[Cite as In re N.H., 2025-Ohio-167.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
IN RE N.H. : : No. 113883 A Minor Child : : [Appeal by the State of Ohio] :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: January 23, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL-23-111222
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Gregory J. Ochocki, Assistant Prosecuting Attorney, for appellant.
Edward F. Borkowski, Jr., for appellee.
ANITA LASTER MAYS, J.:
Plaintiff-appellant State of Ohio appeals the Cuyahoga County
Juvenile Court’s (the “juvenile court”) finding that N.H. is not subject to mandatory
bindover. Based on our review of the record, we reverse the decision of the juvenile
court and remand for further proceedings consistent with this opinion. Factual and Procedural History
On September 29, 2023, the State filed a complaint in juvenile court
alleging that on August 31, 2023, N.H. committed six counts, including aggravated
robbery, robbery, and kidnapping (“DL 23-111222”). The State filed both a motion
seeking discretionary bindover to relinquish jurisdiction to the general division and
a notice of mandatory bindover.
On October 18, 2023, the State filed a second complaint against N.H.
alleging that he had participated in a similar set of offenses on August 17, 2023 (“DL
23-111891”). The State again filed for both discretionary and mandatory bindover.
The trial court conducted a preliminary hearing on December 11,
2023, consolidating both cases. The trial court found probable cause in both cases
that N.H. had committed the offenses, including one- and three-year firearm
specifications, denied the State’s request for mandatory bindover on each case, and
scheduled the cases for an amenability hearing. On December 20, 2023, the juvenile
court conducted another hearing. At that time, the court determined that it had
erred when it failed to grant the State’s motion for mandatory bindover on DL 23-
111891. However, although the facts of the two cases are almost identical, the
juvenile court maintained that it retained jurisdiction over N.H. in DL 23-111222
because of the complicity statute.
The State filed a motion on April 1, 2024, renewing its request for
mandatory bindover. The juvenile court denied the motion. The State subsequently filed leave to appeal the decision that this court granted. The State’s sole assignment
of error is as follows:
Assignment of Error
The trial court erred as a matter of law when it retained jurisdiction over a juvenile after finding probable cause to believe they committed aggravated robbery, probable cause to support both one- and three- year firearm specifications, and probable cause to believe the juvenile was sixteen years old at the time of the offense(s).
Law and Analysis
Standard of Review
This court reviews a juvenile court’s decision regarding a mandatory
bindover proceeding as a mixed question of law and fact. In re A.J.S., 2008-Ohio-
5307, ¶ 51. As such, we give deference to the trial court’s determinations regarding
the credibility of the witnesses but review de novo the legal conclusion of whether
the State presented sufficient evidence to demonstrate probable cause to believe that
the juvenile committed the acts charged. Id.
Where a juvenile court determines that a child, who is sixteen or
seventeen years of age at the time of the act, has committed a category-two offense,
e.g., aggravated robbery in violation of R.C. 2911.01, the court is required to bindover
the child to adult court if
(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.
(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.
R.C. 2152.1o(A)(2)(a) and (b); R.C. 2152.12(A)(1)(b)(i) and (ii).
“Mandatory transfer . . . removes discretion from judges and requires
the transfer of a juvenile to adult court in certain situations.” State v. Nicholas,
2022-Ohio-4276, ¶ 3.
The State establishes probable cause in a bindover proceeding by
presenting credible evidence as to each element of the offense. State v. Iacona, 93
Ohio St.3d 83, 93 (2001). This requires production of “evidence that raises more
than a mere suspicion of guilt, but need not provide evidence proving guilt beyond
a reasonable doubt.” Id. The State is not required to disprove alternate theories of
the case or to present all of its evidence at the probable cause hearing. In re E.S.,
2023-Ohio-4273, ¶ 23, citing In re A.J.S., 2008-Ohio-5307, ¶ 61, citing Iacona at 96
and State v. Martin, 2022-Ohio-4175, ¶ 30. Additionally, while the juvenile court’s
assessment of the credibility of the State’s evidence is entitled to deference in this
court, we are mindful that the juvenile court must not exceed the limited scope of a
bindover hearing or usurp the role of the ultimate trier of fact. Id. at ¶ 24, quoting
Martin at ¶ 23. The juvenile court is limited to “‘determining whether the state
presented sufficient credible evidence of probable cause.’” Id. at ¶ 24, quoting
Martin at ¶ 24.
