In re D.R.

2021 Ohio 3350

Opinion

[Cite as In re D.R., 2021-Ohio-3350.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE D.R. : : No. 110212 A Minor Child :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 23, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL-20-105112

Appearances:

Cullen Sweeney, Cuyahoga County Public Defender, and Aaron T. Baker, Assistant Public Defender, for appellee.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Gregory Ochocki, Assistant Prosecuting Attorney, for appellant.

LISA B. FORBES, J.:

The state of Ohio appeals the juvenile court’s judgment denying the

state’s motion to transfer jurisdiction of this case from the juvenile court to the

general division of the Cuyahoga County Common Pleas Court. The state argues

that the juvenile court erred in denying its motion to transfer the case because the

state provided credible evidence to support a finding of probable cause to believe

that D.R. committed aggravated robbery as alleged in the complaint. After a thorough review of the record and law, this court affirms the juvenile court’s

judgment.

I. Facts and Procedural History

The instant matter arose from an incident that occurred on May 27,

2020. At the time, D.R. was 16 years old. The victim, Nathaniel Turner, was

interested in purchasing a vehicle on the website OfferUp. Turner contacted the

seller and arranged a meeting to complete the transaction. According to Turner, as

he and the seller were driving to the Bureau of Motor Vehicles (“BMV”) to have the

vehicle’s title transferred to Turner’s name, the seller pulled out a firearm. A

struggle ensued, and a shot was fired during the struggle for control of the weapon.

Turner gained control of the firearm and ran away. Turner subsequently identified

D.R. in a photo array as the vehicle’s seller.

On June 3, 2020, in Cuyahoga J.C. No. DL-20-105112, D.R. was

charged in a ten-count complaint with the following offenses: (1) aggravated

robbery, in violation of R.C. 2911.01(A)(1), (2) felonious assault, in violation of R.C.

2903.11(A)(2), (3) kidnapping, in violation of R.C. 2905.01(A)(2), (4) robbery, in

violation of R.C. 2911.01(A)(1), (5) robbery, in violation of R.C. 2911.01(A)(2), (6)

robbery, in violation of R.C. 2911.01(A)(3), (7) receiving stolen property, in violation

of R.C. 2913.51(A), (8) improperly handling firearms in a motor vehicle, in violation

of R.C. 2923.16(B), (9) carrying a concealed weapon, in violation of R.C.

2923.12(A)(2), and (10) criminal damaging or endangering, in violation of R.C. 2909.06(A)(1). Counts 1-6 contained one- and three-year firearm specifications.

Count 7 contained a one-year firearm specification.

On June 8, 2020, the state filed (1) a notice of mandatory bindover and

request for a probable cause hearing, and (2) a motion for an order relinquishing

jurisdiction of the case for the purpose of criminal prosecution pursuant to R.C.

2152.10(B) and Juv.R. 30. In its motion to transfer jurisdiction of the case from the

juvenile court to the general division for criminal prosecution, the state argued that

the case should be bound over to the general division because D.R. was charged in

the complaint with aggravated robbery and kidnapping, category two offenses, and

the complaint alleged that D.R. committed these offenses while he was in possession

of a firearm. The state subsequently acknowledged that only the aggravated robbery

offense in Count 1, and not the kidnapping offense in Count 3, subjected D.R. to

mandatory bindover.

II. Hearing Testimony

On November 13, 2020, the juvenile court held a probable cause

hearing on the state’s motion to transfer. The following individuals testified on

behalf of the state at the probable cause hearing: (1) Nathaniel Turner, (2) Eugene

Bell, (3) Officer Gino Trinh, (4) Detective Zara Hudson, and (5) Detective Timothy

Cramer.

Turner testified as follows about what happened in May 2020 when he

was “looking to buy a car”: I’ll just tell you the story from the start. So from OfferUp I went to go — I was looking to buy a car from OfferUp and I found the car and I contacted the dude and we chose to meet up at a spot to get the title for the car we was going to the place to get the title from the DMV.[1] And we was going there, but we didn’t go there. We went somewhere else.

Turner and the seller met “somewhere,” and the seller brought the car

Turner was interested in purchasing. Turner got into the seller’s car, with the

understanding that they were going to the BMV. The seller began driving. Turner

knew the way to the BMV and realized that the seller was going the wrong way.

