State v. McBride

2023 Ohio 16, 205 N.E.3d 663

• Court: Ohio Court of Appeals
• Decided: January 6, 2023
• Docket: C-200443
• Status: Published

Opinion

[Cite as State v. McBride, 2023-Ohio-16.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-200443 TRIAL NO. B-1900691 Plaintiff-Appellee, : O P I N I O N. vs. :

DAVID MCBRIDE, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: Jaunary 6, 2023

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson and Jessica Moss, Assistant Public Defenders, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, PRESIDING JUDGE.

{¶1} This appeal concerns R.C. 2152.12(B), Ohio’s discretionary-bindover

statute. We are asked to determine the standard of proof necessary to support a

juvenile court’s determination under R.C. 2152.12(B) that a child is not amenable to

rehabilitation in the juvenile system as well as which party bears the burden of proof

regarding a child’s amenability to treatment.

{¶2} Defendant-appellant David McBride appeals the trial court’s judgment

convicting him, following a discretionary bindover from the juvenile court, of the

offenses of rape, attempted rape, public indecency, and burglary. McBride argues that

R.C. 2152.12(B) provides no standard of review for an appellate court to use when

reviewing the juvenile court’s determination that a child is not amenable to

rehabilitation within the juvenile system, nor does it address which party bears the

burden of proof concerning a child’s amenability to treatment. He urges this court to

hold that a juvenile court’s amenability determination must be supported by clear and

convincing evidence and that the state bears the burden of proof regarding

amenability.

{¶3} Both of these arguments were squarely addressed and rejected by the

Supreme Court of Ohio in State v. Nicholas, Slip Opinion No. 2022-Ohio-4276. We

follow Nicholas and hold that a juvenile court’s amenability determination must be

supported by a preponderance of the evidence, rather than clear and convincing

evidence, and that while the state bears the burden of persuasion regarding a child’s

amenability to treatment in the juvenile system, it is not required to produce

affirmative evidence of nonamenability.

{¶4} We further find no merit to McBride’s additional argument that the

juvenile court abused its discretion when it found that he was not amenable to

treatment in the juvenile system and transferred jurisdiction of his charges to the court

of common pleas, and we affirm the trial court’s judgment.

2 OHIO FIRST DISTRICT COURT OF APPEALS

McBride’s Crime Spree and Bindover

{¶5} On July 19, 2018, McBride, who was then 15 years old, was terminated

from a period of probation that he had been serving for his adjudication as a

delinquent for the offense of gross sexual imposition. On that same day, as well as on

July 23, 2018, McBride committed a series of offenses that resulted in the state filing

complaints in juvenile court charging him with acts which, if committed by an adult,

would have constituted the offenses of rape, attempted rape, kidnapping, and

burglary. With the exception of the complaint for burglary, each complaint

additionally alleged two firearm specifications.

{¶6} The state filed a motion for relinquishment of jurisdiction as to all

charges, which were subject to discretionary, rather than mandatory, transfer. The

juvenile court held a hearing to determine whether there was probable cause that

McBride committed the charged offenses.

A. Probable-Cause Hearing

{¶7} At the probable-cause hearing, Cincinnati Police Detective Charlene

Morton testified that she investigated a series of sexual offenses that occurred on July

19, 2018. Morton first investigated an offense of public indecency that occurred

around 4:30 in the afternoon, in which the suspect had approached a postal worker

while she was inside her vehicle. The suspect exposed himself, masturbated, and

asked the victim to perform oral sex on him. After the postal worker locked herself

inside the vehicle and called 911, the suspect fled.

{¶8} Morton also investigated an incident that occurred approximately one

hour later that same day. In that incident, the victim, M.H., witnessed the suspect

fondling himself in the parking lot of M.H.’s mother’s apartment complex while she

was taking out the trash for her mother. The suspect approached M.H. with a gun in

3 OHIO FIRST DISTRICT COURT OF APPEALS

his hands, pointed the weapon at her head, pulled down his pants and exposed his

penis, and demanded that she perform oral sex on him. Terrified, M.H. complied with

the suspect’s demand and began to perform the sexual act. The act was interrupted by

another resident of the apartment complex, who yelled at the suspect, causing him to

flee.

{¶9} Morton last testified about an attempted rape that she investigated later

that same night that occurred in the same parking lot as the attack on M.H. In that

incident, the suspect approached the victim, S.S., as she exited from her vehicle. He

pointed a gun at her and demanded that she get back in her car. S.S. complied, and

once they were both in the car, the suspect exposed his penis and demanded that S.S.

perform oral sex on him. S.S. refused to comply. She was able to knock the suspect’s

hand away and flee from the car.

{¶10} Through her investigation, Morton developed McBride as a suspect in

these offenses.1 She prepared a photographic lineup and showed it to all three victims

and several witnesses. Neither the postal worker nor S.S. were able to make an

identification. But M.H., as well as both the resident who interrupted the suspect’s

attack on her, and another witness, identified McBride in the lineup.

{¶11} Morton testified that McBride admitted his involvement in these offenses. He stated that the weapon used belonged to his sister, and that he had taken

it from her bedroom. A weapon was retrieved following a search of McBride’s sister’s

home, and McBride’s DNA was found on the weapon.

{¶12} Cincinnati Police Detective Charles Zopfi also testified at the probable-

cause hearing. Zopfi investigated an incident that occurred on July 23, 2018, at an

apartment complex on Clarion Avenue in Cincinnati. While exiting from her vehicle

in the parking lot of the apartment complex, the victim, T.B., witnessed a suspect

1 McBride raises no challenge to the juvenile court’s probable-cause determination in this appeal.

4 OHIO FIRST DISTRICT COURT OF APPEALS

exposing himself and masturbating. T.B. entered her apartment building, and while

she was attempting to unlock her door, the suspect approached her and grabbed her

buttocks from behind. T.B. threatened to call the police, causing the suspect to flee.

Detective Zopfi developed McBride as a suspect in this incident, and he prepared a

photograph lineup to show to T.B. T.B. identified McBride in the lineup.

{¶13} Following the hearing, the juvenile court found probable cause that

McBride had committed the charged offenses.

B. Amenability Hearing

{¶14} The juvenile court subsequently conducted an amenability hearing to

determine whether McBride was amenable to rehabilitation in the juvenile system.

{¶15} Several of the victims of McBride’s offenses testified at the hearing.

M.H. testified that she forgave McBride and that she wanted the court to take mercy

on him. S.S. also asked the court to have mercy on McBride and testified that she did

not want him to be tried as an adult. T.B. described the offenses that McBride

committed against her. When asked by the juvenile court about the impact of those

offenses, she stated, “And then at home I’m thinking, you know, this is a place for me

to be safe and, you know, you never expect that someone would do that to you.”