In the instant case, the juvenile court found that there was probable
cause that N.H. was sixteen years old and committed acts that would be a crime if committed by an adult, including aggravated robbery, two counts of robbery,
kidnapping, each with a one- and three-year firearm specifications. Dec. 11, 2023,
and Dec. 20, 2023 Journal Entries.
The sole issue in this case is whether the State met its burden under
the mandatory bindover statutes by establishing probable cause that N.H. had a
firearm on or about his person or under his control during the commission of these
offenses, and whether he displayed, brandished, indicated possession of, or used the
firearm to facilitate the offenses. It is well settled that 2152.10(A)(2)(b) the
mandatory bindover provisions do not apply “unless the child, himself or herself,
had a firearm on or about the child’s person or under the child’s control while
committing the act charged and the child displayed the firearm, indicated
possession of the firearm, or used the firearm to facilitate the commission of the act
charged.” State v. Hanning, 89 Ohio St.3d 86, 94 (2000) referencing former R.C.
2151.26(B)(4)(b).
During the probable cause hearing, video evidence was presented
showing N.H. wearing a gray hoodie and wielding a tan firearm. N.H. was identified
by a family member who was shown still photos taken from the video surveillance
cameras. The video also showed N.H. pressing the weapon against the victim’s body
several times. Both detectives identified the tan weapon as a firearm in the video,
though they both acknowledged that realistic replicas exist.
Furthermore, although there were two accomplices, one of whom also
wielded a firearm, the State did not pursue a complicity theory in this case. The State argued throughout that N.H. was wielding a firearm.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as In re N.H., 2025-Ohio-167.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
IN RE N.H. : : No. 113883 A Minor Child : : [Appeal by the State of Ohio] :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: January 23, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL-23-111222
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Gregory J. Ochocki, Assistant Prosecuting Attorney, for appellant.
Edward F. Borkowski, Jr., for appellee.
ANITA LASTER MAYS, J.:
Plaintiff-appellant State of Ohio appeals the Cuyahoga County
Juvenile Court’s (the “juvenile court”) finding that N.H. is not subject to mandatory
bindover. Based on our review of the record, we reverse the decision of the juvenile
court and remand for further proceedings consistent with this opinion. Factual and Procedural History
On September 29, 2023, the State filed a complaint in juvenile court
alleging that on August 31, 2023, N.H. committed six counts, including aggravated
robbery, robbery, and kidnapping (“DL 23-111222”). The State filed both a motion
seeking discretionary bindover to relinquish jurisdiction to the general division and
a notice of mandatory bindover.
On October 18, 2023, the State filed a second complaint against N.H.
alleging that he had participated in a similar set of offenses on August 17, 2023 (“DL
23-111891”). The State again filed for both discretionary and mandatory bindover.
The trial court conducted a preliminary hearing on December 11,
2023, consolidating both cases. The trial court found probable cause in both cases
that N.H. had committed the offenses, including one- and three-year firearm
specifications, denied the State’s request for mandatory bindover on each case, and
scheduled the cases for an amenability hearing. On December 20, 2023, the juvenile
court conducted another hearing. At that time, the court determined that it had
erred when it failed to grant the State’s motion for mandatory bindover on DL 23-
111891. However, although the facts of the two cases are almost identical, the
juvenile court maintained that it retained jurisdiction over N.H. in DL 23-111222
because of the complicity statute.
The State filed a motion on April 1, 2024, renewing its request for
mandatory bindover. The juvenile court denied the motion. The State subsequently filed leave to appeal the decision that this court granted. The State’s sole assignment
of error is as follows:
Assignment of Error
The trial court erred as a matter of law when it retained jurisdiction over a juvenile after finding probable cause to believe they committed aggravated robbery, probable cause to support both one- and three- year firearm specifications, and probable cause to believe the juvenile was sixteen years old at the time of the offense(s).
Law and Analysis
Standard of Review
This court reviews a juvenile court’s decision regarding a mandatory
bindover proceeding as a mixed question of law and fact. In re A.J.S., 2008-Ohio-
5307, ¶ 51. As such, we give deference to the trial court’s determinations regarding
the credibility of the witnesses but review de novo the legal conclusion of whether
the State presented sufficient evidence to demonstrate probable cause to believe that
the juvenile committed the acts charged. Id.
Where a juvenile court determines that a child, who is sixteen or
seventeen years of age at the time of the act, has committed a category-two offense,
e.g., aggravated robbery in violation of R.C. 2911.01, the court is required to bindover
the child to adult court if
(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.
(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.