When Turner asked the seller where he was going, the seller indicated that he was

going to a different BMV. Turner testified,

So we rode like in another direction and the dude pulled a gun out and once I seen the gun we tussled over the gun in the car. Once we tussled over the gun in the car, the car like jumped a hill and came to a stop and we were still tussling over the gun. The door opened, I guess he opened his door before he pulled out the gun and we started tussling and we ended up tussling like outside the car for the gun in a field. And we was tussling with it and the gun went off as we was tussling and I was able to get the gun and run away and I got away.

And once I got away, I was like — and I had the gun I was like — yeah, I was like I got the gun and I thought it was over with, but I guess he was like — I don’t know. He was trying to get it back or something. I don’t know.

Turner continued,

So when I was able to get the gun I thought it was like over with, he was going to run away or something, but he got back in the car and, you know, chased me with the car, tried to hit me, hit the building. I run away into somebody’s backyard and try to get away and hop the gate and I ran into some guy back there and pretty much I told him like what had happened and he had called the cops and that was it.

1 Turner refers to the Bureau of Motor Vehicles as the “DMV” throughout his testimony. The state showed Turner a screenshot of a 1999 Honda Accord LX that

was for sale on OfferUp and asked Turner if he recognized the vehicle in the picture.

Turner replied, “[t]hat was the vehicle, but it’s messed up.” Asked what vehicle,

Turner answered “[t]he vehicle I was going to purchase off OfferUp.” Turner further

testified “that’s the car,” but did not recall it being “messed up like that.” The state

next asked Turner to describe the firearm that he saw that day. Turner described it

as “gray or steel.” The state showed Turner a picture of the gun he gave to the police

on May 27, 2020, and asked him if it looked “like the firearm from that day.” Turner

replied, “I think so. Yeah, that was it.”

Regarding the individual he encountered when he was running away

from the seller, Turner explained that he met an older guy cutting the grass in his

backyard. Turner testified, “I just told him what had happened and he was like okay,

I’m about to call the police now.” Turner waited in the individual’s yard until the

police arrived. When the police arrived, Turner told them what happened and

turned over the firearm.

The police returned to Turner’s house on two occasions following the

incident. The first time the police came back, they asked Turner to identify the seller

from a photo array. The second time, they collected a DNA sample.

Turner identified state’s exhibit No. 5A as the photo array police

presented to him. Police asked Turner to circle the vehicle’s seller from the photo

array and indicate how certain Turner was that it was, in fact, the individual that

Turner was with on May 27, 2020. Asked whether he saw the vehicle’s seller in the courtroom during the

probable cause hearing, Turner testified, “[h]e’s over there wearing the jacket, I

mean, the sweater, the blue sweater.” The state asked, “Your Honor, may the record

reflect that the alleged victim has identified the alleged delinquent?” The juvenile

court replied that Turner’s “testimony will stand.”

On cross-examination, Turner testified that he spoke with the seller

for a couple of seconds before willingly getting into the car for the purpose of driving

to the BMV to transfer title of the car to Turner. Turner never drove the car. Turner

testified that he and the seller had agreed on a price for which Turner would

purchase the vehicle. However, Turner could not recall the agreed-upon price.

Turner testified he did not tender any money to the seller prior to May 27, 2020, and

he did not bring any money with him to the meeting.

Eugene Bell, the individual that Turner encountered as he was running

away from the seller, testified that he was in his backyard when he observed an

individual jump the fence. The individual ran towards Bell and was “hollering that

he needed help, somebody was trying to kill him.”

Turner asked to go inside Bell’s house to use the phone “because

somebody is about to kill [him].” Bell did not let Turner go inside the house, but

they went inside Bell’s garage. Regarding Turner’s demeanor, Bell explained,

[Turner] was shaking and scared. He said, I ain’t going to hurt you or nothing. I just need somebody to call the police or get me some help. He’s trying to kill me. So he was shaking and stuttering and sweating. And I said, hey, man, you got to calm down, you know. And he said, yeah, they’re after me. I said, well, go in the garage[.] Upon the juvenile court’s inquiry, Bell confirmed that Turner said

“they are trying to kill me.” Bell thought it was a group of people. Bell called the

police and gave his cell phone to Turner who spoke with the dispatcher. A recording

of this conversation was played at the probable cause hearing as state’s exhibit No.

