[Cite as State v. Jones, 2013-Ohio-4242.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                    CLARK COUNTY

 STATE OF OHIO                                  :
                                                :     Appellate Case No. 2012-CA-32
          Plaintiff-Appellee                    :
                                                :     Trial Court Case No. 12-CR-14
 v.                                             :
                                                :
 EMANUEL JONES                                  :     (Criminal Appeal from
                                                :     (Common Pleas Court)
          Defendant-Appellant                   :
                                                :
                                            ...........

                                            OPINION

                            Rendered on the 27th day of September, 2013.

                                            ...........

DAVID A. WILSON, Atty. Reg. #0073767, by LISA M. FANNIN, Atty. Reg. #0082337, Clark
County Prosecutor’s Office, 50 East Columbia Street, Post Office Box 1608, Springfield, Ohio
45501
      Attorney for Plaintiff-Appellee

SHERYL A. TRZASKA, Atty. Reg. #0079915, Office of the Ohio Public Defender, 250 East
Broad Street, Suite 1400, Columbus, Ohio 43215
       Attorney for Defendant-Appellant

                                            .............

FAIN, P.J.

        {¶ 1}     Defendant-appellant Emanuel Jones appeals from his conviction and sentence for
                                                                                                  2


Aggravated Robbery, with a firearm specification. Jones contends that the juvenile court abused

its discretion by transferring his case to the general division of the court of common pleas for

criminal prosecution.

        {¶ 2}    We conclude that the juvenile court did not abuse its discretion by transferring

Jones’s case to the general division of the court of common pleas. Accordingly, the judgment of

the trial court is Affirmed.



            I. Jones and Three Other Males Rob a “Drive Thru” and an Individual

        {¶ 3}    In October 2011, Emanuel Jones and three other males arrived at John’s Drive

Thru. At that time, Jones was sixteen years of age. One of the three males with Jones held a

gun to the head of the female employee and demanded that she give him the money in the cash

register. The group of males also turned to a friend of the female employee at the Drive Thru

and demanded his wallet. The man whose wallet was taken later identified Jones as one of the

four robbers.    Evidence retrieved by the police, including the surveillance video from the

robbery, supported the eyewitness identification of Jones as one of the robbers.

                                 II. Course of the Proceedings

        {¶ 4}    Jones was charged, as a juvenile, with two counts of Aggravated Robbery, both

with a firearm specification. The victim of one robbery was the store itself; the victim of the

other was a friend of the sole employee working at the store at the time. The State sought to

have the case transferred to the general division of the common pleas court, to have Jones tried as

an adult.

        {¶ 5}    Jones had a prior record of juvenile delinquency, including Aggravated
                                                                                               3


Menacing, a first-degree misdemeanor; Criminal Mischief, a third-degree misdemeanor; Chronic

Truancy, a minor misdemeanor; and numerous probation violations. He was on probation when

he allegedly committed the Aggravated Robberies in this case.

       {¶ 6}    The juvenile court held a probable cause hearing, and found that there was

probable cause to believe that Jones committed the offenses charged. Next, the court held an

amenability hearing, and found that Jones was not amenable to care or rehabilitation within the

juvenile system, and that the safety of the community may require that Jones be subject to adult

sanctions. The juvenile court transferred the case to the general division.

       {¶ 7}    In the general division of the common pleas court, Jones moved to suppress

evidence, including his identification at a show-up conducted shortly after the robberies. While

the motion to suppress was pending, Jones pled guilty to one count of Aggravated Robbery,

including the firearm specification, and the other count, with its specification, was dismissed.

Jones was sentenced to five years for the Aggravated Robbery and to three years for the firearm

specification, to be served consecutively.

       {¶ 8}    From the judgment of the trial court, Jones appeals.



                     III. The Juvenile Court Did Not Abuse its Discretion

                       by Transferring the Case to the General Division

       {¶ 9}    Jones’s sole assignment of error states:

               THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

       TRANSFERRED THIS CASE FOR CRIMINAL PROSECUTION.                              RC.

       2152.12; FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
                                                                                                  4


       STATES CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE OHIO

       CONSTITUTION.

       {¶ 10} “We review a juvenile court’s relinquishment of jurisdiction in discretionary

bindover proceedings under an abuse of discretion standard.” State v. Flagg, 8th Dist. Cuyahoga

Nos. 93248 and 93279, 2010-Ohio-4247, ¶ 26, citing In re A.J.S., 120 Ohio St.3d 185,

2008-Ohio-5307, 897 N.E.2d 629.          The term “abuse of discretion” has been defined as a

decision that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc., 19

Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985).

