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In re B.W.

Court of Appeals of Ohio, Seventh District, Mahoning

December 21, 2017


         Civil Appeal from the Court of Common Pleas, Juvenile Division of Mahoning County

          For Plaintiff-Appellant: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellee: Atty. Rhonda G. Santha

          Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Cheryl L. Waite


          ROBB, P.J.

         {¶1} The State of Ohio appeals the decision of the Mahoning County Common Pleas Court, Juvenile Division, dismissing the murder complaint filed against Juvenile-Appellee B.W. As he was 16 years old, Appellee was subject to mandatory transfer to the general division if the juvenile court found probable cause to believe he committed the offense. The probable cause hearing was held jointly with the co-defendant. The juvenile court found the state failed to establish probable cause to believe Appellee committed murder. In evaluating probable cause in the case against Appellee, the juvenile court refused to consider the detective's testimony on what the co-defendant told him and the co-defendant's video statement. For the following reasons, we conclude the state presented sufficient credible evidence of probable cause. The juvenile court's judgment dismissing the complaint is reversed, and the case is remanded with instructions to issue a mandatory transfer order.


         {¶2} On July 31, 2015, a delinquency complaint was filed in juvenile court against Appellee alleging he purposely caused the death of Jarell Brown on July 26, 2015, which constitutes the offense of murder in violation of R.C. 2903.02. A firearm specification was attached to the charge. As the charge was murder and Appellee was sixteen at the time of the offense, he was subject to mandatory transfer to the general division of the common pleas court if there was probable cause to believe he committed the act charged. In accordance, the state filed a motion to relinquish jurisdiction asking the court to conduct a transfer hearing. The probable cause hearing commenced on various dates due to a witness's failure to appear and refusal to testify, even after a material witness warrant was issued and immunity was granted. The hearings proceeded jointly with co-defendant J.J. who was also charged with murder for the victim's death. J.J. was fourteen years old on the day of the offense.

         {¶3} The medical examiner testified he observed the body of the eighteen-year-old victim at the scene. The body was lying in a puddle of water on Indianola Avenue approximately 100 yards west of Market Street. (Tr. 10). The victim suffered a single gunshot wound; the bullet entered the victim's upper back and exited his neck. (Tr. 11). The shot was not fired by a shotgun or an assault rifle. (Tr. 22). The medical examiner opined the victim could have been able to run for up to "a minute or so" upon suffering the wound, after which he would have been incapacitated until he died three to four minutes later. (Tr. 19-20).

         {¶4} Detective Spotleson testified the victim's body was found on the side of the road at 27 West Indianola Avenue in front of a fabrication business. (Tr. 52, 58). A man driving down the road saw the body and called the police. (Tr. 52). Firemen from the nearby fire station walked to the scene to report they heard three shots just before the police dispatch. (Tr. 53). Upon noticing undisturbed gravel near the body, the detective concluded the victim had not been thrown from a vehicle. (Tr. 52). The victim's brother told the detective the victim would have been carrying money and a 9mm firearm. (Tr. 54). The police found $30 in the victim's wallet but recovered no gun from the scene. (Tr. 55).

         {¶5} The detective explained how he discovered where to look for video evidence showing the victim's movements. A witness reported he saw three males enter a beverage store on Market Street and then saw them walk a few blocks north to Hylda Avenue. One of the three individuals was wearing a red sweatshirt, which was the color of the sweatshirt the victim was wearing. (Tr. 55-56). This witness heard what he perceived as fireworks and soon noticed police at the scene on Indianola.

         {¶6} The detective retraced the reported path and collected videos along the way, which established his timeline. (St. Ex. 4). He created photographic still shots from the videos. (St. Ex. 5-15). A 9:50 p.m. video from the front of a jewelry store facing Market Street showed a person (said to be Appellee) walking south on Market Street; he was wearing dark pants, a white t-shirt, and white shoes. (St. Ex. 5). A 9:56 p.m. video from the same business showed two people (said to be J.J. and the victim) walking south on Market Street: one was wearing dark shorts or pants, a long-sleeved red shirt or jacket, and white shoes; and one was wearing white shorts, a dark long-sleeved shirt or jacket, and white shoes. (St. Ex. 6).

         {¶7} A video from a beverage store further south on Market Street showed Appellee, J.J., and the victim entering the store together and buying items. Appellee purchased a drink and the victim purchased cigar products. (St. Ex. 4, 10:02-10:04 p.m., Chan. 1, 4). A 10:02 p.m. still shot from this video showed J.J. and the victim entering the business. (St. Ex. 7-8); (Tr. 61-62). A 10:03 p.m. still shot showed Appellee with the victim and J.J. during the purchase of the products. (St. Ex. 9-11); (Tr. 63). The three individuals were clearly portrayed in this evidence, and juvenile officers were able to provide the detective with their names. (Tr. 70-71). The detective identified Appellee and J.J. in court. (Tr. 71). The beverage store video showed: Appellee wearing dark pants or jeans, a white T-shirt, and white shoes; J.J. wearing white shorts, a dark sweatshirt, and white shoes; and the victim wearing a red sweatshirt, dark shorts, and white shoes. (St. Ex. 9-11). Their attire matched that worn by the individuals walking in the direction of the beverage store in the minutes-earlier jewelry store video.

         {¶8} At 10:08 p.m., the video from the front of the jewelry store showed three individuals walking north on Market Street (from the direction of the beverage store). (St. Ex. 12); (Tr. 65). The attire of these individuals matched that worn by Appellee, J.J., and the victim five minutes earlier. A 10:09 p.m. video from the side of the jewelry store showed the three individuals had turned left off of Market Street and onto West Hylda Avenue. (St. Ex. 13); (Tr. 65-66). In this video, the back of the heads and hair of the individuals can be seen in addition to the clothing (for purposes of comparison with the beverage store video). The victim was walking in front with Appellee and J.J. following him. Just prior to walking out of camera range, the three individuals moved from the sidewalk to the street as if starting to cross West Hylda Avenue. (St. Ex. 13-14); (Tr. 66-67).