R.C. 2152.1o(A)(2)(a) and (b); R.C. 2152.12(A)(1)(b)(i) and (ii).
“Mandatory transfer . . . removes discretion from judges and requires
the transfer of a juvenile to adult court in certain situations.” State v. Nicholas,
2022-Ohio-4276, ¶ 3.
The State establishes probable cause in a bindover proceeding by
presenting credible evidence as to each element of the offense. State v. Iacona, 93
Ohio St.3d 83, 93 (2001). This requires production of “evidence that raises more
than a mere suspicion of guilt, but need not provide evidence proving guilt beyond
a reasonable doubt.” Id. The State is not required to disprove alternate theories of
the case or to present all of its evidence at the probable cause hearing. In re E.S.,
2023-Ohio-4273, ¶ 23, citing In re A.J.S., 2008-Ohio-5307, ¶ 61, citing Iacona at 96
and State v. Martin, 2022-Ohio-4175, ¶ 30. Additionally, while the juvenile court’s
assessment of the credibility of the State’s evidence is entitled to deference in this
court, we are mindful that the juvenile court must not exceed the limited scope of a
bindover hearing or usurp the role of the ultimate trier of fact. Id. at ¶ 24, quoting
Martin at ¶ 23. The juvenile court is limited to “‘determining whether the state
presented sufficient credible evidence of probable cause.’” Id. at ¶ 24, quoting
Martin at ¶ 24.
In the instant case, the juvenile court found that there was probable
cause that N.H. was sixteen years old and committed acts that would be a crime if committed by an adult, including aggravated robbery, two counts of robbery,
kidnapping, each with a one- and three-year firearm specifications. Dec. 11, 2023,
and Dec. 20, 2023 Journal Entries.
The sole issue in this case is whether the State met its burden under
the mandatory bindover statutes by establishing probable cause that N.H. had a
firearm on or about his person or under his control during the commission of these
offenses, and whether he displayed, brandished, indicated possession of, or used the
firearm to facilitate the offenses. It is well settled that 2152.10(A)(2)(b) the
mandatory bindover provisions do not apply “unless the child, himself or herself,
had a firearm on or about the child’s person or under the child’s control while
committing the act charged and the child displayed the firearm, indicated
possession of the firearm, or used the firearm to facilitate the commission of the act
charged.” State v. Hanning, 89 Ohio St.3d 86, 94 (2000) referencing former R.C.
2151.26(B)(4)(b).
During the probable cause hearing, video evidence was presented
showing N.H. wearing a gray hoodie and wielding a tan firearm. N.H. was identified
by a family member who was shown still photos taken from the video surveillance
cameras. The video also showed N.H. pressing the weapon against the victim’s body
several times. Both detectives identified the tan weapon as a firearm in the video,
though they both acknowledged that realistic replicas exist.
Furthermore, although there were two accomplices, one of whom also
wielded a firearm, the State did not pursue a complicity theory in this case. The State argued throughout that N.H. was wielding a firearm. The tan firearm was not
recovered. Police did recover the black weapon that was tested and found to be an
operable firearm. Based on the foregoing, the State presented sufficient evidence to
meet the low bar of probable cause that N.H. committed an aggravated robbery
while in possession of a firearm and used it to facilitate the offense.
Appellee argues that the juvenile court simply gave credence to
evidence that the tan firearm was not an actual gun, but a toy. The detectives made
contact with N.H.’s mother, T.C., shortly after the incident. At that time, T.C.
suggested the weapons were probably toys, because her children play with toys. Two
accomplices were identified; both of them were T.C.’s other children. Several weeks
after the police had concluded the investigation, T.C. contacted the detective and
sent him a picture of a tan CO2 gun suggesting it was the weapon used. The detective
did not pursue this evidence due to the time that elapsed between the offense, and
he had no way to tie that weapon to the specific offense.
Regardless, the juvenile court does not act as the ultimate trier of fact
at a probable cause hearing, it merely determines whether the State has presented
sufficient evidence to establish probable cause that the child committed the alleged
offenses. In re E.S., 2023-Ohio-4273, ¶ 24. There was sufficient evidence in the
record to establish that N.H. had a firearm on his person, brandished it, and used it
in the commission of the offense. Accordingly, the juvenile court went beyond the
scope of its review when it found the State failed to establish probable cause for
mandatory bindover. Judgment reversed. We remand to the juvenile court for further
proceeding consistent with this opinion.
It is ordered that appellant recover from appellee 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.
ANITA LASTER MAYS, JUDGE
EMANUELLA D. GROVES, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR