State v. Hall

2011 Ohio 4389

Opinion

[Cite as State v. Hall, 2011-Ohio-4389.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs- Case No. 2011 CA 00049 VERNARD A. HALL

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2010 CR 01949

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 29, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO RODNEY A. BACA PROSECUTING ATTORNEY SCHNARS. BACA & INFANTINO RENEE M. WATSON 610 Market Avenue North ASSISTANT PROSECUTOR Canton, Ohio 44702 110 Central Plaza South, Suite 510 Canton, Ohio 44702 Stark County, Case No. 2011 CA 00049 2

Wise, J.

{¶1} Appellant Vernard A. Hall appeals the decision of the Stark County Court

of Common Pleas, Juvenile Division, transferring his case for criminal prosecution as an

adult to the Court of Common Pleas General Division

STATEMENT OF THE FACTS AND CASE

{¶2} On November 11, 2010, at approximately 9:00 p.m., four young males

entered the Maggiore's on East Tuscarawas Avenue in Stark County, Ohio. They were

all dressed in dark clothing and three of the four were brandishing handguns. Two

women were working the store that evening, Eleanor Shroder and April Culbertson. One

of the suspects pointed a gun at Shroder’s face. Shroder stated that she could see the

weapon was a semiautomatic, which she recognized by the clip inserted at the base of

the gun. A second of the four suspects went to Culbertson and put a semiautomatic gun

in her face. The gun was so close to her face that she could not have put her hand in

between the two.

{¶3} When Culbertson failed to put her hands up right away as directed, the

four laughed, told her they were serious, and again told her to put her hands up.

Although the suspect in front of her was wearing a mask, Culbertson was able to

identify the suspect as a young black male. The robbers took $139.48 in cash, as well

as potato chips and tobacco products.

{¶4} Two days later, another armed robbery took place on East Tuscarawas,

this time at the Family Dollar store. Three suspects carried out the crime, with one

wielding a handgun. The suspects ordered the two women working to open their cash Stark County, Case No. 2011 CA 00049 3

drawers. They then took $594.00 from the cash drawers, cell phones, and other

miscellaneous merchandise from around the cash registers before fleeing the scene.

{¶5} One of the employees managed to push the police emergency call button

located under the counter during the robbery. Canton Police officers and a K-9 unit

promptly arrived at the scene and with the assistance of the K-9 unit, were able to track

the suspects to a house nearby on 4th Street. The three suspects, Ganzalee Jones,

Matthew Smith and Appellant, Vernard Hall, fled from the home. As they ran, Jones

dropped a gun, which Appellant picked up and threw into the creek behind the home.

The suspects then attempted to hide in a storm drain in the creek where they were

located and taken into custody.

{¶6} At the police station, Appellant agreed to speak with Sergeant Eric Risner.

While discussing the Family Dollar robbery, Appellant also admitted to his involvement

in the Maggiore's robbery. He would not, however, give any information as to who the

other three robbers were in the Maggiore's incident, nor who among the four of them

were the ones brandishing weapons.

{¶7} Appellant admitted that while fleeing police after the Family Dollar incident,

he threw the gun used in that incident into the creek. He claimed that the gun was

actually a BB gun.

{¶8} Upon speaking with Maggiore's employees Shroder and Culbertson, a

week after they were robbed, Sgt. Risner stated that Shroder was still very shaken up

over the event. Both women described the weapons used as similar in appearance to

Sgt. Risner's semiautomatic sidearm. Stark County, Case No. 2011 CA 00049 4

{¶9} At the conclusion of his investigation, Sgt. Risner filed two complaints in

the juvenile court against Appellant alleging he committed acts that if committed by an

adult would constitute aggravated robbery for the Maggiore's incident, and complicity to

aggravated robbery for the Family Dollar incident.

{¶10} On December 3, 2010, the State of Ohio filed a motion for mandatory

transfer.

{¶11} On December 28, 2010, a probable cause hearing was held pursuant to

the State of Ohio's motion for transfer of jurisdiction pursuant to R.C. §2152.10 and R.C.

§2152.12.

{¶12} After hearing the evidence outlined above, in regard to the aggravated

robbery, the trial court concluded:

{¶13} “The juvenile's stipulated DOB is 2-3-93, and he was 17 years old on the

date of the alleged offenses. This juvenile is charged with one count of Aggravated

Robbery (F-l), a Category Two Offense. This juvenile had a firearm on or about his

person, or under his control and displayed or brandished the same ...”

{¶14} The trial court then ordered that Appellant be transferred to the General

Division of the Common Pleas Court of Stark County, Ohio, for criminal prosecution as

an adult for aggravated robbery. As to the complicity to aggravated robbery for the

Family Dollar incident, the court took the matter under advisement.

{¶15} On January 28, 2011, Appellant was indicted on one count of aggravated

robbery in violation of R.C. §2923.03(A)(2) and/or (A)(3) complicity to robbery.

