[Cite as In re B.W., 2017-Ohio-9220.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT




IN THE MATTER OF:                             )    CASE NO. 17 MA 0071
                                              )
        B.W.                                  )    OPINION
                                              )
                                              )
                                              )


CHARACTER OF PROCEEDINGS:                          Civil Appeal from the Court of Common
                                                   Pleas, Juvenile Division of Mahoning
                                                   County, Ohio
                                                   Case No. 15 JA 978

JUDGMENT:                                          Reversed and Remanded.

APPEARANCES:

For Plaintiff-Appellant:                           Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman St., 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellee:                            Atty. Rhonda G. Santha
                                                   6401 State Route 534
                                                   West Farmington, Ohio 44491


JUDGES:

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


                                                   Dated: December 21, 2017
-2-
[Cite as In re B.W., 2017-Ohio-9220.]
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.
                                 STATEMENT OF THE CASE
         {¶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
                                                                                   -2-

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
                                                                                    -3-

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-
                                                                                        -4-

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
                                                                                                       -5-

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.



1 As aforementioned, the probable cause hearing commenced on various dates due to issues with a
material witness, who fled after he was granted immunity and released on the material witness
warrant. The witness was interviewed by the detective on video; after initially saying the victim left his
house in a blue car, this witness subsequently said he heard Appellee make incriminating statements
at his house before and after the shooting. (St. Ex. 17-18). Appellee objected to the use of the
witness’s out-of-court statement, arguing there was no corroboration to show truthworthiness under
the statement against interest hearsay exception. The juvenile court found this statement was barred
by the confrontation clause and would not satisfy the declaration against interest hearsay exception in
Evid.R. 804(B)(3) as there were no corroborating circumstances indicating truthworthiness. (9/26/16
J.E.) The court suggested it could not use J.J.’s statement as corroboration. (Tr. 154-157).
                                                                                                     -6-

        {¶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, ¶ 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


2In J.J.’s case, the court found probable cause (on the basis of complicity) and set the matter for an
amenability hearing, as his younger age made bindover discretionary. (Tr. 233).

3The entry mistakenly stated, “Exhibits 1 through 16 were excluded on the within matter.” There was
no objection to St. Ex. 1 (the coroner’s packet introduced during the medical examiner’s testimony) or
St. Ex. 4-15 (the video evidence). As to these exhibits, the court stated, “[t]he state has provided
copies of the originals that are now accepted and admitted into evidence.” (Tr. 215, 217).
                                                                                                        -7-

appeal as of right). Here, Appellee moved the juvenile court to dismiss the case
against him at the probable cause hearing. (Tr. 226). The court found the state
failed to present evidence of probable cause and dismissed the complaint, making
the decision appealable by the state as a matter of right under R.C. 2945.67(A).
        GENERAL LAW ON PROBABLE CAUSE HEARING FOR BINDOVER
        {¶17} Juv.R. 30(B) provides:             “Mandatory Transfer.           In any proceeding in
which transfer of a case for criminal prosecution is required by statute upon a finding
of probable cause, the order of transfer shall be entered upon a finding of probable
cause.” The pertinent portion of the statute provides a juvenile court “shall transfer” a
case after a complaint is filed alleging the child committed murder if the child was
sixteen or seventeen years of age at the time of the act charged “and there is
probable cause to believe that the child committed the act charged.”                                  R.C.
2152.12(A)(1)(a)(i).4 The hearing held upon a request for mandatory transfer of a
juvenile has been called a mandatory bindover hearing, a mandatory transfer
hearing, a probable cause hearing, and a preliminary hearing. Juv.R. 30(A) provides:
“Preliminary Hearing. In any proceeding where the court considers the transfer of a
case for criminal prosecution, the court shall hold a preliminary hearing to determine
if there is probable cause to believe that the child committed the act alleged and that
the act would be an offense if committed by an adult.”
        {¶18} At this preliminary hearing, the juvenile court’s function is not to
determine whether the juvenile is guilty of the charge but is to determine whether
there is probable cause to believe the juvenile is guilty. State v. Iacona, 93 Ohio
St.3d 83, 93, 752 N.E.2d 937 (2001).                  A probable cause hearing held before a
juvenile court’s transfer to adult court is a preliminary, non-adjudicatory proceeding
as it does not determine whether the juvenile was delinquent. See, e.g., Breed v.
Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), fn. 18 (a simple hearing
to determine if there is probable cause for the offense charged in order to transfer a