7.

Cleveland Police Officer Gino Trinh testified that police received a call

for an aggravated robbery at East 127th Street and Gay Avenue. Officer Trinh

responded to the scene with his partner. Regarding his observations of Turner,

Officer Trinh testified, “[Turner] was shooken up. He seemed tired to me. He told

us that he was running across yards. He had abrasions on his hands and some gun

powder residue on his jacket.” Turner informed officers he had a firearm on him,

and the officers recovered this weapon. The firearm was “a silver and black Kahr,”

which Officer Trinh described as a “small handgun.”

Officer Trinh confirmed on cross-examination that he observed

powder burn on Turner’s chest, indicating that Turner was in close proximity to gun

fire. The firearm was unregistered.

Cleveland Police Detective Zara Hudson testified that she

administered the photo array “blindly” to Turner, meaning she had no

understanding of the case or individuals involved. When Detective Hudson

presented the photo array to Turner, Turner circled D.R.’s photograph and indicated

that he was 95 percent certain that this was the person he met on May 27, 2020, to

purchase the vehicle. Cleveland Police Detective Timothy Cramer testified that he was

assigned to investigate an alleged aggravated robbery that occurred on May 27,

2020, involving Turner. Detective Cramer learned that the vehicle in question was

a 1999 Honda Accord that was parked at 12809 Gay Avenue following the incident.

Detective Cramer explained that Turner took screenshots of the vehicle from

OfferUp and turned the photographs over to police. Detective Cramer identified

state’s exhibit Nos. 2 and 3 as screenshots of the OfferUp account that Turner had

taken before the account had been deleted.

Based on the information Turner provided to police, Detective Cramer

learned that the name “Shawn” was connected with the OfferUp account from which

the vehicle was listed for sale. Detective Cramer explained, however, that he did not

personally observe or have firsthand knowledge that D.R. or an individual named

“Shawn” was affiliated with the OfferUp account. This information came from the

police report in which Turner stated that the vehicle’s seller identified himself as

“Shawn.”

Detective Cramer testified that he was familiar with the vehicle in

question from an incident that occurred on May 4, 2020. The vehicle was parked at

12809 Gay Avenue, and several shots were fired from another vehicle into the house

and at the vehicle in question. Detective Cramer explained, “I towed this same

vehicle about three weeks prior in connection with a separate incident in which the

vehicle was struck by gunfire. That incident occurred at 12809 Gay [Avenue] and I am familiar that [D.R.] is known to be at that address. [D.R.] was known to have

ownership of that vehicle.”

At the time of the May 4, 2020 shooting, the vehicle was towed and

processed. D.R. was listed in Detective Cramer’s report as the victim. D.R. stated

“that he owned the car, that the car was in his possession.” Detective Cramer had

inquired about the vehicle’s ownership and discovered that D.R. did not legally own

the vehicle. Rather, a female held title to the vehicle. When Detective Cramer spoke

with the titleholder, she informed him that she had recently sold the car to a younger

black male.

When Detective Cramer told D.R. that D.R. did not hold title to the

vehicle, D.R. asserted that the BMV was closed due to the COVID-19 pandemic and,

as a result, he had not been able to have the title switched to his name.

During the course of his investigation into the May 27, 2020 incident,

Detective Cramer made the connection to D.R. based on (1) Turner’s statement to

police that the name “Shawn” was affiliated with the OfferUp account that listed the

vehicle for sale, (2) the OfferUp photographs that Turner provided to police, and (3)

Detective Cramer’s prior involvement with the vehicle in question from the May 4,

2020 shooting incident.

Detective Cramer did not observe any bullet holes or defects in the

vehicle shown in the OfferUp screenshots that Turner provided to police. He

explained, however, that the screenshots did not depict the entire vehicle, and that

they only showed the passenger side. The OfferUp screenshots depicted fresh damage to the passenger side of the vehicle. Detective Cramer explained that the

damage to the vehicle’s passenger side was present when he towed the car earlier in

May.

Detective Cramer confirmed that he was unable to determine when

the screenshots of the vehicle in question were taken or posted to OfferUp. Nor was

he able to ascertain who posted the photographs. Detective Cramer did not know

how, or by what means, the female titleholder sold the vehicle in question. Detective

Cramer attempted to locate the OfferUp account at issue; however, the account had

been deleted. Detective Cramer contacted OfferUp for assistance, but the company

was unable to locate the account from which the vehicle was posted.

After the May 27, 2020 incident, Detective Cramer tried to locate the

vehicle on multiple occasions, but he was unable to do so. Detective Cramer learned

that the vehicle in question was registered to another individual who did not reside

in Cleveland.

In addition to the testimony of Turner, Bell, Officer Trinh, Detective

Hudson, and Detective Cramer, the state presented the following exhibits at the

probable cause hearing: exhibit No. 1: a photo of the firearm Turner provided to

police; exhibit Nos. 2 and 3: OfferUp screenshots of the vehicle that Turner provided

to police; exhibit No. 4: a Cleveland Police Department test-fire report indicating

that the gun Turner provided to police was operable; exhibit Nos. 5, 5A, and 5B: the

photo array that was administered to Turner; and exhibit No. 7: the audio recording

of the phone call between Bell, Turner, and the police dispatcher. On November 25, 2020, the juvenile court denied the state’s motion

to transfer, concluding that “there is insufficient, credible evidence to show probable

cause to believe that [D.R.] committed the acts alleged in the complaint.” On

January 6, 2020, the state filed the instant appeal challenging the juvenile court’s

judgment. The state assigns one error for review:

I. The juvenile court erred when it did not find probable cause to believe that [D.R.] committed the acts alleged in the complaint.

III. Law and Analysis

R.C. 2152.12(A) governs mandatory transfers of juvenile cases to the

general division of the common pleas court. It states in pertinent part as follows:

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 the child was sixteen or seventeen years of age at the time of the act charged and * * *[.]

(ii) Division (A)(2)(b) of 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.

R.C. 2152.12(A)(1)(b)(ii).

Pertaining to the case at hand, aggravated robbery, in violation of R.C.

2911.01, constitutes a category two offense. R.C. 2152.02(BB). The next step in

determining whether a juvenile case is subject to mandatory bindover involves R.C.

2152.10(A)(2)(b), which states that “[t]he 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.”

In the case at hand, the parties stipulated that D.R. was 16 years old

at the time of the incident. The acts charged in Count 1 of the complaint would

constitute the offense of aggravated robbery if committed by an adult. Furthermore,

the act charged in Count 1 contained one- and three-year firearm specifications

pursuant to R.C. 2941.141(A) and 2941.145(A). Therefore, this case falls within the

mandatory bindover provisions set forth in R.C. 2152.10(A)(2)(b) and 2152.12(A)(1).

See In re C.G., 8th Dist. Cuyahoga No. 97950, 2012-Ohio-5286, ¶ 30; Juv.R. 30.

Pursuant to Juv.R. 30(A), “[i]n any proceeding where the court

considers the transfer of a case for criminal prosecution, the court shall hold a

preliminary hearing to determine if there is probable cause to believe that the child

committed the act alleged * * *.” On appeal, the state argues that the juvenile court

erred in not transferring the case because the state provided credible evidence of

every element of the aggravated robbery offense to support a finding of probable

cause to believe D.R. committed the offense. The state is essentially challenging the

juvenile court’s conclusion that “there is insufficient, credible evidence to show

probable cause to believe that [D.R.] committed the acts alleged in the complaint.”

The Ohio Supreme Court has instructed that “the state must present credible evidence of every element of an offense to support a finding of probable cause, but that evidence does not have to be unassailable.” In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 46, citing [State v. Iacona, 93 Ohio St.3d 83, 752 N.E.2d 937 (2001)]. The Supreme Court further explained, the juvenile court’s role in bindover proceeding is that of a “gatekeeper” because it is “charged with evaluating whether sufficient credible evidence exists” to warrant transfer to adult court. Id., citing In re A.J.S., 173 Ohio App.3d 171, 2007-Ohio-3216, 877 N.E.2d 997 (10th Dist.).

(Emphasis added.) State v. Hughley, 8th Dist. Cuyahoga No. 108518, 2020-Ohio-

1277, ¶ 35.

This court defers to the juvenile “court’s credibility determinations by

reviewing for an abuse of discretion, but we conduct a de novo review of the legal

conclusion whether there was probable cause to believe that the juvenile committed

the charged act.” In re C.G. at ¶ 31. See also State v. Martin, 8th Dist. Cuyahoga

No. 108996, 2021-Ohio-1096, ¶ 15 (a witness’s testimony and credibility are “best

assessed by the trial court.”) “The trier of fact is in the best position to make

credibility determinations because it is able to view the demeanor of a witness while

he or she is testifying; this court cannot. The trier of fact is therefore in the best

position to determine if the proffered testimony is credible.” Khatib v. Peters, 2017-

Ohio-95, 77 N.E.3d 461, ¶ 28 (8th Dist.).

After reviewing the record based on the evidence presented at the

probable cause hearing, and in light of the deferential standard of review we must

apply to the juvenile court’s credibility determinations, we conclude that the juvenile

court did not err or abuse its discretion in finding that the state failed to present

sufficient credible evidence to establish probable cause that D.R. committed the

pertinent acts charged in the complaint necessary to support a mandatory bindover.

The record reflects that the juvenile court considered the facts and

circumstances of the May 27, 2020 incident based upon which D.R. was charged, and listened to the testimony at the probable cause hearing. The juvenile court did

not issue its ruling from the bench. Rather, the court took the matter under

advisement following the probable cause hearing. After 12 days, the juvenile court

issued its judgment entry denying the state’s motion to transfer the case.

The record reflects that throughout the probable cause hearing, the

juvenile court questioned whether the vehicle that Detective Cramer had been

involved with on May 4, 2020, during his first interaction with D.R., was the same

vehicle that was listed for sale on OfferUp or the same vehicle that Turner got into

on May 27, 2020. The juvenile court opined that if the same vehicle were involved

in the May 4, 2020 incident, the vehicle “would have had some [bullet] defects in it”

at the time of the May 27, 2020 transaction.

The juvenile court questioned whether, after the May 4, 2020

incident, the vehicle was released to D.R., a juvenile, after it had been towed and

processed. The juvenile court opined that following the May 4, 2020 incident, the

vehicle “was possibly released to [D.R.] in its defective state[.]” The juvenile court

further opined that the vehicle would have been in its defective state at the time of

the May 27, 2020 transaction facilitated by OfferUp.

The juvenile court appeared to question whether the police would

release the vehicle to a juvenile who did not hold title to that vehicle. Detective

Cramer confirmed that he was not present when the vehicle was released.

The juvenile court further appeared to question the credibility of

state’s exhibit Nos. 2 and 3, the OfferUp screenshots of the vehicle taken by Turner that were subsequently provided to police. Detective Cramer testified that he made

the connection between D.R. and the May 27, 2020 transaction based, in part, on

these screenshots.

The juvenile court questioned whether these screenshots were posted

by D.R. or the record titleholder that purportedly sold the vehicle to D.R. The

juvenile court explained, “[b]ecause if [the screenshots depicted] the same fresh

damage that [Detective Cramer] observed from the [May 4, 2020] tow without the

bullet defects, would it be unreasonable for the Court to believe that [the

screenshots] could have been OfferUp pictures from [the titleholder’s] account?”

Detective Cramer confirmed that he could not tell when, or by whom, the screenshot

photos were taken and posted to OfferUp. Detective Cramer also confirmed that he

did not ask the titleholder how, or by what means, she sold the vehicle.

Turner’s testimony during the probable cause hearing was vague,

lacking in detail, and inconsistent. For instance, Turner testified that he met the

seller “somewhere,” without providing a specific place or location that they met, and

he got into the seller’s car. Additionally, regarding the vehicle pictured in state’s

exhibit Nos. 2 and 3 — screenshots taken by Turner himself and turned over to the

police — the juvenile court asked Turner if the vehicle depicted in the exhibits was

the vehicle he intended to purchase. Initially, Turner expressed doubt, testifying, “I

mean, I don’t think [the vehicle he intended to purchase] was messed up like [the

vehicle pictured in state’s exhibit Nos. 2 and 3]. I don’t recall [the vehicle] was

messed up like that.” Subsequently, the juvenile court asked Turner if he could identify the vehicle in state’s exhibit Nos. 2 and 3 as the vehicle he saw on OfferUp

and that he intended to purchase on May 27, 2020. At this point, Turner definitively

testified, “[t]hat’s the car. That’s the car.”