       {¶ 11} Jones was subject to discretionary transfer by the juvenile court, because Jones

was “fourteen years of age or older at the time of the act charged,” and he was “charged with an

act that would be a felony if committed by an adult.” R.C. 2152.10(B). In determining whether

to transfer Jones for criminal prosecution, the juvenile court is required to follow the procedures

in R.C. 2152.12. R.C. 2152.10(B).

       {¶ 12} R.C. 2152.12(B) provides that the juvenile court may transfer the case to the

general division 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

       charged.

               (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.
[Cite as State v. Jones, 2013-Ohio-4242.]
        {¶ 13}     In making its decision whether to transfer the case to the general division, the

juvenile court must consider whether the applicable factors under R.C. 2152.12(D) indicating that

the case should be transferred outweigh the applicable factors under R.C. 2152.12(E) indicating

that the case should not be transferred. R.C. 2152.12(B)(3). “The record shall indicate the

specific factors that were applicable and that the court weighed.” Id. “R.C. 2152.12(B)(3) only

requires that the record indicate the specific factors that the court ‘weighed’; it does not require a

written or oral recitation of all statutory factors.” Flagg, 2010-Ohio-4247, at ¶ 28; Juv.R. 30(G).

        {¶ 14} Pursuant to R.C. 2152.12(D), in determining whether to transfer a child to the

general division, “the juvenile court shall consider the following relevant factors, and any other

relevant factors, in favor of a transfer under that division:”

                 (1) The victim of the act charged suffered physical or psychological harm,

        or serious economic harm, as a result of the alleged act.

                 (2) The physical or psychological harm suffered by the victim due to the

        alleged act of the child was exacerbated because of the physical or psychological

        vulnerability or the age of the victim.

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

                 (4) The child allegedly committed the act charged for hire or as a part of a

        gang or other organized criminal activity.

                 (5) The child had a firearm on or about the child's person or under the

        child's control at the time of the act charged, the act charged is not a violation of

        section 2923.12 of the Revised Code, and the child, during the commission of the

        act charged, allegedly used or displayed the firearm, brandished the firearm, or

        indicated that the child possessed a firearm.
[Cite as State v. Jones, 2013-Ohio-4242.]
                  (6) At the time of the act charged, the child was awaiting adjudication or

        disposition as a delinquent child, was under a community control sanction, or was

        on parole for a prior delinquent child adjudication or conviction.

                  (7) The results of any previous juvenile sanctions and programs indicate

        that rehabilitation of the child will not occur in the juvenile system.

                  (8) The child is emotionally, physically, or

                                            psychologically

                                            mature enough for the

                                            transfer.

                  (9) There is not sufficient time to rehabilitate the child within the juvenile

        system.

        {¶ 15} Furthermore, pursuant to R.C. 2152.12(E), in determining whether to transfer a

child to the general division, “the juvenile court shall consider the following relevant factors, and

any other relevant factors, against a transfer under that division:”

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

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

        charged.

                  (3) The child was not the principal actor in the act charged, or, at the time

        of the act charged, the child was under the negative influence or coercion of

        another person.

                  (4) The child did not cause physical harm to any person or property, or

        have reasonable cause to believe that harm of that nature would occur, in allegedly

        committing the act charged.
                                                                                              7


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

               (6) The child is not emotionally, physically, or psychologically mature

       enough for the transfer.

               (7) The child has a mental illness or is a mentally retarded person.

               (8) There is sufficient time to rehabilitate the child within the juvenile

       system and the level of security available in the juvenile system provides a

       reasonable assurance of public safety.

       {¶ 16} In its judgment entry transferring the case to the general division, the juvenile

court found, in part:

               THE COURT FURTHER FINDS that it must consider the factors for and

       against, transfer as set forth in Revised Code Section 2152.12.

               THE COURT FURTHER FINDS the youth has failed to successfully

       complete the many attempts at rehabilitation offered to him in the past. He was

       sent to David L. Brown Youth Center for programming and assistance.              He

       received various community based services before he was removed from our

       community. He has failed to assimilate the information offered to him. He

       continues to have difficulty with the use of illegal drugs. He continues to have

       significant anti-social behavior and is dangerous.

               THE COURT FURTHER FINDS that the youth has gained limited insight

       from the previous programming offered to him. He has thoughts, feelings and

       attitudes toward authority and towards himself, that are not healthy or appropriate.