4In a discretionary transfer case where the court finds probable cause, the case must be continued for
an amenability hearing after a full investigation. Juv.R. 30(C). If the court decides to retain jurisdiction
after the amenability hearing, it shall set the proceedings for the hearing “on the merits.” Juv.R. 30(E).
                                                                                      -8-

juvenile to another court to be tried as an adult is not an adjudication; if the bindover
hearing required proof of guilt, it would be adjudicatory and further criminal
proceedings could not thereafter occur due to double jeopardy); State v. Carmichael,
35 Ohio St.2d 1, 7-8, 298 N.E.2d 568 (1973) (amenability decision where hearing
proceeded simultaneously with probable cause hearing in a pre-rules case).
       {¶19} In general, a preliminary hearing prevents the continued detention of a
person when there is no evidence of his connection to an offense; the purpose “is not
to hear all the evidence and determine the guilt or innocence of the accused but
rather to determine whether sufficient evidence exists to warrant binding the accused
over to the grand jury, where, after a more thorough investigation of the evidence, it
is then determined whether a formal charge shall be made against the accused.”
State v. Minamyer, 12 Ohio St.2d 67, 69, 232 N.E.2d 401 (1967).             Likewise, “a
mandatory-bindover hearing in the juvenile court is ancillary to grand jury
proceedings and to adult criminal prosecution.” A.J.S., 120 Ohio St.3d 185 at ¶ 23.
       {¶20} To establish probable cause, the state has the burden to provide
“sufficient credible evidence” on the elements to warrant going forward with the
charge. A.J.S., 120 Ohio St.3d 185 at ¶ 46, 52; Iacona, 93 Ohio St.3d at 93. The
state must produce evidence that raises “more than a mere suspicion of guilt” but
need not produce evidence proving guilt beyond a reasonable doubt. A.J.S., 120
Ohio St.3d 185 at ¶ 41, quoting Iacona, 93 Ohio St.3d at 93. Underlying “all the
definitions” of probable cause is “a reasonable ground for belief of guilt.” Brinegar v.
United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). “[A]s the
very name implies, we deal with probabilities.” Id. at 174-175. Probable cause is a
flexible concept grounded in fair probabilities which can be gleaned from considering
the totality of the circumstances. See Iacona, 93 Ohio St.3d at 93. See also Texas
v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (probable cause
is a flexible, common-sense standard which does not demand any showing that the
belief is correct or more likely true than false).
       {¶21} There is a mixed standard of review applied to a juvenile court’s
probable cause determination at a mandatory transfer proceeding. A.J.S., 120 Ohio
                                                                                          -9-

St.3d 185 at ¶ 51. In general, a reviewing court defers to a trial court’s factual
determinations on credibility and in doing so applies an abuse of discretion standard
of review. Id. at ¶ 1, 51. Nevertheless, the evidence presented at the probable
cause hearing “does not have to be unassailable” to qualify as credible. Id. at ¶ 46;
Iacona, 93 Ohio St.3d at 93. Although the juvenile court can evaluate the quality of
evidence presented in support of probable cause, the juvenile court “is not permitted
to exceed the limited scope of the bindover hearing or to assume the role of the
ultimate fact-finder.” A.J.S., 120 Ohio St.3d 185 at ¶ 43-44. “Obviously, the state
has no burden to disprove alternate theories of the case at a bindover proceeding.”
Id. at ¶ 61. “Determination of the merits of the competing prosecution and defense
theories, both of which [are] credible, ultimately [is] a matter for the factfinder at trial.”
(Emphasis original.) Id. at ¶ 43, quoting Iacona, 93 Ohio St.3d at 96.
       {¶22} Furthermore, the sufficiency of the evidence, presented by the state at
the preliminary hearing held prior to a juvenile transfer, involves a legal question to
be independently reviewed with no deference given to the decision of the juvenile
court. Id. at ¶ 47, 51, citing, e.g., State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541.     “[W]hether the state has produced sufficient evidence to support a
finding of probable cause in a mandatory-bindover proceeding is a question of law,
and we review questions of law de novo.” Id. at ¶ 47.
       {¶23} In A.J.S., the state appealed the juvenile court’s denial of mandatory
transfer in an attempted murder case. As the juvenile court made no factual findings
in its entry denying mandatory transfer, the Supreme Court considered the court’s
statements on the record. Id. at ¶ 56. In finding the juvenile court was required to
transfer the case, the Supreme Court pointed to three errors. First, the juvenile court
abused its discretion in failing to consider all the evidence presented by the state at
the probable cause hearing. Id. at ¶ 57, 59 (the court could not recall testimony on
the location of each person when the juvenile began shooting). Second, the juvenile
court “exceeded the scope of its review of the evidence when it weighed the
conflicting evidence regarding the trajectory of the bullets * * *.” Id. at ¶ 60. Third,
the juvenile court improperly raised the burden by observing the state failed to “make
                                                                                       -10-