         {¶9} Crossing West Hylda Avenue from their position one would encounter an alley connecting West Hylda to Indianola Avenue. The alley runs along the side of the fabrication business, and it outlets where the victim's body was found. (Tr. 66- 67). In this alley, the detective found a 9mm shell casing. (Tr. 56). Near the shell casing, the detective found a cigar and cigar wrappers, whose serial numbers matched those sold to the victim at the beverage store. (Tr. 56-57, 119). The beverage store tracked the sale of the products on the cash register and found it matched the time on the video showing Appellee, J.J., and the victim at the cash register. (Tr. 57).

         {¶10} A video was also recovered from the fabrication business showing a male who "appears to be the victim" running down the alley toward Indianola. (St. Ex. 15); (Tr. 57, 68). The timestamp on the video was 10:08 p.m., but the detective ascertained the clock on that camera was set seven or eight minutes behind, meaning it portrayed the victim running at 10:15 or 10:16 p.m. (Tr. 68-69). In concluding this portrayed the last moments of the victim's life, the detective noted the police were called and officers arrived within minutes of the shooting. (Tr. 112, 128). The evidence suggested to the detective that Appellee and J.J. were with the victim in the alley in the minutes before his death.

         {¶11} The detective also testified about his interview of J.J. occurring on August 4, 2015, which was preserved on video. (St. Ex. 2-3). J.J. was read his rights and signed a Miranda rights form. (St. Ex. 16). The detective testified J.J. said he, the victim, and Appellee went to a friend's house on Princeton Avenue but this friend asked them to leave because he had issues with the victim; this friend was the material witness who refused to testify. (Tr. 76-77). J.J. initially told the detective the victim left the house in a blue car. (Tr. 77). When the detective mentioned he saw J.J. with the victim in a video from the beverage store, J.J. changed the story to say: a car pulled up after they left the store; the victim said he was going to rob the "weed man"; the victim produced a gun but was shot in the back of the head by the car's passenger; and the victim ran one way while J.J. ran the opposite way. (Tr. 78).

         {¶12} The detective told J.J. there was no car in the jewelry store's video, and J.J. then declared: he, Appellee, and the victim left the store, walked north on Market Street to Hylda, and turned into the alley; Appellee relieved himself in the alley; the victim handed his gun to Appellee so the victim could roll a joint; Appellee told J.J. he was going to shoot the victim because he was a snitch; Appellee walked up behind the victim and fired the gun at him; J.J. believed the shot hit the victim in the head; Appellee tried to shoot the victim again but the gun did not fire; Appellee pulled J.J. by the back of the shirt, and they ran south down the alley back toward Hylda; the victim ran north up the alley toward Indianola; and they eventually went back to their friend's house, where Appellee brandished a 9mm and bragged about shooting the victim. (Tr. 79-81). J.J. made all three statements within the first 30 minutes of his interview, repeating the final story after a break. (St. Ex. 2).

         {¶13} There was no objection to this testimony as it was presented. The final day of the probable cause hearing was held on March 15, 2017, nearly a year after this testimony.[1] When a request for a continuance was denied, the state rested pending admission of its exhibits. At this point, Appellee objected to the exhibits containing J.J.'s statement and the signed Miranda rights form. (Tr. 212). It was argued J.J.'s statements, although admissible against J.J. as his own statements, were not admissible against Appellee. (Tr. 212-213). The state disagreed, and the court held a discussion off the record.

         {¶14} The juvenile court thereafter sustained Appellee's objection so J.J.'s statement would not be considered as evidence of probable cause in the case against Appellee but would be considered in the case against J.J. (Tr. 215- 217). In closing, Appellee's attorney argued that, without the statements of J.J. or the friend previously held as a material witness, there was no evidence Appellee committed murder.

          {¶15} The juvenile court agreed and dismissed the charge against Appellee.[2]The court said the dismissal was without prejudice as the complaint could be refiled if the state found more evidence or secured the testimony of the missing witness. (Tr. 233). In a March 16, 2017 judgment entry, the juvenile court memorialized its decision to dismiss the complaint without prejudice and found "the State failed to carry its burden of proof and did not establish probable cause to believe that the Subject Child committed an act that would be a felony, if committed by an adult"[3]The state filed a timely notice of appeal from the dismissal of the complaint, and briefing was completed on October 20, 2017.

         {¶16} In reviewing appealability, the state cites R.C. 2945.67(A), which provides: "A prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case, or any decision of a juvenile court in a delinquency case, which decision grants a motion to dismiss all or any part of an indictment, complaint, or information * * *." The state may appeal as a matter of right from the dismissal of an indictment regardless of whether the dismissal is with or without prejudice. State v. Craig,116 Ohio St.3d 135, 2007-Ohio-5752, 876 N.E.2d 957, ¶ 16. "[T]he order of a juvenile court denying a motion for mandatory bindover bars the state from prosecuting a juvenile offender as an adult for a criminal offense. It therefore is the functional equivalent of a dismissal of a criminal indictment and constitutes a final order from which the state may appeal as a matter of right." In re A.J.S.,120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 1. See also In re S.J.,106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ΒΆ 12-13 (juvenile court's sua sponte dismissal of one murder charge and amendment of another to voluntary manslaughter, after finding a lack of probable cause for murder, was equivalent to granting a motion to dismiss under R.C. 2945.67(A) from which the state could ...

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