        He thinks of himself as a victim and blames those around him for his problems
                                                                                               8


       and failures. He expresses no genuine interest in changing his behavior, his

       attitude or his values.

               THE COURT FURTHER FINDS that the youth is a high risk to re-offend.

        He exhibits significant aggressive behavior. He is anti-social and disrespectful

       in everyway.       He has an extensive history of aggression and disrespectful

       behavior in various settings including school, community, and rehabilitation

       settings.

               THE COURT FURTHER FINDS that the results of previous juvenile

       sanctions and programs show that this youth cannot be rehabilitated within the

       juvenile system. He is further emotionally, physically and psychologically mature

       enough for transfer.

               THE COURT FURTHER FINDS that there is not sufficient time for

       rehabilitation of the juvenile in the juvenile system. In fact the court does not

       find that the youth can be rehabilitated within the juvenile system.

               THE COURT FURTHER FINDS that at the time the youth committed the

       offenses in the complaints that he was on probation with the court for prior

       delinquent acts.

               THE COURT FURTHER FINDS that at the time the youth committed the

       delinquent offense in this matter he did so, as part of a gang or other organized

       criminal activity.

       {¶ 17} There was only one witness at the amenability hearing, Dr. Daniel Hrinko. Dr.

Hrinko was a neutral witness, called by the court. Dr. Hirko testified regarding his examination
                                                                                                  9


of Jones and his review of Jones’s social, family, and legal histories. He summarized Jones’s

past legal and drug problems as follows:

               [Jones] has a history of many misdemeanor offenses with expectations of

       probation and other similar requirements. He has an extensive history of failing

       to comply with those, being violating electronic monitoring, failing to comply

       with the rules of and expectations of probation and other similar things. I believe

       there had been some positive drug tests at various points in time, and other

       behaviors that would suggest that he has a general disregard for what’s expected

       by the court.

Tr. 18-19.

       {¶ 18} According to Dr. Hrinko, Jones has a history of exercising very poor judgment,

views himself as a victim, and fails to recognize the intensity and gravity of situational problems

that Jones has created. Id. at 19-20. Dr. Hrinko noted that Jones showed no evidence of

recognizing the importance or benefit of engaging in mental health or substance abuse treatment.

Id. at 30. Jones admitted during his examination with Dr. Hrinko that Jones believed counselors

were easy to manipulate. Id. at 18. According to Dr. Hrinko, Jones has a moderately high

probability of continuing his aggressive behavior. Id. at 27, 29-32.

       {¶ 19} Dr. Hrinko opined that it was possible that Jones could have success within the

juvenile system if he had a lengthy, controlled, and structured environment.            Id. at 36.

However, Dr. Hrinko was less than confident that this success was probable, concluding that:

               I believe that the juvenile system, in the totality of what’s available, that

       there are a limited number of possibilities that, in my opinion, might prove helpful
                                                                                                  10


       to rehabilitating [Jones].

                ***

                The attitudes and insight and self perception that I saw as of the time of the

       evaluation, should those attitudes, levels of insight persist throughout the

       placement in such a program, then I am pessimistic that such a program would

       have the desired outcome. But I’m also aware of the fact that many programs are

       very skilled at helping individuals who maintain those attitudes begin to recognize

       the importance of shifting those attitudes, and thereby increasing the probability of

       benefitting from those programs.

Id. at 38-40.

       {¶ 20} The juvenile court noted several of the key factors in R.C. 2152.12(D) weighing

in favor of bindover. The court thoroughly considered the statutory factors at R.C. 2152.12(D)

and (E), and the psychological examination of Jones performed by Dr. Hrinko in making its

bindover determination. As the record demonstrates, Jones has failed to take advantage of the

many opportunities previously presented to him in the juvenile justice system and continues to

see himself as a victim. Furthermore, Jones has a moderately high probability of continuing to

demonstrate aggressive behavior. Based on the record before us, we conclude that the juvenile

court did not abuse its discretion in transferring Jones’s case to the general division of the court

of common pleas for criminal prosecution.

       {¶ 21} Jones’s sole assignment of error is overruled.



                                          IV. Conclusion
                                                                                             11


       {¶ 22} Jones’s sole assignment of error having been overruled, the judgment of the trial

court is Affirmed.

                                       .............

HALL and WELBAUM, JJ., concur.

Copies mailed to:

David A. Wilson
Lisa Fannin
Sheryl A. Trzaska
Hon. Richard J. O’Neill
