State v. Dell

[Cite as State v. Dell, 2022-Ohio-2483.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, PJ.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
vs. :
:
: Case No. 2021 CA 00079
ERIC DELL, JR. :
:
: OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Court of Common Pleas, Case No. 2021
CR 00263
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 19, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM C. HAYES WILLIAM T. CRAMER
Licking County Prosecutor 470 Olde Worthington Road, Suite 200
BY: J. BRANDON PIGG Westerville, OH 43082
Assistant Prosecutor
20 S. Second Street, 4th Floor
Newark OH 43055
Licking County, Case No. 2021 CA 00079 2
Gwin, P.J.
{¶1} Defendant-appellant Eric Dell, Jr. [“EDJ”] appeals his conviction and
sentence after a negotiated guilty plea in the Licking County Court of Common Pleas.
Facts and Procedural History
{¶2} EDJ was charged in a juvenile complaint with aggravated robbery in
violation of R.C. 2911.01(A)(1), a first-degree felony; felonious assault in violation of R.C.
2903.11(A)(2), a second-degree felony; improperly discharging a firearm at or into a
habitation in violation of R.C. 2923.161(A)(1), a second-degree felony; and having a
weapon while under disability in violation of R.C. 2923.13(A)(2), a third-degree felony.
These charges included a firearm use specification under R.C. 2941.145.
{¶3} On May 5, 2021, the juvenile court held a bind-over probable cause
hearing pursuant to Juv.R. 30(A). The following facts were presented during that
hearing.
{¶4} At the start of the hearing, the state asked for a preliminary ruling on its
notice of intent to rely on hearsay evidence during the hearing. E D J ’ s counsel
o b j e c t e d arguing that denying EDJ the ability to confront and cross-examine the
witnesses violated the D u e Process clause of the United States and Ohio constitutions.
The trial court overruled E D J ’ s objections, noting that although the Fifth District
Court of Appeals had not ruled on this issue; surrounding districts have unanimously
concluded that hearsay is admissible in juvenile bind over hearings. P C . T . a t 9-
121. Later, when the state attempted to elicit hearsay, E D J ’ s counsel objected and
requested a continuing objection.
1 For clarity, the transcript of the probable cause hearing held May 5, 2021 will be referred to as
“PC.T.”
Licking County, Case No. 2021 CA 00079 3
{¶5} EDJ was born September 26, 2004, and was sixteen years old on February
22, 2021. PC.T. at 18. The guardian ad litem [“GAL”] testified about EDJ’s prior juvenile
history, which included adjudications for having a weapon while under disability and
attempted felonious assault. PC.T. at 126-127. Furthermore, EDJ was on parole at the
time of this incident. Id.{¶6} On February 22, 2021, two 9-1-1 calls were made between 3:07 and 3:08
p.m. regarding a shooting occurring at 2 Pleasant Street, Newark, Ohio. PC.T. at 39-412.
Hannah Schaffer who resided at 2 Pleasant Street made one of those 9-1-1 calls. PC.T.
at 40-41. Officers responded and found Alexander Nkuitabong [“Alex”] shot on the porch
of the residence. Id. at 43.
{¶7} Detective Jarad Harper testified that Ms. Shaffer told police that someone
she only knew as "E.J." had shot Alex. When officers spoke to Alex, he also stated
someone he knew as “E.J.” had shot him. PC.T. at 87. When later shown a photograph
of EDJ, Alex positively identified him as the person who shot him. Id.
{¶8} Detective Harper testified that Ms. Shaffer described the shooter fleeing
in a blue Impala. In the second call, the caller described two black males, wearing
black clothing, and brandishing a gun. The caller said they left in a blue Ford Focus.
PC.T. at 46.
{¶9} The detective spoke with Alex when he returned from the hospital. Alex
reported that “EJ” came over to see him with an unknown male. They wanted to come
inside, but one of Alex’s roommates thought it was strange and said no. One of the males
2 Recordings of the two 9-1-1 calls were played for the court and admitted into evidence. State’s
Exhibits A and B.
Licking County, Case No. 2021 CA 00079 4
asked Alex where he was from and then told him to, "Run your pockets." PC.T. at 53.
Alex saw “EJ” with a gun and was then shot in the leg. Alex confirmed that “EJ” was EDJ.
PC.T. at 52-54. Alex said the shooter was in Snapchat as "GMG Glizzo," but could not
find him. One of Alex’s roommates said he heard of that person and pulled up the account
on his phone. Alex then identified EDJ through the “GMG Glizzo” Snapchat account on
his roommate's phone. PC.T.at 86-87.
{¶10} The detective testified that a neighbor observed the blue vehicle and two
males walking down the road. PC.T. at 48. The neighbor asked them if they were looking
for someone, but they gave her a name she did not recognize. She saw them continue
down the street toward 2 Pleasant Street and a few moments later, she heard a gunshot.
The neighbor had cameras at the front of her house and provided the footage to the
police.3 The detective reviewed the footage, which show a blue vehicle travelling
northbound when two males jump into the rear seats and the car then drives off. PC.T.
at 46-50.
{¶11} Detectives also found a cellphone at the scene of the shooting. PC.T. at
43. The phone was found to belong to Gilbert Frazier, III. PC.T. at 44. The contents of
the phone were examined and there were photos of a blue Ford Focus contained therein.
Id. at 56. In those photos, detectives were able to identify the license plate number, which
came back being registered to Aiyana Tate. Id. Detectives spoke to Ms. Tate and she
identified EDJ as one of the persons she was with in the car on February 22, 2021 the
day of the shooting. PC.T. at 58.
