[Cite as In re R.N.,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

In re R.N. Court of Appeals No. L-17-1301

Trial Court No. JC 17261375

DECISION AND JUDGMENT

Decided: December 14, 2018

*****

Laurel A. Kendall, for appellant.

Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

*****

OSOWIK, J.

Introduction

{¶ 1} This appeal concerns a juvenile offender, R.N., who pled no contest to

attempted murder with a firearm specification and aggravated robbery. The Lucas County Court of Common Pleas, General Division, accepted the plea, found R.N. guilty

and sentenced him to 13 years in prison. On appeal, R.N. challenges the juvenile court’s

probable causing finding to support the charges and its decision to transfer him from the

juvenile court to the general division. As set forth below, we affirm.

Facts and Procedural History

{¶ 2} On March 17, 2017, the state filed two complaints in the Lucas County

Juvenile Court charging that, on August 23, 2016, R.N., aged 17, committed attempted

murder, in violation of R.C. 2903.02(A) and aggravated robbery, in violation of R.C.

2911.01. Both complaints included accompanying firearm specifications under R.C.

2941.145.

{¶ 3} The acts charged were felonies, if committed by an adult, with attempted

murder being a “category one” offense and aggravated robbery being a “category two”

offense. R.C. 2152.02(AA) and (BB). The allegation that R.N. committed a category

one offense at the age of 17 subjected him to the mandatory transfer of his case from the

juvenile court to the adult court for criminal prosecution. See R.C. 2152.12(A)(1)(a)(i)

and 2152.10(A)(1)(a). Likewise, the allegation that R.N. committed a category two

offense with a firearm, at the age of 17, also subjected him to mandatory transfer. R.C.

2152.12(A)(1)(b)(ii) and 2152.10(A)(2)(b).

{¶ 4} On March 22, 2017, the state filed a motion for mandatory transfer of

jurisdiction to the general division. It also filed a motion for discretionary transfer,

pursuant to R.C. 2152.12(B). The reason for the latter motion was because the Ohio

2. Supreme Court had recently decided, on December 22, 2016, that “[t]he mandatory

transfer of juveniles to adult court violates juveniles’ right to due process.” State v.

Aalim,

,

,

, paragraph one of the

syllabus (“Aalim I”). The state sought reconsideration of Aalim I, and the high court later

stayed execution of it. Therefore, the state, in the instant case, requested that the juvenile

court proceed under the discretionary transfer provisions but to grant it leave to proceed

under the mandatory transfer provisions, depending on the outcome of the state’s motion

for reconsideration in Aalim I. The juvenile court agreed and, consistent with that plan,

ordered an investigation for the purpose of determining whether R.N. was amenable to

rehabilitation within the juvenile justice system pursuant to the discretionary transfer

statute, R.C. 2152.12(B).

{¶ 5} In the interim, on April 24, 2017, the juvenile court held a probable cause

hearing. The victim testified that, on August 23, 2016, he was attacked by two males on

the enclosed, front porch of his home, located on Detroit Avenue, in Toledo. The victim

recognized the two “kids” from the neighborhood, but he did not know either by name at

the time. According to the victim, R.N. pulled out a gun, and when the victim tried to

grab it, R.N. shot him. After the gun “went off,” R.N. and his accomplice “started asking

me what I got. And I [asked] am I supposed to give you something when you shot me?

And [R.N.] shot me again.” In all, R.N. shot the victim five times (kneecap, twice in the

arm, chest, and face), while his accomplice “ransacked” the house. The victim heard

R.N. and the accomplice call for a third intruder, named “G”, to enter from the back of

3. the house, but the victim never saw “G.” After the fifth gunshot to his mouth, the victim

“played dead [a]nd they went through the house and [then] they left” out the back door.

Incredibly, the victim was able to get himself next door, where his sister-in-law lives, and

he was taken to the hospital.

{¶ 6} Toledo Police Detective Raynard Cooper testified that he had a “quick

conversation” with the victim on the night of the shootings but that he was nearly

“inaudible” and that hospital staff had to “hold * * * part of his face in order for him to

talk.” Cooper testified that he thought the victim “mentioned that a G shot him,” but he

also testified he “couldn’t understand what [the victim] was saying.” Cooper returned to

the hospital a couple of days later. At that time, the victim described the house where he

thought the intruder lived who had accompanied R.N., i.e. the one who broke into his

front porch with R.N., not “G.” From that information, Cooper identified a potential

suspect, X.A. and developed a photo array. When shown the array, the victim identified

X.A. as one of the assailants “without hesitation.” The police then arrested X.A., who

confessed to his role in the robbery and identified R.N. as the shooter. Another photo

array was created, that included R.N. According to Cooper, when it was shown to the

victim, he “jumped up and said, ‘[t]hat’s the chump right here, Cooper.’” A warrant was

issued for R.N.’s arrest. At the conclusion of the probable cause hearing, the court found

that there was probable cause to believe that R.N. committed the acts charged and that

said acts would be felonies if committed by an adult.

4. {¶ 7} On May 25, 2017, the Ohio Supreme Court reconsidered, and overturned

Aalim I. It found that Aalim I “usurped the General Assembly’s exclusive constitutional

authority to define the jurisdiction of the courts of common pleas by impermissibly

allowing a juvenile-division judge discretion to veto the legislature’s grant of jurisdiction

to the general division of a court of common pleas over this limited class of juvenile

offenders.” State v. Aalim,

,

,

, ¶ 3

(“Aalim II”).

{¶ 8} In light of Aalim II, the state in this case refiled its motion for a mandatory

transfer to the general division of the common pleas court. Following a hearing, the

court juvenile found the state’s motion well-taken and transferred the case on June 20,

2017.