{¶16} Lieutenant Bill Smith with the Xavier University Police Department

testified that McBride committed two acts of public indecency on Xavier’s campus in

2016. The offenses committed by McBride at Xavier were not part of the current case,

but the juvenile court allowed Smith to testify over McBride’s objection.

{¶17} Detective Morton testified that she was concerned with the escalation of

the offenses that she investigated. She explained that McBride’s first offense against

the postal worker involved him asking her for oral sex and exposing himself. McBride

then approached M.H. with a weapon and forced her to perform oral sex on him. And

5 OHIO FIRST DISTRICT COURT OF APPEALS

he last approached S.S., again with a weapon, and forced her into her vehicle while

demanding that she perform oral sex on him. Detective Zopfi likewise testified

regarding his concern about the escalating violence in McBride’s offenses.

{¶18} McBride presented testimony from his sister Shanine Scott. Scott

testified that the charged incidents were not typical of McBride’s behavior throughout

his life, and that “the sexual thing with himself” began to develop in the preceding two

years when McBride began trying to figure out his sexual identity. Scott told the court

that McBride had been bullied, but that he was not a confrontational person and never

fought back. She also stated that he had watched pornography with a stepbrother and

had a bus driver speak with him about masturbation, but that McBride had not acted

out sexually after those experiences. Scott testified that McBride lived with his father

in Indianapolis for one summer, and that she believed his “masturbation issues”

started there.

{¶19} McBride presented what was essentially character testimony from both

Denishea Goodman and Gregory Goodrum. Goodman testified that she was the best

friend of McBride’s sister and that she viewed McBride as a brother. In Goodman’s

opinion, McBride’s family was not adept at dealing with emotions or conflicts, and

McBride did not receive the attention he needed, resulting in him becoming stressed

and experiencing depression.

{¶20} Goodrum testified that he taught McBride in both karate class and in

the Order of Pythagorans, an organization that taught youths how to run meetings and

taught them oratorical skills as well as math and physics skills. Goodrum testified that

McBride was a shining star in the program and had moved through the chairs at both

the local chapter and state level. He described McBride as shy, diligent, and smart.

According to Goodrum, he noticed a change in McBride after McBride’s mother

married his stepfather, stating that the marriage, as well as going through puberty,

“kind of changed him.”

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶21} McBride also presented testimony from two psychologists, Dr. Nicole

Leisgang, a psychologist appointed by the court to evaluate McBride’s amenability to

treatment and rehabilitation in the juvenile system, and Dr. Richard Rothenberg, a

psychologist retained by McBride for the same purpose.

{¶22} Leisgang testified that McBride presented as sad and overwhelmed. She

felt that he at times attempted to highlight his emotional difficulty, which she

explained was not uncommon in children. Leisgang was asked about her review of

McBride’s history, and she highlighted the following: that McBride had struggled

socially in school with peer rejection and bullying; that he was potentially the victim

of sexual abuse by his stepsister and physical abuse by his father; that McBride’s

parents were very willing to participate in services for him; and that McBride has

suffered from depression and has a history of suicidal ideation.

{¶23} Leisgang administered several psychological tests to McBride, including

the Malin Adolescent Clinical Inventory, the Adolescent Psychopathology Scale, and

the Risk Sophistication Treatment Inventory (“RSTI”). While she acknowledged that

these tests indicated that McBride was at a high risk for reoffending, she explained

that a high risk of reoffending did not equate to a lack of amenability to services in the

juvenile system.

{¶24} Leisgang issued a report opining that McBride was amenable to

rehabilitation in the juvenile system. The reported stated that:

David’s case is quite complicated. Within a very short time after

completing a residential and transition program, he re-offended. In

addition, there was a marked increase in the level of contact and

violence, evidenced by the presence of a weapon. Records indicate that

he allegedly victimized 4 women in less than one week (7/19 to 7/23).

Further the RSTI and OYAS were respectively indicative of high and

moderate risk of re-offending. An understanding of David is also quite

7 OHIO FIRST DISTRICT COURT OF APPEALS

complex. He presents with significant emotional difficulty, although

there is an element of exaggeration to it. Nonetheless, he has been

complaint [sic] with medication while at the Youth Center. He also has

had no behavioral incidents, suggesting that he can benefit from a

structured and supervised setting. While he has been diagnosed with

PTSD, his caretakers now question the incidents used to establish this

diagnosis. While the issues are complex, it is my opinion, offered with

a reasonable degree of psychological accuracy, that the preponderance

of the evidence would suggest that given his young age and the services

still available within the juvenile court system (e.g., DYS), David

McBride is amenable to intervention.

{¶25} In support of her report, Leisgang testified that McBride presented with

numerous factors indicating that he was amenable to treatment, including his

significant emotional distress and the fact that he is bothered by his sexual urges. She

stated that the juvenile system can offer individual and group counseling, psychotropic

medication, and age-appropriate intervention, and that McBride, at the time of the

hearing, had five and a half years to be rehabilitated in the juvenile system.

{¶26} Leisgang also testified that the RSTI she administered contained a Treatment Amenability Scale, and that McBride’s score fell in the middle offender

range of that scale. Leisgang’s report identified several risk factors pertaining to

McBride’s treatment amenability, including “past/current severe psychopathology,

ongoing behavior despite extensive treatment, and marginal acceptance of his own

responsibility.” But it also identified that McBride “scored low on other risks as he is

open to and expects change,” that he was distressed by his actions, and that he had

positive attachments.

{¶27} On cross-examination, Leisgang was questioned about the statement in

her report that McBride tended to exaggerate certain things about himself. She

8 OHIO FIRST DISTRICT COURT OF APPEALS

stressed that McBride was highlighting, rather than malingering, and that he did so

for an adaptive purpose because he was scared, rather than in an attempt to “con the

system.” Leisgang recognized that her report stated that “the pervasiveness of his

comments raises concerns as to whether he was purposely trying to present himself in

a negative light” and reflected that she had concerns that he was intentionally trying

to highlight his difficulties. But she maintained that, as an adolescent, McBride was

not attempting to engage in manipulation.

{¶28} Leisgang also acknowledged on cross-examination that McBride had

previously received sexual-offender treatment at the Village Network, a residential

treatment facility, that his discharge summary following that treatment indicated that

he had developed sufficient coping skills to handle his issues, and that McBride

committed several of the offenses with which he was currently charged on the day that

he was terminated from probation for the offenses for which he had received the

sexual-offender treatment at the Village Network. Leisgang testified that while the

discharge summary may have been correct at the time it was written, the skills

currently possessed by McBride were not sufficient for him to manage his stressors.