the case if it’s possible or not” the bullets ricocheted (where a friend testified the
juvenile only fired at the ground). Id. at ¶ 6, 60-62.
       {¶24} The Supreme Court reviewed the transcript and found sufficient
evidence of probable cause, noting:        “It is true that some of the evidence could
support a determination that A.J.S. fired his gun into the ground to scare the victims,
rather than firing with the purpose to kill them.”       Id. at ¶ 63-64.    However, “the
resolution of conflicting theories of evidence, both of which are credible, is a matter
for the trier of fact at a trial on the merits of the case, not a matter for the exercise of
judicial discretion at a bindover hearing in the juvenile court.” (Emphasis added.) Id.
at ¶ 64. Upon affirming the appellate court’s decision reversing the juvenile court, the
Supreme Court remanded to the juvenile court with instructions to transfer the case
to the general division of the common pleas court. Id. at ¶ 65.
                             ASSIGNMENT OF ERROR
       {¶25} The state’s assignment of error provides:
       “THE JUVENILE COURT ERRED WHEN IT CONCLUDED THAT THE STATE
FAILED TO PRESENT SUFFICIENT CREDIBLE EVIDENCE TO DEMONSTRATE
PROBABLE CAUSE TO BELIEVE THAT [B.W.] PURPOSELY CAUSED OR AIDED
ANOTHER IN CAUSING THE DEATH OF JARELL BROWN.”
       {¶26} The state suggests the juvenile court improperly assumed the role of
the ultimate fact-finder or determined the merits of competing credible theories which
task is reserved for the jury (or the judge in a bench trial) at the trial stage of the
proceedings. In underscoring the limited scope of the juvenile court’s function at the
mandatory bindover hearing, the state emphasizes how it is merely required to set
forth sufficient credible evidence showing there is probable cause supporting the
elements of the pertinent offense. Appellee was charged with murder under R.C.
2903.02(A), which has the elements of purposely causing the death of another.
       {¶27} The state emphasizes the important role of circumstantial evidence and
reasonable inferences in an ultimate trial, let alone at a probable cause hearing.
Intent can be ascertained from the surrounding facts and circumstances, and
circumstantial evidence inherently has the same probative value as direct evidence.
                                                                                 -11-

State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). “A firearm is an
inherently dangerous instrumentality, the use of which is likely to produce death, and
a jury could reasonably infer from all testimony presented that a defendant formed
the specific intent necessary to commit murder.” State v. Carter, 7th Dist. No. 15 MA
0225, 2017-Ohio-7501, ¶ 99.
      {¶28} The state also points to the law on complicity.        Pursuant to R.C.
2923.03(F), a person who is complicit in the commission of an offense can be
prosecuted and punished as if he were a principal offender, and complicity need not
be charged in the indictment but can merely be stated in terms of the principal
offense. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 181.
A juvenile who was 16 (or 17) at the time of the offense is subject to mandatory
bindover if there is probable cause to believe he committed murder personally or
through complicity. Goins v. Wellington, 7th Dist. Nos. 01 CA 208, 01 CA 210 (Dec.
18, 2001), citing Agee v. Russell, 92 Ohio St.3d 540, 546-548, 751 N.E.2d 1043
(2001).
      {¶29} The state reviews the evidence obtained from the various video
surveillance systems and the detective’s testimony about how he constructed the
timeline. Appellee and J.J. were with the victim who was buying cigars in a store
within minutes of the shooting.    They left the store together and walked in the
direction of the alley. Appellee and J.J. walked behind the victim as they approached
the location of the alley. A video shows them leaving the sidewalk as if to cross the
street to the side where the alley was located.         According to a reasonable
construction of the evidence, a gun was fired at the victim in the alley. A 9mm shell
casing was found in the alley near a cigar and cigar wrappers with serial numbers
showing they were purchased at the store at the time the three were in the store.
The victim usually carried a 9mm firearm, but no firearm was recovered from the
scene. The victim was shot from behind with a handgun; the bullet entered his upper
back and exited his neck.
      {¶30} The medical examiner opined the victim could have run for a minute
after suffering the wound. A video shows a person, whom the detective concluded
                                                                                    -12-

