State v. Foster

2023 Ohio 4308

Opinion

[Cite as State v. Foster, 2023-Ohio-4308.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112367 v. :

KESHAWN FOSTER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 30, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-656392-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and John Hirschauer, Assistant Prosecuting Attorney, for appellee.

Edward F. Borkowski, Jr., for appellant.

MARY EILEEN KILBANE, P.J.:

Defendant-appellant Keshawn Foster (“Foster”) appeals from his

convictions for attempted murder and numerous other offenses, claiming the

juvenile court abused its discretion in transferring Foster’s case to the general

division. For the reasons that follow, we affirm. Factual and Procedural History

On November 20, 2019, Foster was named in a 57-count complaint in

the Cuyahoga County Common Pleas Court, Juvenile Division, related to numerous

offenses allegedly committed in 2019. At the time, Foster was 14 years old.

On January 23, 2020, Foster waived his right to a probable cause

hearing in juvenile court.

On July 29, 2020, the juvenile court held an amenability hearing.

The state called numerous witnesses at the amenability hearing who

testified as to details of the alleged offenses, Foster’s ongoing involvement with the

juvenile justice system, his psychological evaluation, and his personal history.

The allegations in the complaint against Foster were that in separate

incidents, Foster committed a string of violent offenses. One incident involved

Foster stealing a car from someone at a gas station; the car was subsequently used

in a drive-by shooting a week later, where Foster and another individual shot at

another juvenile. Shortly thereafter, Foster and another individual shot at several

people in a vehicle, causing two victims to crash their vehicle and sustain serious

injuries as a result of gunshot wounds. Yet another incident took place

approximately one month later, when Foster shot at individuals in the Garden Valley

apartment complex in Cleveland, Ohio. Rounds from this shooting were recovered

from two apartments in the complex. Later that month, Foster carjacked another

victim at gunpoint. Several weeks later, Foster shot another individual in the

stomach, causing the victim to sustain serious and lasting injuries. Shortly thereafter, Foster and another individual carjacked another individual at gunpoint.

When detectives from the Cleveland Division of Police’s gang unit attempted to

arrest Foster in the stolen vehicle from the most recent carjacking, Foster attempted

to flee from police. Following a high-speed chase, during which Foster rammed the

stolen vehicle into another car and almost hit an officer, Foster’s vehicle was hit

while driving through a red light. He was subsequently arrested and one of the

firearms used in many of these incidents was recovered. The majority of the

aforementioned conduct was captured on surveillance footage.

In addition to testimony from a relative of one of the victims and a

security guard at the Garden Valley apartment complex, Foster’s probation officer

testified at the amenability hearing. Kearran Capers (“Capers”) testified that she

worked as a probation officer at juvenile court. Capers testified as to Foster’s

previous involvement with juvenile court. Specifically, Capers testified that Foster

was on probation for a 2018 theft case. She testified that while Foster was on

probation, he was charged with aggravated robbery and robbery; those charges were

later dismissed. Capers also testified that Foster violated his probation when he

“went AWOL” (absent without leave) and was unsuccessfully terminated from home

detention.

Dr. Terry B. Pinsoneault (“Dr. Pinsoneault”), a psychologist at the

juvenile court who conducts psychological evaluations, testified as to his evaluation

of Foster and subsequent report. Dr. Pinsoneault testified as to Foster’s familial and

social history, his education, and his intellectual capabilities. Dr. Pinsoneault testified that Foster’s father had been incarcerated for most of Foster’s life and was

killed shortly after being released from prison and Foster had a difficult relationship

with his mother. He also testified that Foster had an IQ of 73 and struggled in

school.

Finally, Detective Michael Harrigan (“Harrigan”) of the Cleveland

Division of Police’s gang impact unit testified as to Foster’s involvement with a gang

known as the Spider Gang. Harrigan testified as to his 2019 investigation of the

Spider Gang, stating that Foster was a known member of the gang and testifying as

to numerous photographs shared on social media showing Foster and other

members of the Spider Gang displaying firearms.

Foster called Jane Petty, a mental health therapist, who testified that

Foster’s mental health and behavior improved during his time in juvenile detention.

Following the amenability hearing, the juvenile court relinquished

jurisdiction to the general division court after considering the factors set forth in

R.C. 2152.12. In a corresponding journal entry, the juvenile court made the

following findings:

The court finds after a full investigation, including a mental examination of [Foster] by a duly qualified person, and after full consideration of the child’s prior juvenile record, family environment, school record, efforts previously made to treat and rehabilitate the child, including prior commitments to the Department of Youth Services, the nature and severity of the offense herein, the age, physical, and mental condition of the victim as effected by the matter herein, and other matters of evidence, that there are reasonable grounds to believe that the child herein is not amenable to care or rehabilitation within the juvenile system. The court further finds that the safety of the community may require that the child be subject to adult sanctions.