3 The security footage was played for the court and admitted into evidence. State’s Exhibit D.
Licking County, Case No. 2021 CA 00079 5
{¶12} EDJ’s cellphone was also recovered. PC.T. at 58. On the cellphone was
the application "Snapchat" and it was signed in under EDJ’s account. Detective Harper
testified that a feature of Snapchat is that it monitors and keeps records regarding the
location of the account holder. Detective Harper testified that this location data is
recorded by the longitudinal and latitudinal location. Detective Harper testified that the
records for EDJ’s Snapchat account were obtained and revealed that at 3:04 pm, EDJ
was within the margin of error of 120 feet of 2 Pleasant Street. PC.T. at 63
{¶13} The defense noted that a report from a second police officer lists the
suspect as "Elijah Morrow.” Detective Harper said that he did not see that report until
later. The detective did not know who Morrow was and did not recall ever looking into
Morrow. The detective admitted that he probably just dismissed Morrow because the
victim identified EDJ. The detective admitted that Alex did not know EDJ’s name; instead,
he only knew him as “EJ.” PC.T. at 93-96.
{¶14} Additionally, the defense played a recording from another officer where Alex
can be heard saying that he knew "EJ," but did not know the person who shot him. Alex
also told the officer that he was asked where he was from, and when he responded
"Orlando," he was shot. Alex made no mention of being asked to "run his pockets.”
Based on this recording, Detective Harper admitted that Alex had changed his story.
PC.T. at 96-97; 117-121.
{¶15} At the conclusion of the probable cause hearing, the juvenile court found
that EDJ was sixteen years old at the time of the alleged offenses, and found probable
cause to believe that he committed the offenses and used a firearm during the offenses.
Because the first count for aggravated robbery with a firearm was a mandatory transfer
Licking County, Case No. 2021 CA 00079 6
offense, EDJ was immediately transferred to the Court of Common Pleas on that count.
The remaining discretionary-transfer offenses were scheduled for an amenability hearing.
{¶16} On May 13, 2021, EDJ was indicted for aggravated robbery with a firearm
use specification as alleged in the original juvenile complaint.
{¶17} On June 30, 2021, the juvenile court held an amenability hearing on the
remaining counts from the juvenile complaint and found that EDJ was not amenable to
rehabilitation through the juvenile court system. The court then transferred the remaining
counts to the Licking Court of Common Pleas. Despite the transfer order, it does not
appear that EDJ was ever indicted or otherwise charged as an adult with these counts.
{¶18} On September 7, 2021, EDJ pled guilty to the aggravated robbery with the
firearm use specification. The trial court then imposed a prison term of eight to twelve
years on the aggravated robbery, with a consecutive term of three years for the firearm
use specification.
Assignments of Error
{¶19} EDJ raises two Assignments of Error,
{¶20} “I. APPELLANT’S RIGHT TO DUE PROCESS UNDER THE STATE AND
FEDERAL CONSTITUTIONS WERE VIOLATED WHEN THE JUVENILE COURT AT
THE BINDOVER HEARING DENIED APPELLANT THE ABILITY TO CONFRONT HIS
ACCUSERS.
{¶21} “II. THE JUVENILE COURT ERRED BY FINDING PROBABLE CAUSE
THAT APPELLANT COMMITTED AGGRAVATED ROBBERY AND PERSONALLY
USED A FIREARM.”
Licking County, Case No. 2021 CA 00079 7
I.
{¶22} EDJ claims in his First Assignment of Error that the trial court violated his
constitutional right to confront and cross-examine his accusers by allowing the admission
of hearsay testimony and not requiring the witnesses to testify at the hearing on the
motion to transfer the case to the Licking County Court of Common Pleas.
Standard of Appellate Review
{¶23} “‘When a court’s judgment is based on an erroneous interpretation of the
law, an abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville
Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6;
Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL
2572598, ¶ 50.’ Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496,
909 N.E.2d 1237, ¶ 13.” State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d
440, ¶6. Because the assignment of error involves the interpretation of the constitutional
protection mandated by the Confrontation Clause of the United States and Ohio
constitution, which is a question of law, we review the trial court’s decision de novo. Med.
Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13;
Accord, State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9; Hurt
v. Liberty Township, Delaware County, OH, 5th Dist. Delaware No. 17 CAI 05 0031, 2017-
Ohio-7820, ¶ 31.
Issue for appellate review: Whether fundamental fairness require that juvenile
offenders be permitted to confront and cross-examine their accusers whose hearsay
statements are presented to provide probable cause for mandatory transfer to adult
court.
Licking County, Case No. 2021 CA 00079 8
Background
{¶24} “Ohio’s juvenile courts are statutory courts, created by the General
Assembly.” In re Z.R., 144 Ohio St.3d 380, 2015-Ohio-3306, 44 N.E.2d 239, ¶ 14. “As a
statutory court, the juvenile court has limited jurisdiction, and it can exercise only the
authority conferred upon it by the General Assembly.” Id. It is axiomatic that the juvenile
court has exclusive original jurisdiction of children alleged to be delinquent based on
commission of an act that would constitute a crime if committed by an adult. State v.
Iacona, 93 Ohio St.3d 83, 89, 2001-Ohio-1292, 752 N.E.2d 937, citing R.C.
2151.23(A)(1) and 2151.02(A); State v. Golphin, 81 Ohio St.3d 543, 544–545, 692
N.E.2d 608, 610(1998).
{¶25} In Ohio, a juvenile may be transferred to adult court for criminal prosecution
by way of R.C. 2152.12, under which some transfers are mandatory and some are
discretionary:
“Mandatory transfer removes discretion from judges in the transfer
decision in certain situations.” State v. Hanning, 89 Ohio St.3d 86, [90], 728
N.E.2d 1059 (2000); R.C. 2152.12(A). “Discretionary transfer, as its name
implies, 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.” Id.;
R.C. 2152.12(B).
State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894, ¶10; State v. Smith,
Slip Op. No. 2019-1813, 2022-Ohio-274(Feb 3, 2022), ¶22. By giving juvenile courts
bindover authority, the General Assembly created an exception to the juvenile courts’
Licking County, Case No. 2021 CA 00079 9
exclusive jurisdiction over juvenile offenders. Smith, ¶ 27. R.C. 2152.10(A) sets forth
which juvenile cases are subject to mandatory bindover and provides:
(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:
(1) The child is charged with a category one offense and either of the
following apply:
(a) The child was sixteen years of age or older at the time of the act
charged.
(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.
(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:
(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.
Licking County, Case No. 2021 CA 00079 10
(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.
{¶26} Aggravated robbery is a category-two offense, R.C. 2152.02(BB)(1), and
EDJ was 16 years old at the time the offense was committed. Because he was also
charged with a firearm specification, automatic transfer was required. R.C.
2152.10(A)(2)(b). A juvenile court must transfer a juvenile to adult court automatically
under these circumstances if “there is probable cause to believe that the child committed
the act charged.” R.C. 2152.12(A)(1)(b)(ii). State v. Aalim, 150 Ohio St.3d 489, 2017-
Ohio-2956, 83 N.E.3d 883, ¶13.
Requirements for mandatory bind-over to adult court
{¶27} In a bindover hearing, “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) [now R.C. 2152.12(A)(1)(a)]. * * * 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.” State v. Iacona,
93 Ohio St.3d 83, 93, 2001-Ohio-1292, 752 N.E.2d 937. 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. Id., citing Kent v. United States, 383 U.S. 541,
Licking County, Case No. 2021 CA 00079 11
86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). Determination of the merits of the competing
prosecution and defense theories, both of which [are] credible, ultimately [is] a matter for
the factfinder at trial. Iacona at 96. Accord, State v. Culbertson, 5th Dist. Stark No.
2018CA00183, 2020-Ohio-903, ¶60.
{¶28} The juvenile court’s role in a mandatory bind-over proceeding is that of a
gatekeeper because it is “charged with evaluating whether sufficient credible evidence
exists to warrant going forward with a prosecution on a charge that the legislature has
determined triggers a mandatory transfer of jurisdiction to adult court.” In re A.J.S., 120
Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶46 quoting In re A.J.S., 173 Ohio
App.3d 171, 2007-Ohio-3216, 877 N.E.2d 997, ¶ 22. Credible evidence of every element
of an offense to support a finding of probable cause does not have to be unassailable.
Iacona, 93 Ohio St.3d at 93; 95, 752 N.E.2d 937.
{¶29} In the case at bar, the state obtained a ruling from the juvenile court judge
prior to the beginning of the bindover hearing allowing the state to establish probable
cause to believe that EDJ committed the offense almost entirely upon hearsay testimony.
Specifically, Alex, his roommate, the neighbor who spoke to two suspicious males in the
vicinity and provided surveillance camera video to the police, Gilbert Frazier, III, and
Aiyana Tate did not testify and were not subject to cross-examination during the hearing.
Rather, the court permitted Detective Jarad Harper to testify, over objection, what each
witness told him.
{¶30} At the time EDJ’s brief was filed in this case, the Ohio Supreme Court was
reviewing the issue of whether juvenile offenders have a state and federal due process
right to cross-examine witnesses whose hearsay statements are presented to provide
Licking County, Case No. 2021 CA 00079 12
probable cause for mandatory transfer to adult court. State v. Fuell, 164 Ohio St.3d 1419,
2021-Ohio-2923, 172 N.E.3d 1042. However, subsequent to oral arguments in that case,
the Ohio Supreme Court dismissed the case as having been improvidently accepted.
State v. Fuell, Slip Op. No. 2021-0794, Judgement Entry, filed May 17, 2022.
The procedures applicable to adult felony cases
{¶31} Many of the authorities cited by the respective parties in this case analogize
a bind over hearing in juvenile court with a preliminary hearing in adult court. [Appellant’s
brief at 10; Appellee’s brief at 6].
{¶32} Preliminary hearings in adult felony cases are governed by Crim. R. 5,
which states, in relevant part,
B) Preliminary Hearing in Felony Cases; Procedure.
(1) In felony cases a defendant is entitled to a preliminary hearing
unless waived in writing. If the defendant waives preliminary hearing, the
judge or magistrate shall forthwith order the defendant bound over to the
court of common pleas. Except upon good cause shown, any
misdemeanor, other than a minor misdemeanor, arising from the same act
or transaction involving a felony shall be bound over or transferred with the
felony case. If the defendant does not waive the preliminary hearing, the
judge or magistrate shall schedule a preliminary hearing within a reasonable
time, but in any event no later than ten consecutive days following arrest or
service of summons if the defendant is in custody and not later than fifteen
consecutive days following arrest or service of summons if the defendant is
not in custody. The preliminary hearing shall not be held, however, if the
Licking County, Case No. 2021 CA 00079 13
defendant is indicted. With the consent of the defendant and upon a
showing of good cause, taking into account the public interest in the prompt
disposition of criminal cases, time limits specified in this division may be
extended. In the absence of such consent by the defendant, time limits may
be extended only as required by law, or upon a showing that extraordinary
circumstances exist and that delay is indispensable to the interests of
justice.
(2) At the preliminary hearing the prosecuting attorney may state
orally the case for the state, and shall then proceed to examine witnesses
and introduce exhibits for the state. The defendant and the judge or
magistrate have full right of cross-examination, and the defendant has the
right of inspection of exhibits prior to their introduction. The hearing shall
be conducted under the rules of evidence prevailing in criminal trials
generally.
(3) At the conclusion of the presentation of the state’s case,
defendant may move for discharge for failure of proof, and may offer
evidence on the defendant’s own behalf....
(4) Upon conclusion of all the evidence and the statement, if any, of
the accused, the court shall do one of the following:
(a) Find that there is probable cause to believe the crime alleged or
another felony has been committed and that the defendant committed it,
and bind the defendant over to the court of common pleas of the county or
any other county in which venue appears.
Licking County, Case No. 2021 CA 00079 14
(b) Find that there is probable cause to believe that a misdemeanor
was committed and that the defendant committed it, and retain the case for
trial or order the defendant to appear for trial before an appropriate court.
(c) Order the accused discharged.