{¶29} Rothenberg also opined that McBride was amenable to rehabilitation in

the juvenile system. He issued a report stating that “Although David is at a well above

average risk of sexual recidivism it is my opinion offered with a reasonable degree of

psychological accuracy, that the preponderance of the evidence would suggest that

given his relatively young age and the services available within the juvenile justice

system, David is amenable to treatment.” The report further stated:

David would benefit from participating in sex offender specific

treatment. Based on his history and current risk and protective factors

I believe David’s least restrictive environment for treatment would be

an inpatient residential facility, most likely the Ohio Department of

Youth Services (DYS). He would likely benefit from participating in

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both individual and group therapy. Treatment should focus on his

ability to identify his risk factors related to his inappropriate sexual

behavior and how to manage his sexual feelings in an appropriate

manner when he does experience them. His treatment should also

include basic sexual education, social skills development and a better

understanding of the concept of consent in regards to sexual

relationships and appropriate sexual boundaries.

{¶30} Rothenberg testified in accordance with his report, stating that the best

treatment for McBride would be trauma-specific cognitive behavioral therapy, which

he had not previously received. He opined that although McBride was chronologically

almost 16 years old, he functioned at a much younger age both emotionally and

psychologically.

{¶31} Rothenberg discussed the prior treatment that McBride had received at

the Village Network, stating that McBride’s progress in that treatment was slow and

difficult, but that he made a significant amount of progress at the end of treatment.

He stated that McBride’s discharge papers reflected that there remained unresolved

problems and that McBride needed to honestly address trauma symptoms and

anxieties related to his family unit. Rothenberg also testified about the notes that he

had reviewed from McBride’s time at the Talbert House following his discharge from

the Village Network. Those notes reflected that McBride lacked a good understanding

of risk factors and of his relapse-prevention plan.

{¶32} Rothenberg testified that he had administered the Personality

Assessment Inventory for Adolescents to McBride, and that the results of that test

indicated that McBride was open to treatment and acknowledged that there were

issues he needed to work on. Rothenberg’s report discussed these test results and

cautioned that “the nature of some of [McBride’s] problems suggest that treatment

would be fairly challenging with a difficult treatment process and the probability of

10 OHIO FIRST DISTRICT COURT OF APPEALS

reversals.” The report also stated that the test results reflected an element of

exaggeration in complaints and problems. Rothenberg testified that the noted

exaggerations were more a sign of distress than of malingering or feigning of

symptoms.

{¶33} Rothenberg was questioned specifically on why he felt that McBride was

amenable to rehabilitation in the juvenile system, and he stated the following: that

McBride’s high risk of recidivism did not mean that he was not amenable to treatment;

that McBride was not psychologically or emotionally mature enough for adult court;

that McBride’s age indicated that his brain would continue to mature and develop,

thus increasing his ability to apply treatment concepts successfully; and that McBride

had accepted responsibility for his actions and had expressed genuine remorse and

guilt.

{¶34} McBride spoke at the amenability hearing, stating that he had

previously contained his emotions and tried to forget about them, which led to him

expressing his emotions in unhealthy ways. He told the court that after he finished his

earlier treatment, he felt that he needed additional treatment because his feelings had

not improved or changed. According to McBride, he has realized that his prior

treatment did not help him establish an understanding of why he acted the way he did.

He apologized for his actions and asked for the chance to be treated in the juvenile

system.

{¶35} The last witness to testify at the amenability hearing was Thomas Brock,

a Hamilton County juvenile probation supervisor. Brock testified about the treatment

program offered at the Village Network, which McBride successfully completed. He

also discussed the sexual-offender treatment offered at other DYS facilities.

11 OHIO FIRST DISTRICT COURT OF APPEALS

C. The Juvenile Court’s Amenability Determination

{¶36} The juvenile court issued an entry finding that McBride was not

amenable to care or rehabilitation within the juvenile system and granting the state’s

motion for relinquishment of jurisdiction.

{¶37} In support of its decision to transfer jurisdiction, the court noted that

McBride sexually assaulted four women, causing them both physical and psychological

harm; that the victims of McBride’s offenses were vulnerable due to their location and

physical circumstances; that McBride had no relationship with any of the victims and

targeted strangers, which elevated his risk for dangerousness and likelihood for

reoffending; that McBride acted alone; that McBride’s acts involved a concerning level

of planning and organization and evidenced an escalation in conduct and violence;

that McBride used a firearm in the commission of three of the offenses; that the

offenses were committed contemporaneously with McBride’s release from probation;

that McBride had previously been adjudicated delinquent for gross sexual imposition

and had completed intensive, residential sex-offender treatment followed by

outpatient sex-offender treatment; that McBride continued to reoffend despite the

existence of strong family support and successful completion of sex-offender

treatment; that despite Leisgang’s testimony to the contrary, the witness testimony

and McBride’s testing scores, including the manipulation of psychological testing to

his benefit, demonstrated that he was mature enough for transfer; and that, as

evidenced by McBride’s serial sexual offending and minimization of his responsibility

for his conduct, there was not sufficient time to rehabilitate McBride in the juvenile

system without compromising public safety.

12 OHIO FIRST DISTRICT COURT OF APPEALS

D. Trial Court Proceedings

{¶38} Following the juvenile court’s transfer of jurisdiction, McBride pled

guilty to rape with an accompanying weapon specification, attempted rape, public

indecency, and burglary. The trial court imposed an agreed sentence of 18 years of

imprisonment.

{¶39} McBride now appeals.

Challenges to R.C. 2152.12(B)

{¶40} In his first assignment of error, McBride raises several arguments

concerning R.C. 2152.12(B), Ohio’s discretionary-bindover statute.

{¶41} R.C. 2152.12(B) provides that:

Except as provided in division (A) of this section, after a complaint has

been filed alleging that a child is a delinquent child for committing an

act that would be a felony if committed by an adult, the juvenile court at

a hearing may transfer the case if the court finds all of the following:

(1) The child was fourteen years of age or older at the time of the act

charged.

(2) There is probable cause to believe that the child committed the act

(3) The 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. In making its decision under this division,

the court shall consider whether the applicable factors under division

(D) of this section indicating that the case should be transferred

outweigh the applicable factors under division (E) of this section

indicating that the case should not be transferred. The record shall

13 OHIO FIRST DISTRICT COURT OF APPEALS

indicate the specific factors that were applicable and that the court

weighed.

{¶42} McBride contends that the statute does not provide a standard of proof

for the juvenile court to apply when determining under R.C. 2152.12(B)(3) whether a

juvenile offender is amenable to care or rehabilitation in the juvenile system, and he

urges this court to hold that a juvenile court’s amenability determination must be

supported by clear and convincing evidence. He additionally argues that R.C.

2152.12(B) is silent as to which party bears the burden of proof regarding a child’s

amenability to treatment in the juvenile system. On that point, he asks this court to

hold that the state bears the burden of proving that a child is not amenable to

treatment.