The court considered the relevant factors in favor of transfer pursuant to R.C. 2152.12(D) and makes the following findings:

1. The victim suffered physical or psychological harm, or serious economic harm.

2. The child allegedly committed the act charged for hire or as a part of a gang or other organized criminal activity.

3. The child had a firearm on or about the child’s person or under the child’s control at the time of the act charged, the act charged is not a violation of R.C. 2923.12, and the child, during the commission of the act charged, allegedly used or displayed the firearm, brandished the firearm, or indicated that the child possessed a firearm.

4. At the time of the act charged, the child was awaiting adjudication or disposition as a delinquent child, was under a community control sanction, or was on parole for a prior delinquent child adjudication or conviction.

5. The results of any previous juvenile sanctions and programs indicate that rehabilitation of the child will not occur in the juvenile system.

6. The child is emotionally, physically, or psychologically mature enough for the transfer.

7. There is not sufficient time to rehabilitate the child within the juvenile system.

The court further found that none of the relevant factors against transfer in R.C.

2152.12(E) applied to Foster.

Upon transfer to the general division court, on January 27, 2021, a

Cuyahoga County Grand Jury indicted Foster on 57 counts of a 65-count indictment.

Foster initially pleaded not guilty to the indictment. Two years later, on January 9, 2023, Foster pleaded guilty to criminal

gang activity in violation of R.C. 2923.42, grand theft in violation of R.C.

2913.02(A)(1), criminal damaging in violation of R.C. 2909.06(A)(1), felonious

assault in violation of R.C. 2903.11(A)(1), felonious assault in violation of R.C.

2903.11(A)(2), two counts of attempted murder in violation of R.C. 2923.02 and

2903.02(A), two counts of having weapons while under disability in violation of R.C.

2923.13(A)(1), breaking and entering in violation of R.C. 2911.13, improper

discharge of a firearm at or into habitation or school in violation of R.C.

2923.162(A)(3), aggravated robbery in violation of R.C. 2911.01(A)(1), and

vandalism in violation of R.C. 2909.05(B)(2). Foster also pleaded guilty to multiple

firearm specifications and forfeiture specifications. The state of Ohio and Foster’s

counsel proposed a recommended agreed prison sentence of 14 years in prison. The

state asserted that one count of attempted murder was subject to the Reagan Tokes

Law; defense counsel objected to the application of the Reagan Tokes Law.

On January 20, 2023, the court accepted the recommended sentence

and sentenced Foster to 14 to 15- and one-half years in prison, pursuant to Reagan

Tokes. The court also ordered that Foster would receive jail-time credit for 1,172

days.

Foster filed a timely notice of appeal and presents a single assignment

of error for our review:

The juvenile court abused its discretion by granting the state’s motion to relinquish jurisdiction. Law and Analysis

In his sole assignment of error, Foster argues that the juvenile court

abused its discretion by finding that Foster was not amenable to juvenile sanctions.

Specifically, Foster argues that the juvenile court either did not appropriately weigh

relevant factors against transfer or disregarded these factors entirely.

In Ohio’s juvenile justice system, there are two types of transfer:

mandatory and discretionary. State v. Crosby, 8th Dist. Cuyahoga Nos. 107392 and

107551, 2019-Ohio-2217, ¶ 24, citing State v. Mays, 2014-Ohio-3815, 18 N.E.3d 850,

¶ 17 (8th Dist.), citing State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978

N.E.2d 894. While mandatory transfer removes discretion from judges in certain

situations, discretionary transfer allows judges the discretion to transfer or bind

over to adult court certain juveniles who do not appear to be amenable to care or

rehabilitation within the juvenile system and appear to be a threat to public safety.

A juvenile court’s amenability determination is reviewed for abuse of

discretion. Crosby at ¶ 28, citing State v. Jones, 8th Dist. Cuyahoga No. 99044,

2013-Ohio-3725, ¶ 9, and In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897

N.E.2d 629. The term abuse of discretion “implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983). An abuse of discretion occurs when a court

exercises its judgment in an unwarranted way regarding a matter over which it has

discretionary authority. Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304,

187 N.E.3d 463, ¶ 35. In a discretionary transfer proceeding under R.C. 2152.12, the

juvenile court may not transfer jurisdiction without first finding that (1) the child

was 14 or older at the time of the offenses, (2) there is probable cause to believe that

the child committed the offenses, and (3) “[t]he child is not amenable to care or

rehabilitation within the juvenile system, and the safety of the community may

require that the child be subject to adult sanctions.” R.C. 2152.12(B)(1)-(3). In the

instant case, Foster does not dispute that he was 14 or older at the time of the

offenses or that there was probable cause to believe that he committed the offenses.

Therefore, this appeal is solely concerned with the third finding: whether Foster is

amenable to care or rehabilitation within the juvenile system.

In making the amenability determination under subdivision (B)(3),

the juvenile court is required to consider whether the applicable factors under R.C.

2152.12(D) indicating that the case should be transferred outweigh the applicable

factors under R.C. 2152.12(E) indicating that the case should not be transferred.

R.C. 2152.12(B)(3). Neither list of factors is exhaustive, and the specific factors

under consideration must be indicated within the record. Id. In light of “‘the

discretion afforded the juvenile court by the legislature in determining a juvenile’s

amenability to the juvenile justice system,’” the juvenile court’s amenability

determination cannot be reversed if “‘there is some rational and factual basis to

support the trial court’s decision.’” State v. Nicholson, 8th Dist. Cuyahoga No.

110595, 2022-Ohio-2037, ¶ 206, quoting Crosby, 8th Dist. Cuyahoga Nos. 107392 and 107551, 2019-Ohio-2217, at ¶ 28, and State v. West, 167 Ohio App.3d 598, 2006-

Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.). No one factor controls over any other.

Pursuant to R.C. 2152.12(D), the relevant factors in favor of transfer

include:

(1) The victim of the act charged suffered physical or psychological harm, or serious economic harm, as a result of the alleged act.

(2) The physical or psychological harm suffered by the victim due to the alleged act of the child was exacerbated because of the physical or psychological vulnerability or the age of the victim.

(3) The child’s relationship with the victim facilitated the act charged.

(4) The child allegedly committed the act charged for hire or as a part of a gang or other organized criminal activity.

(5) The child had a firearm on or about the child’s person or under the child’s control at the time of the act charged, the act charged is not a violation of section 2923.12 of the Revised Code, and the child, during the commission of the act charged, allegedly used or displayed the firearm, brandished the firearm, or indicated that the child possessed a firearm.

(6) At the time of the act charged, the child was awaiting adjudication or disposition as a delinquent child, was under a community control sanction, or was on parole for a prior delinquent child adjudication or conviction.

(7) The results of any previous juvenile sanctions and programs indicate that rehabilitation of the child will not occur in the juvenile system.

(8) The child is emotionally, physically, or psychologically mature enough for the transfer.

(9) There is not sufficient time to rehabilitate the child within the juvenile system. Pursuant to R.C. 2152.12(E), the relevant factors against transfer

(1) The victim induced or facilitated the act charged.

(2) The child acted under provocation in allegedly committing the act charged.

(3) The child was not the principal actor in the act charged, or, at the time of the act charged, the child was under the negative influence or coercion of another person.

(4) The child did not cause physical harm to any person or property, or have reasonable cause to believe that harm of that nature would occur, in allegedly committing the act charged.

(5) The child previously has not been adjudicated a delinquent child.

(6) The child is not emotionally, physically, or psychologically mature enough for the transfer.

(7) The child has a mental illness or intellectual disability.

(8) There is sufficient time to rehabilitate the child within the juvenile system and the level of security available in the juvenile system provides a reasonable assurance of public safety.

Foster argues that the fact that he went AWOL while on probation for

prior offenses is insufficient to determine that he is not amenable to juvenile

rehabilitation or that he was not responsive to previously implemented sanctions,

such as community service and family therapy. Further, Foster argues that given

the fact that he was a 14-year-old boy with a difficult family life and low intellectual

function, it “is not surprising that Foster might have chosen to take to the streets

rather than take it upon himself to find a mentor and perform community service.”

Finally, Foster argues that at the time of the amenability hearing, he was 15 years old and had never been committed to the Ohio Department of Youth Services

(“ODYS”), and there was no testimony that he had been placed at a correctional

facility or residential facility; therefore, those sanctions were available for the

juvenile court to attempt to rehabilitate Foster.

“‘An offender’s disagreement with the way the juvenile court weighed

the factors is not a reason to reverse the court’s decision.’” State v. Jordan, 8th Dist.

Cuyahoga No. 111547, 2023-Ohio-311, ¶ 12, quoting State v. Cunningham, 6th Dist.

Lucas No. L-21-1136, 2022-Ohio-3497, ¶ 100, citing State v. Ramsden, 12th Dist.

Clinton No. CA2020-11-016, 2021-Ohio-3071, ¶ 23.

Our review of the record reveals that the trial court considered all of

the relevant factors in favor of and against transfer and heard evidence related to

each relevant factor. Further, the trial court’s findings related to these factors are

supported by competent, credible evidence.

While Foster may disagree with the trial court’s findings related to the

statutory factors, this is insufficient to show that the trial court’s findings somehow

constitute an abuse of discretion. Because nothing about the trial court’s

determination that Foster was not amenable to juvenile court sanctions was

unreasonable, arbitrary, or unconscionable, we decline to find the juvenile court’s

relinquishment of jurisdiction an abuse of discretion. Therefore, Foster’s

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 to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, PRESIDING JUDGE

LISA B. FORBES, J., and SEAN C. GALLAGHER, J., CONCUR