(d) Except upon good cause shown, any misdemeanor, other than a
minor misdemeanor, arising from the same act or transaction involving a
felony shall be bound over or transferred with the felony case.
(5) Any finding requiring the accused to stand trial on any charge
shall be based solely on the presence of substantial credible evidence
thereof. No appeal shall lie from such decision and the discharge of
defendant shall not be a bar to further prosecution.
***
Emphasis added.
{¶33} Crim.R.5 (B)(2) expressly provides that the Rules of Evidence apply to
preliminary hearings4. This is a departure from the rules governing federal procedure in
preliminary hearings; the evidentiary rules are expressly inapplicable to preliminary
examinations in federal criminal cases, except as to privilege. See Fed.Evid.R.
1101(d)(3). See also Staff Note to former Fed.R.Crim.P. 5.1(a) (since the rules of
evidence are explicitly inapplicable to preliminary hearings, Crim.R. 5.1 need no longer
specifically explain, “probable cause may be based upon hearsay evidence in whole or in
4 The Ohio Supreme Court’s holding that the constitutional right to confront one's accusers “relates
to the actual trial for the commission of the offense and not to preliminary examination” in Henderson v.
Maxwell, 176 Ohio St. 187, 188, 198 N.E.2d 456 (1964) was decided before the adoption of the Ohio Rules
of Criminal Procedure, originally effective July 1, 1973. See, e.g. State v. Barner, 5th Dist. Muskingum No.
CA-85-15, 1986 WL 4616 (Apr 16, 1986).
Licking County, Case No. 2021 CA 00079 15
part”). See, In the Matter of: B.W., 7th Dist. Mahoning No. 17 MA 0071, 2017-Ohio-9220,
103 N.E.3d 266, ¶42.
{¶34} Furthermore, a finding of probable cause by the court conducting the
preliminary hearing is not appealable. Crim.R. 5(B)(5).
{¶35} There is no constitutional right to a preliminary hearing, and, when an
indictment is returned by a grand jury, a hearing is no longer required. State v. Morris,
42 Ohio St.2d 307, 326, 329 N.E.2d 85(1975); Crim.R. 5(B).
{¶36} The state contends, and many of the cited authorities agree, that the United
States Supreme Court has “explained ‘[t]he right to confrontation is basically a trial right.’
Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). The Barber
Court went [on] to explain, ‘[a] preliminary hearing is ordinarily a much less searching
exploration into the merits of a case than a trial, simply because its function is the more
limited one of determining whether probable cause exists to hold the accused for trial.’”
[Appellee’s brief at 4]. However, Barber did not address the right to confrontation or the
admission of hearsay evidence in a preliminary or probable cause hearing.
{¶37} In Barber, Woods gave incriminating testimony against Barber at Barber’s
preliminary hearing. 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255. Barber’s attorney
waived his cross-examination of Woods.
{¶38} When Barber’s case went to trial, Woods was in prison in another state
some 225 miles from the trial court. Id. at 720. The state offered the transcript of Woods’s
preliminary hearing arguing Woods was unavailable. Barber objected arguing that his
right to confront his accusers would be undermined. Id. at 720-721. The trial court
Licking County, Case No. 2021 CA 00079 16
overruled the objection. The transcript of Woods’s preliminary hearing testimony was
read into evidence and Barber was subsequently found guilty.
{¶39} The United States Supreme Court framed the issue,
The question presented is whether petitioner was deprived of his
Sixth and Fourteenth Amendment right to be confronted with the witnesses
against him at his trial in Oklahoma for armed robbery, at which the principal
evidence against him consisted of the reading of a transcript of the
preliminary hearing testimony of a witness who at the time of trial was
incarcerated in a federal prison in Texas.
Id. at 720. The Barber court observed,
It is true that there has traditionally been an exception to the
confrontation requirement where a witness is unavailable and has given
testimony at previous judicial proceedings against the same defendant
which was subject to cross-examination by that defendant. E.g., Mattox v.
United States, supra (witnesses who testified in original trial died prior to the
second trial). This exception has been explained as arising from necessity
and has been justified on the ground that the right of cross-examination
initially afforded provides substantial compliance with the purposes behind
the confrontation requirement. See 5 Wigmore, Evidence ss 1395—1396,
1402 (3d ed. 1940); C. McCormick, Evidence ss 231, 234 (1954).
390 U.S. at 722, 88 S.Ct. 1318, 20 L.Ed.2d 255 (emphasis added). However, the Court
found the state made no effort to procure Woods attendance at trial,
Licking County, Case No. 2021 CA 00079 17
In short, a witness is not ‘unavailable’ for purposes of the foregoing
exception to the confrontation requirement unless the prosecutorial
authorities have made a good-faith effort to obtain his presence at trial. The
State made no such effort here, and, so far as this record reveals, the sole
reason why Woods was not present to testify in person was because the
State did not attempt to seek his presence. The right of confrontation may
not be dispensed with so lightly.
Id. at 724-725. Clearly, the Barber Court addressed the issue of a defendant’s right to
confrontation at trial,
While there may be some justification for holding that the opportunity
for cross-examination of a witness at a preliminary hearing satisfies the
demand of the confrontation clause where the witness is shown to be
actually unavailable, this is not, as we have pointed out, such a case.
Barber, 390 U.S. at 725-726 (footnote omitted). As Justice Brennan explained,
In Barber we stated that confrontation at a preliminary hearing cannot
compensate for the absence of confrontation at trial, because the nature
and objectives of the two proceedings differ significantly. In that case, the
prosecution argued that the accused had waived his right to cross-
examination at the preliminary hearing. Though we rejected that argument,
to put beyond doubt the necessity for confrontation at trial, we stated:
‘Moreover, we would reach the same result on the facts of this case had
petitioner’s counsel actually cross-examined (the witness) at the preliminary
hearing. * * * The right to confrontation is basically a trial right. It includes
Licking County, Case No. 2021 CA 00079 18
both the opportunity to cross-examine and the occasion for the jury to weigh
the demeanor of the witness. A preliminary hearing is ordinarily a much less
searching exploration into the merits of a case than a trial, simply because
its function is the more limited one of determining whether probable cause
exists to hold the accused for trial.’ Id., at 725, 88 S.Ct., at 1322.7 We
applied Barber retroactively in Berger v. California, 393 U.S. 314, 89 S.Ct.