A. No Waiver of Argument

{¶43} Before turning to the merits of McBride’s arguments, we consider the

state’s assertion that McBride failed to preserve them for appellate review. The state

argues that McBride failed to raise these arguments concerning R.C. 2152.12 below,

and hence has waived them on appeal. The law is well settled that “[i]ssues not raised

in the trial court may not be raised for the first time on appeal because they are deemed

waived.” In re A.T., 1st Dist. Hamilton Nos. C-170467, C-170468 and C-170469, 2018-

Ohio-2899, ¶ 12.

{¶44} During closing arguments at the amenability hearing, McBride argued

that “We do object for the record to the plain language of Revised Code 2152.12 in

regards to the factors, that they require essentially a presumption of guilt prior to any

adjudication or finding of guilt. We also object to any counting or calculating of factors

as it violates David’s right to fundamental fairness.” While McBride did not phrase his

argument below in the precise manner that he has on appeal, we hold that his

14 OHIO FIRST DISTRICT COURT OF APPEALS

contentions were sufficient to preserve his arguments concerning R.C. 2152.12 for

appellate review.

B. An Amenability Determination Must be Supported by a Preponderance of the Evidence

{¶45} We first consider McBride’s argument that a juvenile court’s

amenability determination under R.C. 2152.12(B)(3) must be supported by clear and

convincing evidence.

{¶46} The Supreme Court of Ohio recently considered—and rejected—this same argument in Nicholas, Slip Opinion No. 2022-Ohio-4276. In holding that a

juvenile court’s amenability determination under R.C. 2152.12(B)(3) must be

supported by a preponderance of the evidence, the court held that:

R.C. 2152.12(B)(3) requires a juvenile court to weigh the factors in R.C.

2152.12(D) in favor of transfer against the factors in R.C. 2152.12(E)

against transfer. To find that a juvenile is not amenable to treatment in

the juvenile system, the court need only conclude that the factors that

favor transfer outweigh the factors that counsel against transfer. By

requiring only a simple outweighing, R.C. 2152.12(B) by its terms

establishes a preponderance-of-the-evidence standard for deciding a

juvenile’s amenability.

* * *

This holding comports with other decisions of this court. For example,

in determining that the standard of proof under R.C. 2305.02, a

wrongful-conviction statute, was “the usual preponderance of the

evidence standard,” this court wrote, “The General Assembly, had it

wanted to do so, knew how to specify a ‘clear and convincing standard.’

” Walden v. State, 47 Ohio St.3d 47, 53, 547 N.E.2d 962 (1989). The

15 OHIO FIRST DISTRICT COURT OF APPEALS

Revised Code contains many statutes that expressly impose a clear-and-

convincing-evidence standard of proof. See, e.g., R.C. 2152.14(E)

(requiring findings by clear and convincing evidence to invoke the adult

portion of a serious-youthful-offender disposition); R.C. 5120.17(B)(4)

(requiring clear and convincing evidence of an inmate’s mental illness

to transfer the inmate to a psychiatric hospital); R.C. 2151.414(B)(1)

(requiring clear and convincing evidence that it is in a child’s best

interest to grant permanent custody of the child to a public children-

services agency or private child-placing agency). R.C. 2152.12(B)(3)

contains no such language. Rather, the statutory language is wholly

consistent with a preponderance-of-the-evidence standard of proof.

Id. at ¶ 29 and 30.

{¶47} The court additionally considered Nicholas’s argument that, regardless

of the clear statutory language, the constitutional guarantee of due process requires

use of a clear-and-convincing standard to determine a juvenile’s amenability to

rehabilitation in the juvenile system. Id. at ¶ 31. In rejecting that argument, the court

first noted that “The United States Supreme Court has held that a preponderance-of-

the-evidence standard is inadequate to satisfy due-process requirements in certain

types of cases.” Id. at ¶ 33. It referenced a few such types of cases, including a civil

state-law proceeding for the involuntary commitment of an individual to a mental

hospital. The court then recognized that the high court had never set forth a similar

requirement in situations involving the transfer of jurisdiction from a juvenile court

to an adult court, stating:

The United States Supreme 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.” Breed v. Jones,

421 U.S. 519, 537, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). For purposes of

16 OHIO FIRST DISTRICT COURT OF APPEALS

transferring a case from juvenile court to adult court, the Supreme Court

has held, albeit without specifically addressing the required standard of

proof, that the requirements of due process are satisfied when a juvenile

court issues a decision stating its reasons for the transfer after first

conducting a hearing at which the juvenile is represented by counsel.

Kent [v. United States], 383 U.S. [541,] at 557, 86 S.Ct. 1045, 16 L.Ed.2d

84 [(1966)]. And federal circuit courts have gone further, expressly

holding that the Due Process Clause of the United States Constitution

does not require a clear-and-convincing-evidence standard with respect

to juvenile-transfer decisions. See, e.g., United States v. Juvenile Male,

554 F.3d 456, 460 (4th Cir.2009); United States v. Doe, 49 F.3d 859,

868 (2d Cir.1995); United States v. T.F.F., 55 F.3d 1118, 1122 (6th

Cir.1995); United States v. A.R., 38 F.3d 699, 703 (3d Cir.1994); United

States v. Parker, 956 F.2d 169, 171 (8th Cir.1992); United States v.

Brandon P., 387 F.3d 969, 976-977 (9th Cir.2004). We agree with those

courts.

Id. at ¶ 34.

{¶48} We follow Nicholas and hold that a juvenile court’s amenability determination under R.C. 2152.12(B)(3) must be supported by a preponderance of the

evidence and not clear and convincing evidence.

D. Burden of Proof

{¶49} We now turn to McBride’s argument that the state bears the burden of

proving pursuant to R.C. 2152.12(B)(3) that a child is not amenable to rehabilitation

in the juvenile system. The Supreme Court of Ohio also considered this same

argument in Nicholas.

17 OHIO FIRST DISTRICT COURT OF APPEALS

{¶50} The Nicholas court first explained that the term “burden of proof”

encompassed two different aspects of proof, the burden of production and the burden

of persuasion. Nicholas, Slip Opinion No. 2022-Ohio-4276, at ¶ 25. It elucidated the

difference between these two concepts, stating:

The party having the burden of production on a particular issue will lose

on that issue as a matter of law if the party does not produce evidence

sufficient to make out a case for the trier of fact. State v. Robinson, 47

Ohio St.2d 103, 107, 351 N.E.2d 88 (1976). The burden of persuasion,

on the other hand, “refers to the risk which is borne by a party if the

[trier of fact] finds that the evidence is in equilibrium.” Id. “The party

with the burden of persuasion will lose if he fails to persuade the trier of

fact that the alleged fact is true by such quantum of evidence as the law

demands.” Id.