was the victim, running down the alley alone toward the street where his body was
found. This was minutes after the victim stepped off the sidewalk with Appellee and
J.J. on Hylda Avenue across from the opening of the alley. A passing motorist saw
the victim’s body in the road soon after the firing of shots which were heard by others
in the area, including the firemen at the nearby fire station. The motorist, rather than
the victim’s companions, called 911.
       {¶31} Appellee contends the timeline may not be as compact as the detective
suggests, noting the detective thought he was called to the scene around 11:00 p.m.
Appellee believes it was significant the firemen reported hearing three shots but only
one 9mm casing was found in the alley. At the hearing, the defense theorized a car
may have been waiting on West Hylda Avenue just outside the camera’s range and
focused on whether the detective could disprove someone else, such as the material
witness, was waiting for the victim with a gun just outside the range of the video. (Tr.
123). Appellee concludes the prosecution failed to demonstrate a car or unidentified
person was not present at the scene. As the state points out, it did not have a
burden to disprove alternate theories of the case argued by the defense or otherwise
implied by the evidence. A.J.S., 120 Ohio St.3d 185 at ¶ 61. When presented with
alternate credible theories of the case at the bindover hearing, a juvenile court is not
permitted to choose a theory; this is the function of the jury at trial (or judge at a
bench trial). Id. at ¶ 43, 64; Iacona, 93 Ohio St.3d at 96.
       {¶32} The evidence demonstrates more than a fair probability the victim
entered the alley. The defense urged, however, there was no (admitted) evidence
showing Appellee entered the alley. In reviewing the sufficiency of the evidence
establishing probable cause, the state asserts this court should also consider the
detective’s testimony as to what J.J. told him.       J.J. relayed three stories, which
changed as the detective revealed more information gleaned from the videos: (1) he
was at Eldridge’s house with the victim and Appellee, Eldridge asked them to leave
due to an issue with the victim, and the victim left in a blue car; (2) the victim pulled
out his gun to rob the “weed man” who pulled up in a blue car, but the car’s
passenger shot the victim in the back of the head; and (3) Appellee shot the victim in
                                                                                                    -13-

the back of the head with the victim’s gun after recalling the victim snitched on them
(and the injured victim ran toward Indianola). Appellee suggests the trial court could
find these statements lacked any indicia of reliability.
        {¶33} In evaluating the quality of the evidence presented by the state to show
probable cause, a juvenile court is prohibited from exceeding “the limited scope of the
bindover hearing” and is barred from “assum[ing] the role of the ultimate fact-finder.”
A.J.S., 120 Ohio St.3d 185 at ¶ 43-44. At this preliminary stage, the state was not
required to prove the truth of the claims. See id. at ¶ 51 (the state merely had the
burden to show probable cause, not to prove Appellee’s guilt).                          The evidence
presented by the detective, including the statement he collected from J.J., provided a
reasonable ground for believing Appellee was involved in the murder. In other words,
if J.J.’s statement is part of the equation, probable cause was clearly established.
        {¶34} However, it appears the juvenile court refused to consider any evidence
about J.J. speaking to the detective in the case against Appellee and only considered
it to find probable cause in the case against J.J., which was heard jointly with
Appellee’s case.5        The state contends the juvenile court erred in disregarding
relevant and admissible evidence of probable cause such as the statement made by
J.J. to the detective. The state asserts it is well-settled that hearsay may form the
basis for the finding of probable cause, citing cases allowing hearsay when
determining probable cause for searches. See, e.g., United States v. Ventresca, 380
U.S. 102, 107-108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (probable cause for a
warrant can be based on evidence that would qualify as hearsay if presented in a
criminal trial).
        {¶35} The juvenile court’s decision to exclude J.J.’s statement appears to be
based on a finding it was prohibited hearsay under the confrontation clause and
evidentiary rules. Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the


5 No objection was entered during the detective’s testimony on what J.J. told him. Eleven months
later, the court ruled State Ex. 2-3 (J.J.’s video statement) inadmissible and seemed to impliedly strike
the detective’s testimony on what he was told by J.J.
                                                                                   -14-

matter asserted. Evid.R. 801(C). “A statement is not hearsay if it is admitted to
prove that the declarant made it, rather than to prove the truth of its contents.” State
v. Williams, 38 Ohio St.3d 346, 348, 528 N.E.2d 910, 924 (1988), fn. 4 (a statement
“which would otherwise be considered hearsay” may be admitted to show the effect
on the hearer).      Similarly, even in a trial where the confrontation clause clearly
applies to out-of-court testimonial statements, the confrontation clause “does not bar
the use of testimonial statements for purposes other than establishing the truth of the
matter asserted.” Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004), fn. 9, citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct.
2078, 85 L.Ed.2d 425 (1985).
       {¶36} The fact J.J. told the officer three different stories was not offered to
prove the truth of the matter asserted by the declarant. Moreover, the three stories
contained incompatible content, and thus could not all have been offered to prove the
truth of the matter asserted by the declarant.     As to the final story incriminating
Appellee as the shooter, there is a suggestion the juvenile court pre-judged
admissibility issues that may or may not arise at trial. For instance, the “Former
Testimony” hearsay exception provides: “Testimony given at a preliminary hearing
must satisfy the right to confrontation and exhibit indicia of reliability.”    Evid.R.
804(B)(1).       This is the rule for ascertaining whether prior preliminary hearing
testimony can be used in the actual trial. Additionally, there is a theory that merely
because a statement would qualify as hearsay if presented at a later criminal trial
does not necessarily make it hearsay for purposes of a probable cause hearing. See
State v. Miles, 5th Dist. No. 3341 (June 28, 1988) (“The testimony was admitted to
show the existence of probable cause and not to show the truth of the matters
asserted. In short, the use of the testimony was not a hearsay use.”). See also In re
D.S., 1st Dist. No. C-130094, 2013-Ohio-4565, ¶ 8 (in reversing the juvenile court’s
dismissal, the First District found probable cause by using a police officer’s testimony
as to what the co-defendant told the officer).      Even if considered hearsay, the
statement is not barred unless the confrontation clause or the evidentiary rules apply
to exclude it.
                                                                                      -15-

       {¶37} The federal confrontation clause provides: “In all criminal prosecutions,
the accused shall enjoy the right * * * to be confronted with the witnesses against
him.” Sixth Amendment, U.S. Constitution. The corresponding state confrontation
clause provides no greater rights. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-
2742, 933 N.E.2d 775, ¶ 12. Referring specifically to a trial, the Ohio Constitution at
Article I, Section 10 provides: “In any trial, in any court, the party accused shall be
allowed * * * to meet the witnesses face to face * * *.” The right to confrontation
through the presentation of a certain quality of evidence is generally considered a
“trial right.” See, e.g., Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d
255 (1968).
       {¶38} “As a rule, if an out-of-court statement is testimonial in nature, it may
not be introduced against the accused at trial unless the witness who made the
statement is unavailable and the accused has had a prior opportunity to confront that
witness.” (Emphasis added.) Bullcoming v. New Mexico, 564 U.S. 647, 657, 131
S.Ct. 2705, 180 L.Ed.2d 610 (2011).         The United States Supreme Court “has
repeatedly declined to require the use of adversarial procedures to make probable
cause determinations.” Kaley v. United States, __ U.S. __, 134 S.Ct. 1090, 1103,
188 L.Ed.2d 46 (2014). See also Brinegar v. United States, 338 U.S. 160, 174-175,
69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (admitting hearsay at a suppression hearing to
ascertain the constitutionality of a vehicle search and thereafter excluding it at trial
was not inconsistent or improper but “illustrate[s] the difference in standards and
latitude allowed in passing upon the distinct issues of probable cause and guilt”).
       {¶39} The Ohio Supreme Court held the constitutional right to confront one’s
accusers “relates to the actual trial for the commission of the offense and not to the
preliminary examination * * *.” Henderson v. Maxwell, 176 Ohio St. 187, 188, 198
N.E.2d 456 (1964).     Where newer case law is a by-product of the confrontation
clause, it only applies if the confrontation clause applies. State v. Carter, 7th Dist.
No. 15 MA 0225, 2017-Ohio-7501, ¶ 39 (if the confrontation clause does not apply,
then Bruton does not apply), as to Bruton v. United States, 391 U.S. 123, 88 S.Ct.
                                                                                      -16-