{¶ 9} On July 14, 2017, R.N. was indicted for attempted murder, in violation of

R.C. 2923.02, 2903.02(A), and R.C. 2929.02; aggravated robbery, in violation of R.C.

2911.01(A)(1) and (C); aggravated burglary, in violation of R.C. 2911.11(A)(1) and (B);

and felonious assault, in violation of R.C. 2903.11(A)(2) and (D). Each count included a

firearm specification, pursuant to R.C. 2941.145(A), (B), (C), and (F). R.N. was

appointed trial counsel and pled not guilty.

{¶ 10} On November 21, 2017, R.N. pled no contest to attempted murder, the

firearm specification for attempted murder, and aggravated robbery. The remaining

charges were dismissed. The trial court accepted the plea, found R.N. guilty, and ordered

a presentence investigation and report. On December 13, 2017, the trial court sentenced

5. R.N. to 13 years in prison, five years for attempted murder, five years for aggravated

robbery and three years for the gun specification, all of which were ordered to be served

consecutively to one another.

{¶ 11} Through appointed appellate counsel, R.N. raises two assignments of error:

I. The court’s finding of probable cause was against the manifest

weight of the evidence.

II. The court abused its discretion when it transferred jurisdiction

of this matter to Lucas County Court of Common Pleas, General Division

for criminal prosecution of appellant as an adult.

Probable Cause

{¶ 12} In his first assignment of error, R.N. asserts that the juvenile court’s

probable cause finding was “against the manifest weight of the evidence.”

{¶ 13} R.C. 2152.12(A)(1) requires the juvenile court to hold a hearing prior to a

mandatory transfer to determine if “there is probable cause to believe that the child

committed the act charged.” In establishing probable cause, the state “must provide

credible evidence of every element of an offense before ordering mandatory waiver of

juvenile court jurisdiction.” State v. Iacona,

,

(2001). The standard requires “more than a mere suspicion of guilt but [less than

establishing] guilt beyond a reasonable doubt.”

On review of a bindover proceeding,

this court defers to the trial court’s factual determinations but reviews the probable cause

6. determination, a question of law, de novo. See In re A.J.S.,

, 2008-

Ohio-5307,

.

{¶ 14} In the present case, R.N., who stipulated that he was 17 years old at the

time of the offenses, was alleged to have committed attempted murder and aggravated

robbery, plus firearm specifications. “The offense of attempted murder requires that

appellant attempted to purposely cause the death of another. R.C. 2903.02(A).” State v.

Winters, 6th Dist. Lucas No. L-12-1041,

, ¶ 48, 51 (Probable cause

found where the evidence established that the shooter first put a gun to the victim’s head

and then, while they were “still close together to infer that the shooter was attempting to

murder him,” fired multiple shots, two of which hit the victim.). The firearm

specification attaches if “the offender had a firearm on or about the offender’s person or

under the offender’s control while committing the offense and displayed the firearm,

brandished the firearm, indicated that the offender possessed the firearm, or used it to

facilitate the offense.” R.C. 2941.145(A).

{¶ 15} Aggravated robbery, under R.C. 2911.01(A)(1), provides that “[n]o person,

in attempting or committing a theft offense, * * * or in fleeing immediately after the

attempt or offense, shall * * * 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.”

{¶ 16} Here, R.N. questions the reliability of the victim’s testimony because the

victim provided “disparate” statements to the police, at first identifying “G” as the

7. shooter and, a few days later, identifying R.N. R.N.’s characterization of the evidence is

based entirely on the initial report by Detective Cooper, who testified that he thought the

victim identified “G” as the shooter but could not be sure because the victim was nearly

incomprehensible having been shot in the mouth. Moreover, the victim’s testimony was

unequivocal. He testified (1) that only R.N. had a gun; (2) that “[t]here is no doubt in my

mind [that R.N.] shot me all five times;” and (3) that he never saw “G.” Even if the

defendant puts forth some alternate theory of the crime, it is not the state’s burden to

disprove such an alternate theory. “That question [is] reserved for ultimate adjudication

by the trier-of-fact at trial in the general division of the common pleas court.” State v.

Hairston, 10th Dist. Franklin No. 08AP-735,

, ¶ 19.

{¶ 17} R.N. also complains that no physical evidence was proffered at the

probable cause hearing to tie him to the crimes, such as the weapon, shell casings or

fingerprint evidence. The state was not required to present evidence of guilt beyond a

reasonable doubt, however. That there was some evidence to dispute the state’s

contention that R.N. was the shooter, does not negate a probable cause finding.

(“Determination of the merits of the competing prosecution and defense theories, both

of which were credible, ultimately was a matter for a factfinder at trial.”).

{¶ 18} We find that there was credible evidence presented at the hearing to

establish (1) that R.N. purposely attempted to cause the victim’s death with a firearm and

(2) that R.N. personally used a firearm while committing a theft offense. Accordingly,

8. we affirm the juvenile court’s probable cause finding to support the charges and the gun

specifications. R.N.’s first assignment of error is not well-taken.

{¶ 19} In his second assignment of error, R.N. argues that he was only subject to a

mandatory transfer of jurisdiction “if there [was] probable cause to believe that he

committed the offenses.” (Emphasis in the original.) R.N. concedes that if this court

sustains the juvenile court’s probable cause finding under the first assignment of error,

then the transfer of jurisdiction under R.C .2152.12 was proper. In light of our decision

to affirm the juvenile court’s probable cause finding, we find that R.N.’s second

assignment of error is not well-taken.

{¶ 20} For the reasons expressed above, the June 20, 2017 judgment of the Lucas

County Court of Common Pleas, Juvenile Division, and the December 13, 2017 judgment

of the General Division are affirmed. R.N. is ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgments affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Christine E. Mayle, P.J. JUDGE CONCUR. _______________________________ JUDGE

9. This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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