Id.

{¶51} While acknowledging that the party who files a motion typically bears

the burden of production with respect to the motion, the Nicholas court recognized

that the discretionary-transfer statute presented somewhat of a unique situation

because the statutory language required the juvenile court itself to order an

investigation before considering whether transfer to adult court was appropriate. Id.

at ¶ 26. In so concluding, it relied on the language of R.C. 2152.12(C), which provides

that when considering a discretionary transfer under R.C. 2152.12(B), the court “shall

order an investigation into the child’s social history, education, family situation, and

any other factor bearing on whether the child is amenable to juvenile rehabilitation,

including a mental examination of the child by a public or private agency or a person

qualified to make the examination.” R.C. 2152.12(C).

{¶52} The Nicholas court held that while the statute did not preclude the

parties from producing additional evidence regarding the child’s amenability, “it is

18 OHIO FIRST DISTRICT COURT OF APPEALS

evident from R.C. 2152.12 that the General Assembly did not intend to preclude

discretionary transfer based on the state’s failure to produce affirmative evidence of

nonamenability.” Nicholas at ¶ 26. It further held that while the state did not bear the

burden of production, it did bear the ultimate burden of persuasion to convince the

juvenile court to transfer a child’s case to adult court. Id. at ¶ 27.

{¶53} Following Nicholas, we reject McBride’s argument that the state should

be required to bear the burden of proving that a child is not amenable to rehabilitation

in the juvenile system and hold that “while the state bears the ultimate burden of

persuasion on the question of a juvenile’s nonamenability to treatment and

rehabilitation in the juvenile system, the state need not produce affirmative evidence

of nonamenability.” Id. at ¶ 57.

{¶54} McBride’s first assignment of error is accordingly overruled.

No Abuse of Discretion in Transfer of Jurisdiction

{¶55} In his second assignment of error, McBride argues that the juvenile

court abused its discretion when it found that he was not amenable to rehabilitation

in the juvenile system and transferred his case to adult court for criminal prosecution.

{¶56} As set forth above, R.C. 2152.12(B) provides that the juvenile court may transfer a child’s case to adult court if it finds that the child was at least 14 years old at

the time the offense was committed, there existed probable cause that the child

committed the charged offenses and that the child was not amenable to care or

rehabilitation in the juvenile system. In making the required amenability

determination, the juvenile court shall consider “whether the applicable factors under

division (D) of [R.C. 2152.12] indicating that the case should be transferred outweigh

the applicable factors under division (E) of [R.C. 2152.12] indicating that the case

should not be transferred.” R.C. 2152.12(B)(3). The juvenile court record “must

19 OHIO FIRST DISTRICT COURT OF APPEALS

‘indicate the specific factors that were applicable and that the court weighed.’ ” State

v. Marshall, 1st Dist. Hamilton No. C-150383, 2016-Ohio-3184, ¶ 14, quoting R.C.

2152.12(B)(3).

{¶57} As correctly identified by McBride, we review a juvenile court’s

amenability determination for an abuse of discretion. Id. at ¶ 15. We stated in

Marshall that:

R.C. 2152.12 is silent with regard to how a juvenile court should weigh

the factors in R.C. 2152.12(D) and (E). Thus, the juvenile court has the

discretion to determine how much weight should be accorded to any

given factor. See State v. Morgan, 10th Dist. Franklin No. 13AP-620,

2014-Ohio-5661, ¶ 37. “As long as the court considers the appropriate

statutory factors and there is some rational basis in the record to

support the court’s findings when applying those factors, [this court]

cannot conclude that the trial court abused its discretion in deciding

whether to transfer jurisdiction.” State v. West, 167 Ohio App.3d 598,

2006-Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.).

Id.; see State v. Ramsden, 12th Dist. Clinton No. CA2020-11-016, 2021-Ohio-3071, ¶

23. An abuse of discretion indicates “more than a mere error of law or judgment; it

implies that the trial court’s decision was unreasonable, arbitrary, or unconscionable.”

State v. Griffin, 2020-Ohio-3707, 155 N.E.3d 1028, ¶ 38 (1st Dist.).

{¶58} In determining that McBride was not amenable to rehabilitation in the

juvenile system, the juvenile court considered the factors in R.C. 2152.12(D) and (E)

weighing in favor of and against transfer. In its entry relinquishing and transferring

jurisdiction, the court specifically discussed its findings with respect to each factor.

The court’s reasons in support of its decision to transfer jurisdiction are set forth in

detail above.

20 OHIO FIRST DISTRICT COURT OF APPEALS

{¶59} McBride specifically contends that the court abused its discretion by

ignoring two expert reports stating that he was amenable to rehabilitation in the

juvenile system. “[A] juvenile court in making an amenability determination is

entitled to disagree with the opinion of a medical expert and may take into account the

severity of the offenses when considering whether a juvenile is mature enough for

transfer and whether enough time exists to rehabilitate in the juvenile-justice system.”

Marshall, 1st Dist. Hamilton No. C-150383, 2016-Ohio-3184, at ¶ 21. But while a trial

court is not required to automatically accept an expert opinion, the court may not

arbitrarily disregard the opinion of the expert and must provide an objective reason

for ignoring it. State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905, ¶

71; State v. Weaver, Slip Opinion No. 2022-Ohio-4371, ¶ 33.

{¶60} Both Leisgang and Rothenberg opined that McBride was amenable to

rehabilitation in the juvenile system. The juvenile court acknowledged and considered

their opinions in its entry. In rejecting the experts’ opinions that McBride was not

emotionally, physically, or psychologically mature enough for transfer, the juvenile

court stated:

Dr. Leisgang testified that in her professional opinion, the Defendant

was not emotionally mature enough for a transfer to adult court.

Although the doctor opined this position in court, the written report is

virtually silent on whether the Defendant’s emotional functioning falls

below his chronological age. The Court notes that the witness testimony

and the Defendant’s testing scores show that he is in fact, mature. The

Defendant was given an RSTI Interview and received high scores on his

Sophistication and Maturity. This scale is comprised of three clusters

including autonomy, cognitive capacities, and emotional maturity. Dr.

Leisgang further noted that the Defendant’s test scores on this scale

were suggestive of anti-social behavior. Additionally, testimony

21 OHIO FIRST DISTRICT COURT OF APPEALS

presented during the trial portrayed the Defendant as a contemplative,

intelligent, and mature individual who adapted to different situations

and easily assumed leadership roles.

Finally, the Court notes a level of maturity and sophistication in that the

Defendant tends to manipulate psychological testing to his benefit.