1620, 20 L.Ed.2d 476 (1968) (confrontation violation when a codefendant's
testimonial confession incriminating the defendant is introduced at a joint trial).
       {¶40} Federal circuit courts have concluded the standards for admissibility of
evidence at a preliminary hearing are not governed by the Sixth Amendment’s
confrontation clause. Peterson v. California, 604 F.3d 1166, 1170 (9th Cir.2010);
United States v. Andrus, 775 F.2d 825, 836 (7th Cir.1985); United States v. Harris,
458 F.2d 670, 677-678 (5th Cir.1972). See also United States v. Kin-Hong, 110 F.3d
103, 120 (1st Cir.1997) (“In probable cause hearings under American law, the
evidence taken need not meet the standards for admissibility at trial” as a
“preliminary hearing is not a minitrial of the issue of guilt”).
       {¶41} We do not believe the juvenile court (at a probable cause hearing held
prior to transferring a juvenile to the general division) was bound by confrontation
clause standards for admissibility of evidence. We now review the questions of state
law. Specifically, whether rules of evidence apply at the juvenile probable cause
hearing and if so whether a hearsay exception would permit the statement’s
introduction at the probable cause hearing.
       {¶42} Initially, we note a criminal rule states the preliminary hearing in a
felony case against a defendant “shall be conducted under the rules of evidence
prevailing in criminal trials generally.” Crim.R. 5(B)(1)-(2). This is a departure from
the rules governing federal procedure in preliminary hearings; the evidentiary rules
are expressly inapplicable to preliminary examinations in federal criminal cases,
except as to privilege. See Fed.Evid.R. 1101(d)(3). See also Staff Note to former
Fed.R.Crim.P. 5.1(a) (since the rules of evidence are explicitly inapplicable to
preliminary hearings, Crim.R. 5.1 need no longer specifically explain, “probable
cause may be based upon hearsay evidence in whole or in part”).
       {¶43} Pursuant to Crim.R. 1(C)(5), the Ohio Criminal Rules, “to the extent that
specific procedure is provided by other rules of the Supreme Court or to the extent
that they would by their nature be clearly inapplicable, shall not apply to procedure * *
* in juvenile proceedings against a child * * *.” Various provisions in Crim.R. 5(B)
would not apply to juvenile proceedings. For instance, Crim.R 5(B) requires bindover
                                                                                      -17-

to the common pleas court if there is probable cause to believe the defendant
committed the crime charged or any other felony; however the juvenile statute does
not permit bindover directly after the preliminary hearing unless there is probable
cause of an offense specifically listed in the statute.       See R.C. 2152.12(A).      In
addition, Crim.R. 5(B) provides for bindover of related misdemeanors (except minor
misdemeanors) accompanying the felony, which is at odds with R.C. 2151.52(F).
Also, the state can take the case to the grand jury (where the rules of evidence are
inapplicable) after a trial judge finds insufficient probable cause, but a juvenile court’s
finding cannot be similarly avoided as a juvenile court must find probable cause in
order to relinquish jurisdiction. See R.C. 2152.12.
       {¶44} The Juvenile Rules “prescribe the procedure to be followed in all
juvenile courts of this state in all proceedings coming within the jurisdiction of such
courts” (with listed exceptions). Juv.R. 1(A). The juvenile rule providing for a pre-
transfer preliminary hearing, Juv.R. 30(A), does not contain Crim.R. 5(B)(2)’s
incorporation of the evidentiary rules.
       {¶45} We turn to the Ohio Rules of Evidence, which “govern proceedings in
the courts of this state, subject to the exceptions stated in division (C) of this rule.”
Evid.R. 101(A).     Some exceptions include grand jury proceedings and special
statutory proceedings of a non-adversary nature in which these rules would by their
nature be clearly inapplicable. Another exception reads: “Miscellaneous Criminal
Proceedings. Proceedings for extradition or rendition of fugitives; sentencing;
granting or revoking probation; proceedings with respect to community control
sanctions; issuance of warrants for arrest, criminal summonses and search warrants;
and proceedings with respect to release on bail or otherwise.” Evid.R. 101(C)(3).
This list of excluded miscellaneous criminal proceedings does not contain preliminary
hearings (as does the aforementioned federal counterpart), so as not to contradict
Crim.R. 5(B)(2) (which states the rules of evidence applicable to criminal trials shall
be applied to the preliminary hearing in a felony case).
       {¶46} Evid.R. 101(C) also provides the Rules of Evidence do not apply in
“[p]roceedings in which other rules prescribed by the Supreme Court govern matters
                                                                                   -18-

relating to evidence.”     Evid.R. 101(C)(6).   For instance, a juvenile court at a
dispositional hearing “may admit evidence that is material and relevant, including, but
not limited to, hearsay, opinion, and documentary evidence.” Juv.R. 34(B)(2) (with
the exception of permanent custody). The Ninth District equated the amenability
hearing (held after the probable cause hearing in a discretionary bindover) with a
dispositional hearing and admitted hearsay under Juv.R. 34. State v. Williams, 9th
Dist. No. 91CA005054 (Nov. 6, 1991).
      {¶47} Moreover, the stated purpose of the evidentiary rules is to provide
procedures for the adjudication of causes. Evid.R. 102. As set forth above, a simple
hearing to determine if there is probable cause for the offense charged in order to
transfer a juvenile to the general division of the common pleas court to be tried as an
adult is not an adjudication. Breed, 421 U.S. 519 at fn. 18 (if the bindover hearing
required proof of guilt, it would be adjudicatory and further criminal proceedings could
not occur due to double jeopardy).      See also Carmichael, 35 Ohio St.2d at 7-8
(amenability hearing, held with probable cause hearing, was not adjudicatory; so
hearsay was admissible in a pre-rule case); In re A.M., 139 Ohio App.3d 303, 308,
743 N.E.2d 937 (8th Dist.2000) (“The introduction of evidence of probable cause to
believe the juvenile committed the alleged offense does not transform a probable
cause hearing into an adjudicatory proceeding.”)’; State v. Whisenant, 127 Ohio
App.3d 75, 85, 711 N.E.2d 1016 (11th Dist.1998) (“because the bindover proceeding
is not adjudicative (the juvenile's guilt or innocence is not at issue), statutory and
constitutional questions concerning the admissibility of evidence are premature and
need not be addressed”).
      {¶48} Accordingly, we conclude the Ohio Rules of Evidence do not apply in a
juvenile mandatory bindover proceeding. Therefore, the juvenile court should have
considered J.J.’s statements to the detective in determining whether there was
probable cause to bind Appellee over.
      {¶49} Even if the final portion of J.J.’s statement was considered hearsay and
the evidentiary rules are applied, there are hearsay exceptions. See Evid.R. 802
(hearsay is not admissible except as otherwise provided by federal or state
                                                                                    -19-

