuant to R.C. 2151.26(B). See Zarzycki, A Current Look at Ohio's Juvenile Justice
System on the 100th Anniversary of the Juvenile Court (1999), 47 Cleve.St.L.Rev. 627,
647. 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.
{¶37} “Accordingly, in determining the existence of probable cause 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. See Kent, 383 U.S. at 563, 86 S.Ct. at 1058, 16 L. Ed. 2d at 98.”
{¶38} In the case sub judice, the juvenile court complaint charged Appellant with
one count of aggravated robbery, in violation of R.C. §2911.01, which provides:
{¶39} Aggravated robbery
{¶40} “(A) No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or
offense, shall do any of the following:
{¶41} “(1) Have a deadly weapon on or about the offender's person or under the
offender's control and either display the weapon, brandish it, indicate that the offender
possesses it, or use it;”
Stark County, Case No. 2011 CA 00049 9
{¶42} In this case, the aggravated robbery charge requires the State to prove
that Appellant possessed a deadly weapon but the bind-over statute requires the State
to prove that he possessed a firearm.
{¶43} R.C. §2923.11 defines a firearm as:
{¶44} “(B)(1) “Firearm” means any deadly weapon capable of expelling or
propelling one or more projectiles by the action of an explosive or combustible
propellant. “Firearm” includes an unloaded firearm, and any firearm that is inoperable
but that can readily be rendered operable.
{¶45} “(2) When determining whether a firearm is capable of expelling or
propelling one or more projectiles by the action of an explosive or combustible
propellant, the trier of fact may rely upon circumstantial evidence, including, but not
limited to, the representations and actions of the individual exercising control over the
firearm.”
{¶46} In the case sub judice, Appellant admitted his involvement in the
Maggiore’s robbery as well as the Family Dollar robbery. Appellant, however, argues
that the State failed to present evidence to show a firearm was used in the Maggiore
robbery or that Appellant had a firearm on or about his person or under his control
during that robbery. Accordingly, Appellant asserts the bind-over was improper.
{¶47} Initially we find that the acts charged in the complaint in this matter would
constitute the offense of aggravated robbery, if committed by an adult, a category two
offense. Further, it was stipulated that Appellant was 17 years old at the time of the
offense. The charge therefore brings the case within the mandatory bind-over
provisions.
Stark County, Case No. 2011 CA 00049 10
{¶48} At the bind-over hearing in this case, the State presented the testimony of
Sgt. Risner. Sgt. Risner testified that he interviewed both Eleanor Schroder and April
Culberson, the Maggiore’s employees who were working at the time of the robbery, and
both women stated that three of the four robbers had weapons, which they described as
semi-automatic handguns. Both women recounted to him how the robbers pointed the
guns in their faces and warned them “Look, we’re serious here. Put your hands up.” (T.
at 9-11).
{¶49} Concerning operability, “the trier of fact may rely upon circumstantial
evidence, including, but not limited to, the representations and actions of the individual
exercising control over the firearm.” R.C. §2923.11(B)(2). “The [S]tate can prove that
the weapon was operable or could readily have been rendered operable at the time of
the offense in a variety of ways without admitting the firearm allegedly employed in the
crime into evidence.” State v. Gains (1989), 46 Ohio St. 3d 65, 545 N.E.2d 68, syllabus.
{¶50} In Thompkins, supra, the Ohio Supreme Court held in paragraph one of
the syllabus, that “the trier of fact may consider all relevant facts and circumstances
surrounding the crime, which include any implicit threat made by the individual in control
of the firearm” when determining whether a weapon was operable. Since Thompkins,
this Court has routinely found sufficient evidence to support a firearm specification when
the defendant brandished a firearm and implicitly threatened to fire it by pointing it at the
victim. See State v. Hayes, Cuyahoga App. No. 93785, 2010–Ohio–5234; State v.
Brooks, Cuyahoga App. No. 92389, 2009–Ohio–5559; State v. Robinson, Cuyahoga
App. No. 80718, 2003–Ohio–156.
Stark County, Case No. 2011 CA 00049 11
{¶51} In this case, we have an implicit threat of violence towards the victims.
The State offered sufficient evidence of operability through testimony that the robbers
pointed guns in the employees’ faces and warned them that they were “serious” and
that they should put their hands up. (T. at 9-11). Sgt. Risner testified that both women
believed the guns were real and they were in fear for their lives. Sgt. Risner further
testified that the women stated that the gun looked similar to the semiautomatic
handgun which he carried as his service weapon.
{¶52} Based on the foregoing, we agree with the trial court's finding of probable
cause to believe Appellant committed the offense alleged and find the court's
relinquishment of jurisdiction proper pursuant to R.C. §2152.12.
{¶53} Appellant’s sole assignment of error is overruled.
{¶54} For the foregoing reasons, the judgment of the Court of Common Pleas,
Stark County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Edwards, J., concur.
___________________________________
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JUDGES
JWW/d 0728
Stark County, Case No. 2011 CA 00049 12
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
VERNARD A. HALL :
:
Defendant-Appellant : Case No. 2011 CA 00049
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs assessed to Appellant.
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JUDGES