Each professional that interviewed the Defendant makes note that he

emphasizes his perceived weaknesses or struggles and minimizes his

abilities. The Court finds that the Defendant attempted to skew testing

results in the Defendant’s favor and minimize his culpability in the

offenses. Evidence was presented that established that the Defendant

is emotionally, physically, and psychologically mature.

As discussed above, the Defendant has shown that he is a mature and

high functioning individual as evidenced by his sophisticated and

calculated planning when committing these acts. The Court does take

the Defendant’s age into account, and looked very closely at the

testimony of Dr. Leisgang and Dr. Rothenberg in their explanation of

the development of a child’s brain and the maturity of any 15 year old.

However, the Court finds that sufficient evidence was presented to

establish the Defendant is in fact emotionally, physically and

psychologically mature enough for a transfer.

{¶61} As evidenced by these statements, the juvenile court provided an

objective reason for disregarding the experts’ opinions that McBride was not mature

enough for a transfer. The juvenile court relied on the results of the psychological test

administered by Leisgang, as well as the experts’ own testimony that the test results

indicated that McBride attempted to highlight his weakness and reflected an element

of exaggeration in his complaints and problems. The testimony of Goodrum,

22 OHIO FIRST DISTRICT COURT OF APPEALS

McBride’s own witness, supported the juvenile court’s statements about McBride’s

maturity and leadership skills.

{¶62} McBride additionally argues that the juvenile court erroneously

disregarded the experts’ testimony that there was sufficient time to rehabilitate him in

the juvenile system. His argument concerns the juvenile court’s finding under the

factor in favor of transfer set forth in R.C. 2152.12(D)(9), which states, “There is not

sufficient time to rehabilitate the child within the juvenile system.” It also concerns

the factor against transfer set forth in R.C. 2152.12(E)(8), which states, “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.”

{¶63} In rejecting the experts’ opinions and finding that there was not

sufficient time to rehabilitate McBride, the juvenile court stated:

According to the evidence presented, the Defendant received intensive

residential and outpatient therapy and rehabilitation services. The

evidence is uncontroverted that the Defendant is at an extremely high

risk for reoffending, and presents as an extremely dangerous offender.

He continued to engage in inappropriate sexually deviant behaviors,

minimized his responsibility for this conduct and displayed limited

insight into the dynamics behind his sexually offending behavior. More

problematic is that the Defendant’s serial sexual offending is

accelerating in frequency and aggression with the most recent rape

charges that were perpetrated with a firearm. Based on the record

before the Court, the evidence is compelling that the Defendant cannot

be rehabilitated in the time remaining within the juvenile system

without compromising public safety.

23 OHIO FIRST DISTRICT COURT OF APPEALS

The evidence is overwhelming and uncontroverted that the Defendant’s

treatment needs are significant and complex requiring lengthy and

protracted interventions to address his higher risk for reoffending.

Based upon the record and considering the time remaining under the

jurisdiction of the Juvenile Court, the Defendant poses an unacceptably

high risk for serious reoffending. The risk and danger to the community

is too great and the risk of reoffending is too high for the Defendant to

be rehabilitated within the juvenile court.

{¶64} The juvenile court again provided objective reasons for disregarding the

experts’ opinions on these factors. The record clearly contains support for the juvenile

court’s concerns for public safety and the escalating violence involved in McBride’s

offenses. And further support for the juvenile court’s determination that there does

not exist sufficient time to rehabilitate McBride in the juvenile system can be found in

Rothenberg’s report, which cautioned that “the nature of some of [McBride’s]

problems suggest that treatment would be fairly challenging with a difficult treatment

process and the probability of reversals.”

{¶65} McBride also contends that the juvenile court improperly relied on his

previous adjudication and sexual-offender treatment to find that he cannot be

rehabilitated in the juvenile system. On this point, the juvenile court stated that:

The new offenses were committed contemporaneously with the

Defendant’s release from probation. According to the evidence

presented, an administrative entry dated 07/19/18 terminated the

Defendant from official probation, which is the same date as three of the

four sexual assaults. Non-reporting probation remained in effect until

the Defendant’s 21st birthday. The Defendant may not have been aware

of his termination from probation. This leaves the Court with two

conclusions. Either the Defendant was aware that his probation had

24 OHIO FIRST DISTRICT COURT OF APPEALS

ended and committed these violent sexual offenses, or in the alternative,

the Defendant was not aware that his probation had ended and he

committed these violent and severe sexual acts while on probation. In

either scenario, these multiple sexual offenses represent a severe

escalation from his prior history of sexual offending behavior that

included a 2016 adjudication of delinquency for Gross Sexual

Imposition.

{¶66} McBride’s commission of multiple new offenses on the date that he was

released from probation was an appropriate factor for the court to consider. See R.C.

2152.12(D)(6) (the juvenile court shall consider whether “[a]t 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.”). The juvenile court’s consideration of McBride’s prior

treatment in juvenile court was also appropriate. See R.C. 2142.12(D)(7) (the juvenile

court shall consider whether “[t]he results of any previous juvenile sanctions and

programs indicate that rehabilitation of the child will not occur in the juvenile

system.”).

{¶67} As McBride correctly asserts, the record contained testimony about whether the sexual-offender treatment that he received for his 2016 adjudication

would be the same treatment that he would receive if he was rehabilitated for the

current offenses in the juvenile system. But the record does not indicate that the

juvenile court based its decision to transfer jurisdiction on the lack of available

treatment in juvenile court, which would have been improper. As the Supreme Court

of Ohio recently held in Nicholas, Slip Opinion No. 2022-Ohio-4276, at ¶ 55, “[t]he

conflation of the distinct issues of amenability and available services is especially

inappropriate in Ohio because R.C. Chapter 2152 does not limit a juvenile court’s

dispositional options to DYS commitment should the juvenile court retain

25 OHIO FIRST DISTRICT COURT OF APPEALS

jurisdiction,” and consequently a juvenile court “may not base a decision to transfer a

child to adult court on a perceived lack of DYS resources when the General Assembly

has made available other options should the need for those additional resources arise.”

{¶68} While the juvenile court recognized that McBride had previously

received sexual-offender treatment in juvenile court, it notably did not base its

decision to transfer jurisdiction on a lack of available services in juvenile court. When

considering R.C. 2152.12(D)(7), the court stated:

As a result of this adjudication [for gross sexual imposition] and the

recommendations from the Risk Assessment and Psychological

Evaluation by Dr. Dreyer, the Defendant completed intensive,

residential sex offender treatment and rehabilitation services at The

Village Network followed by outpatient sex offender treatment at the

Talbert House Safeguard Program. In these programs, the Defendant

received age appropriate Individual Therapy, Group Therapy, Family

Therapy, and Cognitive Behavioral Therapy (CBT) which included the

Pathways Treatment curriculum, a juvenile sex offender specific

therapy. The Defendant also received trauma informed treatment, art

therapy, music therapy, as well as therapy for emotional regulation,

anger management, empathy development, relationship issues, anxiety

and impulse management, social and coping skills, trauma recovery,

thinking errors and relapse prevention. The Defendant received

medication and med-somatic services. Finally, the Defendant

developed relapse prevention plans in each of his programs.

The Defendant had strong family support, structure and nurturance

from his mother and from positive adult role models in the community.

Despite the existence of strong family and community connections

coupled with the benefits that should have been associated with

26 OHIO FIRST DISTRICT COURT OF APPEALS

successful completion of intensive, age appropriate and sex offender

specific treatment, the Defendant continued to reoffend and escalate his

behaviors in an extreme and rapid fashion.

{¶69} Following our review of the record, we find no abuse of discretion in the

juvenile court’s determination that McBride was not amenable to rehabilitation in the

juvenile system. We do not take lightly the impact of a transfer of jurisdiction on a

juvenile. But in this case, the record clearly reflects that the juvenile court considered

the appropriate statutory factors, and it contains a rational basis to support the

juvenile court’s findings with respect to those factors. See Marshall, 1st Dist. Hamilton

No. C-150383, 2016-Ohio-3184, at ¶ 15. The juvenile court issued a well-thought-out

and thorough decision and did not act unreasonably, arbitrarily, or unconscionably in

finding that McBride was not amenable to rehabilitation in the juvenile system.

{¶70} McBride’s second assignment of error is overruled.

Conclusion

{¶71} For the reasons set forth in this opinion, we hold that a juvenile court’s

amenability determination under R.C. 2152.12(B)(3) must be supported by a

preponderance of the evidence, and that while the state is not required to produce

affirmative evidence of nonamenability, it does bear the ultimate burden of persuasion

on the question of a juvenile’s amenability to rehabilitation in the juvenile system. We

further hold that the juvenile court did not abuse its discretion in determining that

McBride was not amenable to rehabilitation in the juvenile system, and we affirm the

trial court’s judgment.

Judgment affirmed.

BERGERON, J., concurs in judgment only. CROUSE, J., concurs in part and dissents in part.

27 OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, J., concurring in part and dissenting in part.

{¶72} I concur with the lead opinion’s holding regarding the preponderance-

of-the-evidence standard and the burden of proof because those issues were recently

conclusively decided by the Supreme Court of Ohio in State v. Nicholas, Slip Opinion

No. 2022-Ohio-4276. However, because I believe that the juvenile court abused its

discretion in granting the state’s motion for relinquishment of jurisdiction, I must

respectfully dissent from that portion of the lead opinion.

{¶73} Pursuant to the Nicholas case, the prosecution has the “burden of

persuasion” in an amenability hearing. Nicholas at ¶ 27. Furthermore, in deciding

whether a juvenile should be transferred to the adult system, the court “need only

conclude that the factors that favor transfer outweigh the factors that counsel against

transfer,” which is a preponderance-of-the-evidence standard. Id. at ¶ 29. “ ‘[A]

preponderance of evidence means the greater weight of evidence. * * * The greater

weight may be infinitesimal, and it is only necessary that it be sufficient to destroy the

equilibrium.’ ” (Citations omitted.) Id.

{¶74} Our review of the juvenile court’s decision is for an abuse of discretion.

Thus, in order to reverse a juvenile court’s decision to transfer a juvenile to the adult

system, this court must find that the juvenile court abused its discretion by finding

that a preponderance of the evidence weighed in favor of a transfer. After a thorough

review of the record, I would hold that the juvenile court abused its discretion.

{¶75} What is so concerning to me about this case, is that two experts–one

appointed by the court and one hired by the defense–testified that they believed

McBride was amenable to treatment in the juvenile system. Both testified that

although McBride had previously received treatment in the system for a prior offense,

this treatment was not long enough because it was only for a year, not individualized,

and did not include an appropriate release prevention plan. Both experts believed that

McBride required much longer, age-appropriate, and more regular, individualized

28 OHIO FIRST DISTRICT COURT OF APPEALS

treatment. Both experts opined that DYS could adequately deliver such treatment

during the five years McBride had left in the juvenile system. There was no evidence

presented that DYS could not provide McBride with this type of treatment.

{¶76} The experts explained that even though McBride was at a high risk for

reoffending, this does not equate to lack of amenability. Both experts explained that

McBride was interested in treatment, had treatable mental-health issues, accepted

responsibility and was remorseful for what he had done, and had the support of his

family. Both experts explained that a juvenile’s brain is malleable, which makes him

more receptive to treatment and rehabilitation. Both agreed that as McBride ages, his

impulse control will improve, and he will be able to better apply the treatment

concepts.

{¶77} Dr. Leisgang, the court-appointed expert, testified:

There are rare instances of a 15-year-old who presents with such

glibness, such psychopathy, which even is amenable within juveniles

– * * * – there’s no interest in treatment that, yes, there is the possibility

that that 15-year-old – it would be a recommendation of transfer.

But in general, it’s kind of – the point of Juvenile Court is to rehabilitate

based on the malleable function of the brain.

{¶78} Dr. Leisgang explained that for the safety of the community, McBride

needed to be in a structured environment for five years. When asked by the prosecutor

if “this is basically saying lock him up for five years either way,” Dr. Leisgang

responded, “Well, DYS is actually a more protective factor than prison.”2 Dr. Leisgang

2 In this context, a “protective factor” refers to a “characteristic at the biological, psychological, family, or community (including peers and culture) level that is associated with a lower likelihood of problem outcomes or that reduces the negative impact of a risk factor on problem outcomes.” O’Connell, Boat & Warner, Preventing Mental, Emotional, and Behavioral Disorders Among Young People: Progress and Possibilities (2009), https://www.ncbi.nlm.nih.gov/books/n/nap12480/pdf/ (accessed Dec. 28, 2022).

29 OHIO FIRST DISTRICT COURT OF APPEALS

referred to studies that have established that the recidivism for transferred youth is

significantly higher than nontransferred youth.

{¶79} Furthermore, both experts opined that McBride was not psychologically

or emotionally mature enough to be transferred into the adult system. Dr. Rothenberg,

the defense expert, explained that even though McBride was almost 16 years old, he

was functioning emotionally and psychologically at a much lower level.

{¶80} The juvenile court disregarded this compelling and uncontroverted

testimony.

{¶81} The lead opinion correctly notes that a court may disagree with expert

opinions. However, a court may not arbitrarily disagree with or ignore expert opinions,

which is what I believe the juvenile court did in this case.

{¶82} An “expert opinion ‘may not be arbitrarily ignored, and some reason

must be objectively present for ignoring expert opinion testimony.’ ” (Emphasis sic.)