540, 21 L.Ed.2d 508 (1969), a case in which defense counsel did have an
opportunity to cross-examine the witness at the preliminary hearing. We
held, nonetheless, that ‘(c)learly, petitioner’s inability to cross-examine * * *
at trial may have had a significant effect on the ‘integrity of the fact-finding
process.” Id., at 315, 89 S.Ct. at 541.
California v. Green, 399 U.S. 149, 195-196, 90 S.Ct. 1930, 26 L.Ed.2d 489 (Brennan, J.
dissenting) (emphasis added). In other words, cross-examination at the preliminary
hearing rarely approximates that at trial, because the two serve different purposes.
Green, 399 U.S. at 197-198.
{¶40} Barber does not support the proposition that a defendant has no right to
confront and cross-examine his accusers during a preliminary hearing, or that probable
cause may be based upon hearsay. It simply holds that confrontation at a preliminary
hearing is not a substitute for confrontation at trial when there is no showing the witness
is not available to testify at trial.
{¶41} A preliminary hearing is a critical stage of the criminal process during which
a defendant’s fundamental right to counsel is protected by the Sixth and Fourteenth
Amendments to the United States Constitution. Coleman v. Alabama, 399 U.S. 1, 90
Licking County, Case No. 2021 CA 00079 19
S.Ct. 1999, 26 L.Ed.2d 387(1970); State v. Spates, 64 Ohio St.3d 269, 595 N.E.2d 351,
paragraph one of the syllabus. In Coleman, the Court explained that under Alabama law,
The sole purposes of a preliminary hearing are to determine whether
there is sufficient evidence against the accused to warrant presenting his
case to the grand jury and, if so, to fix bail if the offense is bailable. 44
Ala.App., at 433, 211 So.2d, at 920.
399 U.S. at 8, 90 S.Ct. 1999, 26 L.Ed.2d 387. The Court explained the important role an
attorney plays at such preliminary probable cause hearings,
First, the lawyer’s skilled examination and cross-examination of
witnesses may expose fatal weaknesses in the State’s case that may lead
the magistrate to refuse to bind the accused over. Second, in any event,
the skilled interrogation of witnesses by an experienced lawyer can fashion
a vital impeachment tool for use in cross-examination of the State’s
witnesses at the trial, or preserve testimony favorable to the accused of a
witness who does not appear at the trial. Third, trained counsel can more
effectively discover the case the State has against his client and make
possible the preparation of a proper defense to meet that case at the trial.
Fourth, counsel can also be influential at the preliminary hearing in making
effective arguments for the accused on such matters as the necessity for
an early psychiatric examination or bail.
399 U.S. at 9, 90 S.Ct. 1999, 26 L.Ed.2d 387 (emphasis added).
{¶42} After the preliminary hearing is concluded, if the court finds probable cause,
the case is sent to the grand jury.
Licking County, Case No. 2021 CA 00079 20
The Grand Jury
{¶43} In Kaley v. United States, the Court addressed a defendant’s ability to
challenge an indictment based upon the reliability or competence of the evidence
presented to the grand jury,
This Court has often recognized the grand jury’s singular role in
finding the probable cause necessary to initiate a prosecution for a serious
crime. See, e.g., Costello v. United States, 350 U.S. 359, 362, 76 S.Ct.
406, 100 L.Ed. 397 (1956). “[A]n indictment ‘fair upon its face,’ and returned
by a ‘properly constituted grand jury,’ ” we have explained, “conclusively
determines the existence of probable cause” to believe the defendant
perpetrated the offense alleged. Gerstein v. Pugh, 420 U.S. 103, 117, n.
19, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (quoting Ex parte United States, 287
U.S. 241, 250, 53 S.Ct. 129, 77 L.Ed. 283 (1932)). And “conclusively” has
meant, case in and case out, just that. We have found no “authority for
looking into and revising the judgment of the grand jury upon the evidence,
for the purpose of determining whether or not the finding was founded upon
sufficient proof.” Costello, 350 U.S., at 362–363, 76 S.Ct. 406 (quoting
United States v. Reed, 27 F.Cas. 727, 738 (No. 16,134)
(C.C.N.D.N.Y.1852) (Nelson, J.)). To the contrary, “the whole history of the
grand jury institution” demonstrates that “a challenge to the reliability or
competence of the evidence” supporting a grand jury’s finding of probable
cause “will not be heard.” United States v. Williams, 504 U.S. 36, 54, 112
S.Ct. 1735, 118 L.Ed.2d 352 (1992) (quoting Costello, 350 U.S., at 364, 76
Licking County, Case No. 2021 CA 00079 21
S.Ct. 406, and Bank of Nova Scotia v. United States, 487 U.S. 250, 261,
108 S.Ct. 2369, 101 L.Ed.2d 228 (1988)). The grand jury gets to say—
without any review, oversight, or second-guessing—whether probable
cause exists to think that a person committed a crime.
571 U.S. 320, 328, 134 S.Ct. 1090, 188 L.Ed.2d 46(2014).
{¶44} The Rules of Evidence do not apply to grand jury proceedings. Evid.R.
101(D)(2); State v. Brown, 38 Ohio St.3d 305, 308, 528 N.E.2d 523(1988). Hearsay is
admissible in grand jury proceedings. Id. Furthermore, it is generally accepted that an
indictment by the grand jury renders any defects in the preliminary hearing moot Dowell
v. Maxwell, 174 Ohio St. 289, 290-291, 189 N.E.2d 95(1963); State v. Davis, 5th Dist.
Richland No. 2019 CA 0112, 2020-Ohio-3617, ¶ 16 citing State v. Washington, 30 Ohio
App.3d 98, 99, 506 N.E.2d 1203 (8th Dist. 1986) and Styer v. Bricta, 69 Ohio App.3d 738,
591 N.E.2d 1255 (6th Dist. 1990); See also, State v. Lichtenwalter, 5th Dist. Guernsey
Nos. 20CA000013, 20CA000023, 2021-Ohio-1794, ¶32. Further, Crim. R. 5 prohibits an
appeal from the probable cause finding.
{¶45} Thus, if this case originated as an adult criminal proceeding, EDJ would not
be entitled to challenge a probable cause finding made after a preliminary hearing or after
an indictment is returned by the grand jury.
Juvenile Court Proceedings
{¶46} The Juvenile Rules “prescribe the procedure to be followed in all juvenile
courts of this state in all proceedings coming within the jurisdiction of such courts” (with
listed exceptions). Juv.R. 1(A). The juvenile rule providing for a pre-transfer preliminary
Licking County, Case No. 2021 CA 00079 22
bindover hearing, Juv.R. 30(A), does not contain Crim.R. 5(B)(2)’s incorporation of the
evidentiary rules in probable cause hearings.
{¶47} The right to confrontation is applicable to proceedings in juvenile court.
While not addressing the issue of probable cause hearings, the United States Supreme
Court has stated, “absent a valid confession, a determination of delinquency and an order
of commitment to a state institution cannot be sustained in the absence of sworn
testimony subjected to the opportunity for cross-examination in accordance with our law
and constitutional requirements.” In re Gault, 387 U.S. 1, 57, 87 S.Ct. 1428, 18 L.Ed.2d
527 (1967), overruled on other grounds by Allen v. Illinois, 478 U.S. 364, 372-73, 106
S.Ct. 2988, 92 L.Ed.2d 296 (1986). In other words, the right to confrontation is applicable
to adjudicatory hearings held in juvenile court.
{¶48} Because of the “tremendous consequences” following a decision that a child
must lose the protections of the juvenile system and face trial as an adult, a bindover
proceeding — a “critically important” stage in juvenile proceedings — must “measure up
to the essentials of due process and fair treatment.” Kent v. United States, 383 U.S. 541,
553-554, 556, 560-562, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) (There must be “procedural
regularity” in a bindover proceeding “sufficient in the particular circumstances to satisfy
the basic requirements of due process and fairness.”); see also In re D.M., 140 Ohio St.3d
309, 2014-Ohio-3628, 18 N.E.3d 404, ¶ 11. Moreover, the child's right to counsel is
required by Juv.R. 3, which provides that a child may not waive the right to be represented
by counsel at a transfer hearing conducted pursuant to Juv.R. 30. State v. D.W., 133
Ohio St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894, ¶ 36.
Licking County, Case No. 2021 CA 00079 23
{¶49} Juvenile bindover hearings differ from preliminary hearings in several
important respects. First, the state may not seek a direct indictment against a juvenile in
the event the court finds no probable cause to transfer the case. Additionally, the evidence
presented during the bindover hearing must support a finding of probable cause that the
juvenile committed an offense for which bindover is either mandated or discretionary. If
the evidence supports only a charge that falls outside the permissible cases, then
bindover is not appropriate. Finally, a preliminary hearing is not constitutionally mandated;
however a juvenile transfer hearing is a prerequisite that must be held in order for the
adult court to acquire jurisdiction to proceed with the juvenile case. State v. Smith, Slip
Op. No. 2019-1813, 2022-Ohio-274, ¶41; 44 (Feb 3, 2022).
The case at bar
{¶50} EDJ did confront and cross-examine the witnesses that the state presented
at the bindover hearing. Although he is not required to do so, nothing prevented EDJ
from calling witnesses or presenting evidence on his own behalf to dispute the issue of
probable cause. EDJ did present evidence to suggest another individual was the shooter
and that the shooting did not occur during an attempted theft offense. However, he
argues in this case, in essence, that he could not be bound over absent the testimony of
the victim. [Appellant’s brief at 11].
{¶51} We must first point out somewhat of an anomaly. EDJ did not have just one
probable cause determination. In the case at bar, after the juvenile court found probable
cause to transfer EDJ’s case, the Licking County Grand Jury returned an Indictment
against EDJ for one count of aggravated robbery with a firearm specification. [Docket
Entry No. 7]. Thus, it would appear that a second finding of probable cause to believe
Licking County, Case No. 2021 CA 00079 24
EDJ committed the offense was made by the grand jury. As previously explained the
return of an indictment ordinarily renders any defects in the preliminary hearing moot.
{¶52} However, “[a] finding of probable cause is a jurisdictional prerequisite under
R.C. 2152.12 to transferring a child to adult court for prosecution of an act charged.” State
v. Smith, Slip Op. No. 2019-1813, 2022-Ohio-274, ¶44 (Feb 3, 2022). “Where a juvenile
court purports to transfer a juvenile case to adult court without having complied with the
proper procedures in R.C. 2152.12, the adult court proceeds in the absence of subject-
matter jurisdiction, and any judgment entered by the adult court is a nullity and void ab
initio.” State v. J.T.S., 10th Dist. No. 14AP-516, 2015-Ohio-1103, 2015 WL 1303097, ¶
11; See also, State v. Kitchen, 5th Dist. Ashland No. 02CA056, 2003-Ohio-5017, ¶ 80
(holding, after guilty plea in adult court, that juvenile court did not err in “finding of probable
cause to believe appellant committed both offenses alleged” and therefore finding juvenile
“court’s relinquishment of jurisdiction proper pursuant to R.C. 2152.12”).
{¶53} Thus, it appears even after the grand jury returned an indictment against
EDJ, and even after EDJ pled guilty to the offense, EDJ can argue on appeal that the
juvenile court violated his right to confrontation by not requiring the victim to testify during
the probable cause hearing.
{¶54} It is abundantly clear that a bindover hearing is not an adjudicatory hearing.
This distinction is important. As the Court in Breed v. Jones observed,
A requirement that transfer hearings be held prior to adjudicatory
hearings affects not at all the nature of the latter proceedings. More
significantly, such a requirement need not affect the quality of decision-
making at transfer hearings themselves. In Kent v. United States, 383
Licking County, Case No. 2021 CA 00079 25
U.S., at 562, 86 S.Ct. at 1057, the Court held that hearings under the statute
there involved ‘must measure up to the essentials of due process and fair
treatment.’ However, the Court has never attempted to prescribe criteria
for, or the nature and quantum of evidence that must support, a decision to
transfer a juvenile for trial in adult court. We require only that, whatever the
relevant criteria, and whatever the evidence demanded, a State determine
whether it wants to treat a juvenile within the juvenile-court system before
entering upon a proceeding that may result in an adjudication that he has
violated a criminal law and in a substantial deprivation of liberty, rather than
subject him to the expense, delay, strain, and embarrassment of two such
proceedings.
421 U.S. 519, 538, 95 S.Ct. 1779, 44 L.Ed.2d 346(1975)(emphasis added). In the
corresponding footnote, the court made the following observation,
We note that nothing decided today forecloses States from requiring,
as a prerequisite to the transfer of a juvenile, substantial evidence that he
committed the offense charged, so long as the showing required is not
made in an adjudicatory proceeding. See Collins v. Loisel, 262 U.S. 426,
429, 43 S.Ct. 618, 625, 67 L.Ed. 1062 (1923); Serfass v. United States, 420
U.S. 377, 391—392, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1972). The instant
case is not one in which the judicial determination was simply a finding of,
e.g., probable cause. Rather, it was an adjudication that respondent had
violated a criminal statute.
Id. at n. 18 (emphasis added).
Licking County, Case No. 2021 CA 00079 26
{¶55} The requirements for a finding of probable cause to transfer a juvenile’s
case do not demand the same strictness as proof of the juvenile’s guilt. Courts have
declined to extend the right to confront witnesses to other pre- and post-trial proceedings
that do not concern the adjudication of a defendant’s guilt or innocence. See, United
States v. Campbell, 743 F.3d 802, 808 (11th Cir. 2014) (citing cases); United States v.
Harris, 458 F.2d 670, 677–78 (5th Cir.), cert. denied, 409 U.S. 888, 93 S.Ct. 195, 34
L.Ed.2d 145 (1972) (Consequently, the sixth amendment does not provide a confrontation
right at a preliminary hearing).
{¶56} The Ohio Rules of Evidence do not apply in a juvenile mandatory bindover
proceeding. In the Matter of B.W., 7th Dist. Mahoning No. 17 MA 0071, 2017-Ohio-9220,
¶ 47. In fact, courts that have addressed this or similar questions, have all determined
that there is no constitutionally prescribed confrontation right at these types of hearings.
State v. Fuell, 12th Dist. Clermont No. CA2020-02-008, 2021-Ohio-1627, 172 N.E.3d
1065; State v. Garner, 6th Dist. Lucas No. L-18-1269, 2020-Ohio-4939, ¶ 27 (citing B.W.);
see State v. Burns, 8th Dist. Cuyahoga No. 108468, 2020- Ohio-3966, ¶¶ 74-75
(otherwise inadmissible evidence admissible at mandatory bindover hearing) (quoting
State v. Starling, 2d Dist. Clark No. 2018-CA34, 2019-Ohio-1478); State v. Whisenant,
127 Ohio App.3d 75, 85, 711 N.E.2d 1016 (11th Dist. 1998) (otherwise inadmissible
evidence admissible at mandatory bindover hearing); State v. LaRosa, 11th Dist.
Trumbull No. 2018-T-0097, 2020-Ohio-160, ¶ 38 (citing Whisenant).
{¶57} We cannot escape the fact that had EDJ wanted to confront his accusers
he could have done so at trial and been afforded a thorough, probing cross-examination,
much greater than he would be afforded when the only issue to be decided is whether
Licking County, Case No. 2021 CA 00079 27
there is probable cause to believe he committed the offense. If the trier of fact were to
find EDJ not guilty, then EDJ would not be subject to the jurisdiction of even the juvenile
court. In the event that EDJ were convicted of an offense that would not have permitted
mandatory transfer, or would have permitted only a discretionary transfer, then the case
would be returned to juvenile court to proceed pursuant to R.C. 2151.121(B). See, e.g.,
State v. Hollie, 12th Dist. Butler Nos. CA2021-03-025, CA2021-04-33, 2022-Ohio-872,
¶38; State v. Ferguson, 2nd Dist. Montgomery No. 27032, 2017-Ohio-7930, 98 N.E.3d
987, ¶83.
{¶58} EDJ’s juvenile transfer hearing was non-adjudicatory, as it did not result in
any conclusive factual findings that could be used against him at a subsequent trial. The
purpose instead was to determine EDJ’s age at the time of the alleged incident and the
existence of probable cause. R.C. 2152.12(A)(1)(a)(i).
{¶59} Based upon the foregoing analysis, we hold that the federal and state
Confrontation Clauses were inapplicable at EDJ’s mandatory transfer hearing. State v.
Fuell, 12th Dist. Clermont No. CA2020-02-008, 2021-Ohio-1627, 172 N.E.3d 1065, ¶47.
{¶60} EDJ’s First Assignment of Error is overruled.
II.
{¶61} In his Second Assignment of Error, EDJ contends there was no probable
cause to believe he committed the offense of Aggravated Robbery and that he did so with
a firearm as required for the firearm specification. Specifically, EDJ argues evidence was
introduced to demonstrate that another suspect was the shooter, not EDJ, and that the
victim was shot because of where he was from and not in furtherance of a theft. As a
Licking County, Case No. 2021 CA 00079 28
result, there was no probable cause to believe that EDJ committed aggravated robbery
with a firearm. [Appellant’s brief at 13].
Standard of Appellate Review
{¶62} In a bind-over hearing, “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) [now R.C. 2152.12(A)(1)(a)]. * * * 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.” State v. Iacona,
93 Ohio St.3d 83, 93, 2001-Ohio-1292, 752 N.E.2d 937. 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. Id., citing Kent v. United States, 383 U.S. 541,
86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). Determination of the merits of the competing
prosecution and defense theories, both of which [are] credible, ultimately [is] a matter for
the factfinder at trial. Id. at 96. Accord, State v. Culbertson, 5th Dist. Stark No.
2018CA00183, 2020-Ohio-903, ¶60.
{¶63} "[A] juvenile court's probable-cause determination in a mandatory-bindover
proceeding involves questions of both fact and law, and thus, [the reviewing court] defer[s]
to the trial court's determinations regarding witness credibility, but ... review[s] de novo
the legal conclusion whether the state presented sufficient evidence to demonstrate
probable cause to believe that the juvenile committed the acts charged.” In re A.J.S., 120
Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶51.
Licking County, Case No. 2021 CA 00079 29
Issue for appellate review: Whether the state provided credible evidence of every
element of the offense that supported a finding that probable cause exists to believe that
EDJ committed the offense of aggravated robbery with a firearm.
{¶64} R.C. 2911.01 Aggravated Robbery provides, in relevant part,
(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:
(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;
***
{¶65} R.C. 2929.23 provides,
(A) “Deadly weapon” means any instrument, device, or thing capable
of inflicting death, and designed or specially adapted for use as a weapon,
or possessed, carried, or used as a weapon.
(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.
{¶66} In State ex rel. Portage Lakes Edn. Assn., OEA/NEA v. State Emp.
Relations Bd., 95 Ohio St.3d 533, 2002-Ohio-2839, 769 N.E.2d 853, ¶ 37, the Court
observed,
Licking County, Case No. 2021 CA 00079 30
“Probable cause” is normally referred to in the context of the
commission of a crime and it is defined as “[a] reasonable ground to suspect
that a person has committed or is committing a crime.” Black’s Law
Dictionary (7th Ed.1999) 1219; see, also, Webster’s Third New Internatl.
Dictionary (1971) 1806, defining “probable cause” as “a reasonable ground
for supposing that a criminal charge is well-founded.”
{¶67} As Justice Cook has noted,
[P]robable cause” is a term of art. As early as 1813, the United
States Supreme Court noted that “the term ‘probable cause’ * * * has a fixed
and well known meaning.” Locke v. United States (1813), 11 U.S. (7
Cranch) 339, 348, 3 L.Ed. 364, 367. A finding of probable cause requires
more than a mere suspicion of guilt but less evidence than that required to
sustain a conviction. See Brinegar v. United States (1949), 338 U.S. 160,
175, 69 S.Ct. 1302, 1310–1311, 93 L.Ed. 1879, 1890. See, also,
Melanowski v. Judy (1921), 102 Ohio St. 153, 156, 131 N.E. 360, 361, citing
Ash v. Marlow (1851), 20 Ohio 119, 1851 WL 16, paragraph one of the
syllabus (defining probable cause as “[a] reasonable ground of suspicion,
supported by circumstances sufficiently strong in themselves to warrant a
cautious man in the belief that the person accused is guilty of the offense
with which he is charged”). More recently, we stated that probable cause is
“a term that has been defined as ‘“a reasonable ground for belief of guilt.”’”
State v. Moore (2000), 90 Ohio St.3d 47, 49, 734 N.E.2d 804, 807, quoting
Licking County, Case No. 2021 CA 00079 31
Carroll v. United States (1925), 267 U.S. 132, 161, 45 S.Ct. 280, 288, 69
L.Ed. 543, 555.
State v. Scott, 92 Ohio St.3d 1, 8, 748 N.E.2d 11(2001) (Cook, J., concurring).
{¶68} In the case at bar, the state presented evidence through Detective Harper
that the victim stated he was told to “run his pockets” and then was shot. The victim
identified EDJ as the person who shot him. EDJ’s cellphone was also recovered. PC.T.
at 58. On the cellphone was the application "Snapchat" and it was signed in under EDJ’s
account. A feature of Snapchat is that it monitors and keeps records regarding the
location of the account holder. Detective Harper testified that this location data is
recorded by the longitudinal and latitudinal location. Detective Harper testified that the
records for EDJ’s Snapchat account were obtained and revealed that at 3:04 pm, EDJ
was within the margin of error 120 feet of 2 Pleasant Street. PC.T. at 63. Detectives
spoke to Ms. Tate and she identified EDJ as one of the persons she was with in the car
on February 22, 2021 on the day of the shooting. PC.T. at 58. Surveillance video was
obtained showing two suspects fleeing the area in a blue car. Detective Harper testified
that Ms. Shaffer, one of the 9-1-1 callers, told police that someone she only knew as "E.J."
had shot Alex.
{¶69} Viewing the evidence, we conclude that a reasonable person could have
found a reasonable ground for belief that EDJ had committed the crime of aggravated
robbery with a firearm specification.
{¶70} EDJ did present evidence that a second suspect was named as the shooter
and Alex may have told officers he did not know who had shot him. Further evidence was
introduced that Alex did not tell one of the officers that he was asked to “run his pockets”
Licking County, Case No. 2021 CA 00079 32
prior to being shot. Nevertheless, the state met its burden to establish probable cause
by presenting evidence raising more than a mere suspicion that EDJ had committed the
crime of aggravated robbery with a firearm specification. “Pursuant to Iacona, the
resolution of the conflicting theories of the evidence, both of which were credible, is a
matter for the trier of fact at a trial on the merits of the case, not a matter for exercise of
judicial discretion at a bind-over hearing in the juvenile court.” In re A.J.S., 120 Ohio St.3d
185, 2008-Ohio-5307, 897 N.E.2d 629, ¶64.
{¶71} EDJ’s Second Assignment of Error is overruled.
{¶72} The judgment of the Licking County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, John, J., concur