{¶16} Appellant was arraigned on February 4, 2011. Stark County, Case No. 2011 CA 00049 5

{¶17} On February 22, 2011, Appellant entered a plea of no contest to the

charges and was sentenced by the trial court.

{¶18} Appellant now appeals, with the only issue being that the trial court

abused its discretion when it transferred Appellant for criminal prosecution as an adult

to the Court of Common Pleas General Division.

ASSIGNMENT OF ERROR

{¶19} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT MADE ITS

RULING THAT THE APPELLANT BE TRANSFERRED FOR CRIMINAL

PROSECUTION AS AN ADULT FROM JUVENILE COURT TO THE COURT OF

COMMON PLEAS GENERAL DIVISION.”

I.

{¶20} In his sole assignment of error, Appellant claims that the trial court abused

its discretion in ordering mandatory bind-over from the juvenile division to the general

division. We disagree.

{¶21} Revised Code §2152.10 sets forth the procedure regarding bind-over:

{¶22} Mandatory transfer; discretionary transfer

{¶23} “(A) A child who is alleged to be a delinquent child is eligible for mandatory

transfer and shall be transferred as provided in section 2152.12 of the Revised Code in

any of the following circumstances:

{¶24} “(1) The child is charged with a category one offense and either of the

following apply:

{¶25} “(a) The child was sixteen years of age or older at the time of the act

charged. Stark County, Case No. 2011 CA 00049 6

{¶26} “(b) The child was fourteen or fifteen years of age at the time of the act

charged and previously was adjudicated a delinquent child for committing an act that is

a category one or category two offense and was committed to the legal custody of the

department of youth services upon the basis of that adjudication.

{¶27} “(2) The child is charged with a category two offense, other than a

violation of section 2905.01 of the Revised Code, the child was sixteen years of age or

older at the time of the commission of the act charged, and either or both of the

{¶28} “(a) The child previously was adjudicated a delinquent child for committing

an act that is a category one or a category two offense and was committed to the legal

custody of the department of youth services on the basis of that adjudication.

{¶29} “(b) The child is alleged to have had a firearm on or about the child's

person or under the child's control while committing the act charged and to have

displayed the firearm, brandished the firearm, indicated possession of the firearm, or

used the firearm to facilitate the commission of the act charged.

{¶30} (3) Division (A)(2) of section 2152.12 of the Revised Code applies.

{¶31} (B) Unless the child is subject to mandatory transfer, if a child is fourteen

years of age or older at the time of the act charged and if the child is charged with an

act that would be a felony if committed by an adult, the child is eligible for discretionary

transfer to the appropriate court for criminal prosecution. In determining whether to

transfer the child for criminal prosecution, the juvenile court shall follow the procedures

in section 2152.12 of the Revised Code. If the court does not transfer the child and if the Stark County, Case No. 2011 CA 00049 7

court adjudicates the child to be a delinquent child for the act charged, the court shall

issue an order of disposition in accordance with section 2152.11 of the Revised Code.”

{¶32} Revised Code §2152.12(A)(1(b), provides:

{¶33} “(A)(1)(b) After a complaint has been filed alleging that a child is a

delinquent child by reason of committing a category two offense, the juvenile court at a

hearing shall transfer the case if section 2152.10 of the Revised Code requires the

mandatory transfer of the case and there is probable cause to believe that the child

committed the act charged”

{¶34} The Ohio Supreme Court held in State v. Iacona (2001), 93 Ohio St.3d 83,

2001-Ohio-1292:

{¶35} “As the court of appeals in the instant case correctly observed, a juvenile

court at a bindover hearing need not “ ‘find as a fact that the accused minor is guilty of

the offense charged. It simply finds the existence of probable cause to so believe,’ ”

quoting State v. Whiteside (1982), 6 Ohio App.3d 30, 36, 6 Ohio B. Rep. 140, 146, 6

Ohio App.3d 30, 452 N.E.2d 332, 338. The juvenile court in the case at bar described its

responsibility in considering the issue of probable cause as being an obligation to

determine whether there is “some credible evidence as to each and every element of

the offense.” The court of appeals, on the other hand, defined “probable cause” as “a

flexible concept, grounded in probabilities, requiring more than a mere suspicion of guilt

but a degree of proof less than that required to sustain a conviction,” citing Brinegar v.

United States (1949), 338 U.S. 160, 175, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879,

1890. These two standards, while subtly different, are not irreconcilable. Stark County, Case No. 2011 CA 00049 8

{¶36} “We hold that the state must provide credible evidence of every element of

an offense to support a finding that probable cause exists to believe that the juvenile

committed the offense before ordering mandatory waiver of juvenile court jurisdiction

pursuant to R.C. 2151.26(B). See Zarzycki, A Current Look at Ohio's Juvenile Justice

System on the 100th Anniversary of the Juvenile Court (1999), 47 Cleve.St.L.Rev. 627,

647. In meeting this standard the State must produce evidence that raises more than a

mere suspicion of guilt, but need not provide evidence proving guilt beyond a

reasonable doubt.

{¶37} “Accordingly, in determining the existence of probable cause the juvenile

court must evaluate the quality of the evidence presented by the state in support of

probable cause as well as any evidence presented by the respondent that attacks

probable cause. See Kent, 383 U.S. at 563, 86 S.Ct. at 1058, 16 L.Ed.2d at 98.”

{¶38} In the case sub judice, the juvenile court complaint charged Appellant with

one count of aggravated robbery, in violation of R.C. §2911.01, which provides:

{¶39} Aggravated robbery

{¶40} “(A) No person, in attempting or committing a theft offense, as defined in

section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or

offense, shall do any of the following:

{¶41} “(1) Have a deadly weapon on or about the offender's person or under the

offender's control and either display the weapon, brandish it, indicate that the offender

possesses it, or use it;” Stark County, Case No. 2011 CA 00049 9

{¶42} In this case, the aggravated robbery charge requires the State to prove

that Appellant possessed a deadly weapon but the bind-over statute requires the State

to prove that he possessed a firearm.

{¶43} R.C. §2923.11 defines a firearm as:

{¶44} “(B)(1) “Firearm” means any deadly weapon capable of expelling or

propelling one or more projectiles by the action of an explosive or combustible

propellant. “Firearm” includes an unloaded firearm, and any firearm that is inoperable

but that can readily be rendered operable.

{¶45} “(2) When determining whether a firearm is capable of expelling or

propelling one or more projectiles by the action of an explosive or combustible

propellant, the trier of fact may rely upon circumstantial evidence, including, but not

limited to, the representations and actions of the individual exercising control over the

firearm.”

{¶46} In the case sub judice, Appellant admitted his involvement in the

Maggiore’s robbery as well as the Family Dollar robbery. Appellant, however, argues

that the State failed to present evidence to show a firearm was used in the Maggiore

robbery or that Appellant had a firearm on or about his person or under his control

during that robbery. Accordingly, Appellant asserts the bind-over was improper.

{¶47} Initially we find that the acts charged in the complaint in this matter would

constitute the offense of aggravated robbery, if committed by an adult, a category two

offense. Further, it was stipulated that Appellant was 17 years old at the time of the

offense. The charge therefore brings the case within the mandatory bind-over

provisions. Stark County, Case No. 2011 CA 00049 10

{¶48} At the bind-over hearing in this case, the State presented the testimony of

Sgt. Risner. Sgt. Risner testified that he interviewed both Eleanor Schroder and April

Culberson, the Maggiore’s employees who were working at the time of the robbery, and

both women stated that three of the four robbers had weapons, which they described as

semi-automatic handguns. Both women recounted to him how the robbers pointed the

guns in their faces and warned them “Look, we’re serious here. Put your hands up.” (T.

at 9-11).

{¶49} Concerning operability, “the trier of fact may rely upon circumstantial

evidence, including, but not limited to, the representations and actions of the individual

exercising control over the firearm.” R.C. §2923.11(B)(2). “The [S]tate can prove that

the weapon was operable or could readily have been rendered operable at the time of

the offense in a variety of ways without admitting the firearm allegedly employed in the

crime into evidence.” State v. Gains (1989), 46 Ohio St.3d 65, 545 N.E.2d 68, syllabus.

{¶50} In Thompkins, supra, the Ohio Supreme Court held in paragraph one of

the syllabus, that “the trier of fact may consider all relevant facts and circumstances

surrounding the crime, which include any implicit threat made by the individual in control

of the firearm” when determining whether a weapon was operable. Since Thompkins,

this Court has routinely found sufficient evidence to support a firearm specification when

the defendant brandished a firearm and implicitly threatened to fire it by pointing it at the

victim. See State v. Hayes, Cuyahoga App. No. 93785, 2010–Ohio–5234; State v.

Brooks, Cuyahoga App. No. 92389, 2009–Ohio–5559; State v. Robinson, Cuyahoga

App. No. 80718, 2003–Ohio–156. Stark County, Case No. 2011 CA 00049 11

{¶51} In this case, we have an implicit threat of violence towards the victims.

The State offered sufficient evidence of operability through testimony that the robbers

pointed guns in the employees’ faces and warned them that they were “serious” and

that they should put their hands up. (T. at 9-11). Sgt. Risner testified that both women

believed the guns were real and they were in fear for their lives. Sgt. Risner further

testified that the women stated that the gun looked similar to the semiautomatic

handgun which he carried as his service weapon.

{¶52} Based on the foregoing, we agree with the trial court's finding of probable

cause to believe Appellant committed the offense alleged and find the court's

relinquishment of jurisdiction proper pursuant to R.C. §2152.12.

{¶53} Appellant’s sole assignment of error is overruled.

{¶54} For the foregoing reasons, the judgment of the Court of Common Pleas,

Stark County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Edwards, J., concur.

___________________________________

JUDGES JWW/d 0728 Stark County, Case No. 2011 CA 00049 12

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : VERNARD A. HALL : : Defendant-Appellant : Case No. 2011 CA 00049

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

Costs assessed to Appellant.

JUDGES