As noted above, Turner could not recall at the hearing the agreed-

upon purchase price for the vehicle. Turner had not tendered any payment to the

seller prior to the May 27, 2020 meeting, nor did he tender any payment to the seller

during the meeting. In fact, Turner testified that he did not bring any money with

him when he met the seller. Nonetheless, he claimed he and the seller were driving

to the BMV to transfer title.

Turner did not testify that D.R. knowingly obtained or exerted control

over property or services — in other words, tried to steal anything from Turner —

when D.R. pulled out a gun inside the vehicle. Rather, Turner testified that “the

dude pulled a gun out and once I seen the gun we tussled over the gun in the car.”

Commission of a theft offense is a required element of aggravated robbery in

violation of R.C. 2911.01(A)(1). “Theft” is defined in R.C. 2913.02(A) as follows:

No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:

(1) Without the consent of the owner or person authorized to give consent;

(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;

(3) By deception;

(4) By threat; (5) By intimidation.

The record reflects that the juvenile court addressed Turner’s

demeanor on multiple occasions during the probable cause hearing. The juvenile

court instructed Turner to sit up in his chair and speak into the microphone. The

juvenile court emphasized that the proceedings and Turner’s testimony “may affect

everyone’s life in this [courtroom.]” When the prosecutor asked Turner about the

nature of the May 27, 2020 incident, Turner replied, “[C]an I get a different

question?” The juvenile court called a recess almost immediately when Turner

began testifying and explained that Turner needed to talk to his attorney. A

reasonable inference can be drawn that Turner was not taking the matter seriously.

The juvenile court did not expound upon its conclusion that “the state

failed to present sufficient credible evidence to demonstrate probable cause.”

Nonetheless, the juvenile court was in a much better position to assess the credibility

of the testimony and evidence presented at the probable cause hearing, and this

court must defer to the juvenile court’s credibility determination. See In re C.G., 8th

Dist. Cuyahoga No. 97950, 2012-Ohio-5286, at ¶ 39.

Turner was the state’s only eyewitness. There is no other evidence to

establish every element of the aggravated robbery offense necessary to support a

finding of probable cause. In re C.G. at ¶ 40. If Turner’s testimony at the probable

cause hearing was not credible, it is not an abuse of discretion to find that the state

failed to establish probable cause. Additionally, the record is devoid of any evidence that D.R. deprived or attempted to deprive Turner of property or services, a

necessary element of aggravated robbery.

Finally, Turner’s testimony was the only evidence connecting D.R. to

the firearm Turner turned over to police. The state did not present any forensic or

physical evidence linking D.R. to the firearm. If Turner’s testimony connecting D.R.

to the firearm was not credible, the state is unable to sufficiently connect D.R. to the

firearm that subjected him to mandatory bindover under R.C. 2152.10(A)(2)(b).

As noted above, it is apparent that during the probable cause hearing,

the juvenile court questioned the credibility of both Turner’s eyewitness testimony

and Detective Cramer’s testimony connecting D.R. to the vehicle in question. In

denying the state’s motion to transfer the case, it is evident that the juvenile court

ultimately concluded that the evidence presented by the state was not credible. We

defer to the juvenile court’s credibility determination in this regard.

The instant case can be distinguished from this court’s recent opinion

in In re J.R., 8th Dist. Cuyahoga No. 110241, 2021-Ohio-2272, which reversed a

juvenile court’s decision denying the state’s motion for mandatory bindover. In In

re J.R., the juvenile-appellee was alleged to have participated in the armed robbery

of a Dollar Tree store. There were two eyewitnesses to the robbery. One of the

eyewitnesses, the store manager, was unable to identify J.R. during a cold stand at

the time of the robbery or in court as one of the participants. The other eyewitness,

an alleged victim, positively identified J.R. during a cold stand approximately 15 minutes after the robbery; however, this alleged victim did not testify during the

probable cause hearing.

In determining that probable cause was lacking, the juvenile court did not indicate that the state’s identification evidence was not credible. Rather, as set forth in its journal entry, the juvenile court found that “insufficient evidence [was] presented to demonstrate that there was probable cause to believe” that J.R. committed the offenses at issue because “[n]either the police nor the [store manager] witnessed the alleged robbery” and “the [alleged victim] who remained and [was] later found in the store by police, did not testify at the hearing.”

(Emphasis added.) Id. at ¶ 36.

On appeal, this court held that the juvenile court erred in failing to

consider the alleged victim’s statements to police, including the alleged victim’s

identification of J.R. from the cold stand, in determining whether probable cause

existed to bind J.R. over to adult court. This court explained that the evidence

presented at a nonadjudicatory probable cause hearing “need not meet the same

standards required for admissibility at trial. Confrontation clause standards for the

admissibility of evidence and the Ohio Rules of Evidence do not apply to probable

cause hearings.” Id. at ¶ 37.

Furthermore, the In re J.R. Court concluded that based on the

evidence presented by the state at the probable cause hearing, probable cause

existed to believe that J.R. participated in the robbery. Id. at ¶ 43. The police

recovered clothing that J.R. removed as he was fleeing from police. This clothing

“matched the description that had been given to police of the clothing that had been

worn by one of the perpetrators.” Id. at ¶ 42. When officers retraced J.R.’s steps during the police chase, they found a handgun in an area where J.R. had fallen

during the chase. Id. When officers eventually apprehended J.R., he asserted that

he was a juvenile and that another individual had given him the handgun. Id. at ¶ 11.

This court explained that “although J.R.’s statements to police did not amount to a

confession to aggravated robbery, those statements, along with the other evidence

presented, support a finding of probable cause.” Id. at ¶ 42.

After reviewing the record, we find that In re J.R., 8th Dist. Cuyahoga

No. 110241, 2021-Ohio-2272, is factually distinguishable from the present appeal.

In In re J.R., the juvenile court “apparently believed” that it could not consider the

statements of the eyewitness that identified J.R. at the time of the robbery because

the witness did not testify at the probable cause hearing. Id. at ¶ 35. In the case at

hand, the juvenile court considered Turner’s testimony and Turner’s identification

of D.R. from a photo array, but ultimately concluded that the evidence did not

constitute sufficient credible evidence showing probable cause to believe that D.R.

committed the acts alleged in the complaint.

In In re J.R., the court recognized that the “primary issue at the

probable cause hearing was identity, i.e., whether J.R. was one of the perpetrators

who had participated in the armed robbery[.]” Id. at ¶ 35. Here, the primary issue

is not an identity question. Rather, the question is what transpired inside the car,

whether a crime was committed inside the car, and if so, what crime was committed.

As noted previously, Turner was the state’s only eyewitness who

testified about what transpired inside the car and connected D.R. to the gun Turner provided to the police. At the probable cause hearing, the state was not required to

prove the truth of the allegations against D.R. The state “merely had to present

credible evidence showing probable cause supporting each element” of the

aggravated robbery offense subjecting D.R. to mandatory bindover. (Emphasis

added.) In re J.R. at ¶ 39.

If Turner’s testimony was not credible, then the state cannot establish

every element of the aggravated robbery offense, as well as the firearm specification,

necessary to support a finding of probable cause and subjecting D.R. to mandatory

bindover under R.C. 2152.10(A)(2)(b). Although Turner alleged that D.R. drew a

gun inside the vehicle, there was no physical or forensic evidence presented that

connected D.R. to the firearm, the gun was not registered to D.R., and his

fingerprints were not recovered on the gun. As discussed above, the state did not

present evidence on every element of the aggravated robbery offense.

After reviewing the record, we find no basis upon which to conclude

that the juvenile court erred or abused its discretion in denying the state’s motion

for mandatory bindover. Unlike In re J.R., 8th Dist. Cuyahoga No. 110241, 2021-

Ohio-2272, this is not a case where the juvenile court failed to consider evidence

presented by the state. Rather, the juvenile court considered the evidence presented

at the probable cause hearing, as it was required to do, and concluded that “there is

insufficient, credible evidence to show probable cause to believe the child committed

the acts alleged in the complaint.” The state’s sole assignment of error is overruled.

Judgment affirmed. It is ordered that appellee recover from appellant 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

common pleas court, juvenile division, 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.

LISA B. FORBES, JUDGE

EILEEN A. GALLAGHER, P.J., and MICHELLE J. SHEEHAN, J., CONCUR