State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905, ¶ 71, quoting

United States v. Hall, 583 F.2d 1288, 1294 (5th Cir.1978). The trial court must “set

forth [some] rational basis grounded in the evidence for rejecting the uncontradicted

testimony of two qualified experts in the field of psychology.” Id. at ¶ 70; see Weaver,

Slip Opinion No. 2022-Ohio-4371, at ¶ 33.

{¶83} I disagree with the lead opinion that the trial court based its disregard

for the expert’s opinions on objective evidence. Rather, it appears that the trial court

merely substituted its own assessment of McBride for that of the experts. “While the

trial court is the trier of fact, it may not disregard credible and uncontradicted expert

testimony in favor of either the perceptions of lay witnesses or of the court’s own

expectations of how [the defendant] would behave. Doing so shows an arbitrary,

unreasonable attitude toward the evidence before the court and constitutes an abuse

of discretion.” White at ¶ 74.

30 OHIO FIRST DISTRICT COURT OF APPEALS

{¶84} The trial court did not make any findings that the expert witnesses

appearing before it lacked either credentials or credibility. Rather, the court found that

despite Dr. Leisgang’s testimony to the contrary, McBride’s testing scores and “the

witness testimony” showed that he was “emotionally, physically, and psychologically

mature” enough for a transfer.

{¶85} The Sophistication/Maturity Scale referenced in Dr. Leisgang’s report

and relied upon by the trial judge to come to his determination that McBride was

mature enough for a transfer, stated that McBride’s score “fell in the high range and is

suggestive of anti-social behavior.” It went on to state that “[r]isk factors include

past/current negative self-concept, problems delaying gratification, poor emotional

regulation and limited interpersonal skills.” The trial judge correctly noted that the

report was silent on whether he was mature enough for a transfer to adult court, but

the court, on its own, interpreted McBride’s scores in this area to mean that he was.

This is despite the fact that Dr. Leisgang testified that he was not.

{¶86} The trial judge also completely ignored the testimony of Dr. Rothenberg

that McBride was not emotionally, physically, or psychologically mature enough for a

transfer. It is an abuse of discretion for a court to completely disregard expert

testimony, especially when it has not made a finding that the expert lacked credentials

or credibility.

{¶87} The witness testimony the court relied on to support its rejection of the

expert testimony on lack of maturity was from Gregory Goodrum. Goodrum was a

mentor to McBride from age six until McBride moved to Indiana to live with his father,

sometime around the time that McBride entered puberty. While Goodrum did testify

that McBride was diligent and smart and exhibited leadership skills when he was

younger, he also testified that he noticed a change in him when his mother and

stepfather got together and he went through puberty. Goodrum testified that McBride

31 OHIO FIRST DISTRICT COURT OF APPEALS

began struggling and not doing very well. Certainly, such testimony cannot be

construed to mean that McBride was mature enough for a transfer. Even if Goodrum’s

testimony could be so construed, a trial court may not disregard credible and

uncontradicted expert testimony in favor of the perceptions of lay witnesses.

Goodrum’s testimony is not an objective reason for ignoring two expert opinions to

the contrary.

{¶88} While the court was free to take into consideration McBride’s high risk

of reoffending and concerns for public safety, those issues were addressed by both

expert witnesses, who testified that this does not equate to lack of amenability. The

court reasoned that because McBride previously was provided with one year of sex-

offender treatment by DYS, additional treatment for five years in DYS would not help,

despite the experts’ extensive testimony to the contrary. It did not base its rejection of

the expert testimony on any objective reason other than the court’s belief that because

treatment in the juvenile system did not work before, then it most likely would not

work again.

{¶89} If the legislature had intended past failure of treatment to be dispositive,

then it could have required transfer of all repeat offenders. Instead, the legislature

required an individual assessment of rehabilitation potential. The experts opined that

such potential existed, and the court disregarded the opinions without a basis in

evidence, other than the mere fact of lack of prior success and the severity of the

current charges.

{¶90} The court further found that McBride “has no signs of * * * serious

mental illness.” First, R.C. 2152.12(E)(7) states that a factor weighing against a transfer

is that “[t]he child has a mental illness,” not a serious mental illness. Second, the court

acknowledged that McBride “has been diagnosed with Exhibitionistic Disorder,

Paraphilic Disorder and Major Depressive Disorder with Anxiety.” Nevertheless, the

32 OHIO FIRST DISTRICT COURT OF APPEALS

court seemed to discount these diagnoses because it believed McBride may have been

exaggerating or feigning his symptoms due to comments made in a competency

evaluation by a different expert witness who did not testify at the hearing. Both experts

who did testify were questioned extensively about whether they believed McBride was

malingering, and each responded that in his or her expert opinion he was not. In fact,

Dr. Rothenberg testified that he interpreted McBride’s exaggeration “more as a sign of

distress than any kind of malingering or feigning of symptoms.”

{¶91} It is clear to me that the heinous facts of this case clouded the court’s

judgment, leading it to conclude that this child was not worthy of any further attempts

at rehabilitation and instead deserved to be warehoused in an adult prison. In fact, the

court wrote in its findings of fact and conclusions of law that “[t]his is a unique case,

and the most grave and extreme case the Court has seen involving a juvenile sex

offender.” But case facts should be considered to determine whether the juvenile is

amenable to treatment in the juvenile system and not whether the juvenile should be

punished in the adult system. As stated by the Supreme Court of the United States,

“Roper and Graham emphasized that the distinctive attributes of youth diminish the

penological justifications for imposing the harshest sentences on juvenile offenders,

even when they commit terrible crimes. Because “ ‘[t]he heart of the retribution

rationale’ ” relates to an offender’s blameworthiness, “ ‘the case for retribution is not

as strong with a minor as with an adult.’ ” Miller v. Alabama, 567 U.S. 460, 472, 132

S.Ct. 2455, 183 L.Ed.2d 407 (2012), quoting Graham v. Florida, 560 U.S. 48, 71, 130

S.Ct. 2011, 176 L.Ed.2d 825 (2010), quoting Tison v. Arizona, 481 U.S. 137, 149, 107

S.Ct. 1676, 95 L.Ed.2d 127 (1987), and Roper v. Simmons, 543 U.S. 551, 571, 125 S.Ct.

1183, 161 L.Ed.2d 1 (2005).

{¶92} Because the juvenile court’s decision was unreasonable, arbitrary, and unconscionable in that it completely disregarded the uncontroverted testimony of two

experts without any rational basis grounded in the evidence, I would hold that the

33 OHIO FIRST DISTRICT COURT OF APPEALS

court abused its discretion in requiring that McBride be transferred to the adult system

to face adult sanctions. Accordingly, I respectfully dissent from the portion of the lead

opinion that holds otherwise.

Please note: The court has recorded its own entry on the date of the release of this opinion.