constitutions or state law). The statement against interest exception was discussed
by the parties below concerning the statement of the material witness, and the court
suggested J.J.’s statement could not be used to corroborate this statement.         The
hearsay exception, for use when the declarant is unavailable, provides: “A statement
that was at the time of its making so far contrary to the declarant's pecuniary or
proprietary interest, or so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against another, that a
reasonable person in the declarant's position would not have made the statement
unless the declarant believed it to be true.” Evid.R. 804(B)(3). “A statement tending
to expose the declarant to criminal liability, whether offered to exculpate or inculpate
the accused, is not admissible unless corroborating circumstances clearly indicate
the truthworthiness of the statement.” Id.
       {¶50} We refer back to another exception to the evidentiary rules contained in
Evid.R. 101(C)(1), which states the evidentiary rules do not apply to “[d]eterminations
prerequisite to rulings on the admissibility of evidence when the issue is to be
determined by the court under Evid.R. 104.”        Likewise, Evid.R. 104(A) provides:
“Preliminary questions concerning * * * the admissibility of evidence shall be
determined by the court * * * In making its determination it is not bound by the rules of
evidence except those with respect to privileges.” This is part of the reason why “the
Rules of Evidence do not apply to suppression hearings.” See State v. Boczar, 113
Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 17. Additionally, in showing
evidence is admissible under a hearsay exception, the state can rely on evidence
that may be considered hearsay at trial. See, e.g., Bourjaily v. United States, 483
U.S. 171, 178, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (court may consider hearsay in
making factual determinations prerequisite to a hearsay exception).           Thus, two
allegedly inadmissible statements can corroborate each other so as to indicate
truthworthiness under Evid.R. 804(B)(3).
       {¶51} Besides the fact that two alleged hearsay statements corroborated each
other, the evidence collected by the detective also provided corroboration for J.J.’s
final story. Any finding to the contrary was wholly unreasonable at the probable
                                                                                   -20-

cause hearing. In any event, the juvenile court’s decision appears to have been
based on a belief the confrontation clause prohibits a co-defendant’s testimonial
statement to a detective to be admitted at a preliminary juvenile transfer hearing. We
do not believe there is such a prohibition.
        {¶52} Considering the totality of the circumstances, we conclude there was
sufficient, credible evidence demonstrating probable cause in this case. Viewing the
evidence presented at the probable cause hearing and all rational inferences in the
light most favorable to the state, a rational person could conclude there were
reasonable grounds for believing Appellee committed murder, i.e., there was a “fair
probability” Appellee was culpably involved in the murder. When a reviewing court
reverses a juvenile court’s finding of no probable cause and finds sufficient probable
cause in a mandatory transfer case, a proper remedy is to reverse and remand with
instructions to enter a mandatory transfer order. See A.J.S., 120 Ohio St.3d 185 at
¶ 65.
        {¶53} Accordingly, the juvenile court’s judgment of dismissal is reversed, and
the case is remanded with instructions to enter an order of mandatory transfer.



Donofrio, J., concurs in judgment only; see concurring in judgment only opinion.

Waite, J., concurs.
                                                                                  -21-

DONOFRIO, J. concurs in judgment only with concurring opinion.

       {¶54} I respectfully concur in judgment only with the majority’s judgment that
the judgment of dismissal is reversed and the case is remanded with instructions to
enter an order of mandatory transfer. I write separately, however, because once the
conclusions are reached that the Ohio Rules of Evidence do not apply at a juvenile
mandatory bindover hearing and that the juvenile court is not bound by confrontation
clause standards at a juvenile mandatory bindover hearing, there is no need for
further analysis in this case.
       {¶55} At paragraph 41, the majority asks the question whether the Ohio Rules
of Evidence apply at juvenile mandatory bindover hearings. They conclude that, in
fact, the rules of evidence do not apply at juvenile mandatory bindover hearings. I
agree with this determination based on the majority’s reasoning in paragraphs 42
through 47. I further agree with the majority’s analysis of the confrontation clause in
paragraphs 37 through 41 and with their conclusion that the juvenile court was not
bound by confrontation clause standards for the admissibility of evidence.
       {¶56} Once the above conclusions are reached, however, there is no need for
further discussion regarding hearsay, non-hearsay, or hearsay exceptions. In fact, I
do not agree with the majority’s analysis regarding non-hearsay issues of J.J.’s
statement to the detective.
       {¶57} I would simply conclude that because the rules of evidence and the
confrontation clause standards do not apply in this case, the trial court erred in
excluding J.J.’s statements to the detective. When J.J.’s statements are considered
along with the other evidence presented at the mandatory bindover hearing, there
was sufficient evidence on which to bind Appellee over.
