[Cite as State v. Cleveland, 2018-Ohio-1185.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105443




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                             JAYQUILLE CLEVELAND
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-605737-B

        BEFORE:          Laster Mays, J., E.A. Gallagher, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                     March 29, 2018
                                    -i-



ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender

By: Victoria Bader
Assistant Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Brian D. Kraft
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

      {¶1}       Defendant-appellant, Jayquille Cleveland (“Cleveland”) appeals the

decision of the Juvenile Division of the Cuyahoga County Court of Common Pleas

finding that probable cause existed to believe that Cleveland committed the charged

offenses, and subsequently determining that Cleveland was not amenable to rehabilitation

in the juvenile system.   Cleveland was transferred to the General Division of the

Cuyahoga County Court of Common Pleas (“General Division”) to be tried as an adult.

We affirm the Juvenile Court’s determination.

 I.   Background and Facts

      {¶2} On September 15, 2015, a complaint was filed against Cleveland, who was

fifteen years of age at the time of the alleged crime, and codefendant J.B., who was

seventeen years of age at the time, in the Cuyahoga County Juvenile Court. The charges

stemmed from a shooting and robbery that occurred on August 23, 2015.

      {¶3} Cleveland was charged with:

      Aggravated murder, R.C. 2903.01(B), with one- and three-year firearm
      specifications (R.C. 2941.141(A), and 2941.145(A));

      Murder, R.C. 2903.02(B), with one- and three-year firearm specifications
      (R.C. 2941.141(A), and 2941.145(A));

      Aggravated robbery, R.C. 2911.01(A)(1), with one- and three-year firearm
      specifications (R.C. 2941.141(A), and 2941.145(A));

      Aggravated robbery, R.C. 2911.01(A)(1), with one- and three-year firearm
      specifications (R.C. 2941.141(A), and 2941.145(A));
       Robbery, R.C. 2911.02(A)(1), with one- and three-year                firearm
       specifications (R.C. 2941.141(A), and 2941.145(A)); and

       Robbery, R.C. 2911.02(A)(1), with one- and              three-year   firearm
       specifications (R.C. 2941.141(A), and 2941.145(A)).

       {¶4} On September 23, 2015, the state moved the court for a probable cause

hearing pursuant to R.C. 2152.10(B) to relinquish jurisdiction to the General Division on

the grounds that Cleveland was a delinquent child who committed an act that would be a

felony if committed by an adult, and he was 14 years of age or older at the time of the

alleged crime.

       A.     Probable Cause Hearing

       {¶5}   On March 2, 2016, Cleveland and his codefendant J.B. appeared for a

probable cause hearing. The state asserted that Cleveland and J.B. approached a parked

vehicle occupied by Annjeanette Bailey (“Bailey”) and Frederick McIntosh (“McIntosh”)

at approximately 6:15 p.m., armed with handguns. Cleveland approached the driver’s

side of the vehicle where Bailey was seated, and J.B. approached McIntosh on the

passenger’s side. Both were pointing guns and requested that Bailey and McIntosh

“gimme your stuff.” Affidavit Supporting Arrest Warrant No. 0908289308 (Sept. 8,

2015), p. 2. The occupants refused. McIntosh allegedly was struggling with J.B. when

Cleveland reached into the driver’s window and shot McIntosh in the back.              The

assailants ran from the scene.

       {¶6} The area where the incident occurred is monitored by security cameras and

recorded portions of the activities. Bailey testified based on her recollection and also to
the events depicted in the video. Approximately six to eight young men were walking

down the street in the direction of her vehicle where she was sitting in the driver’s seat

next to McIntosh and checking her cell phone. Two young men returned, approached

each side of the car and asked that she and McIntosh turn over whatever they had. The

shooter was standing on her side of the vehicle and was doing all of the talking, directing

the assailant who was standing on the passenger’s side.

       {¶7} Bailey stated that “everything just went black.” (Tr. 28.) She then heard a

loud “pop.” Her left eardrum was ringing. She only recalled portions of what happened

next. A bullet (casing) was laying on her chest and McIntosh was “laying over there.”

(Tr. 28.)

       {¶8} Bailey’s daughter Mariesha (“Mariesha”) also testified, and described the

video events. Mariesha had just left the house and was opening her car door when she

heard a shot. She looked up and “one of those two [defendants] came straight past me,

and I saw him tuck a gun into his pants.” (Tr. 57.) She walked toward the corner and

saw her mother standing in the street saying that someone had just shot McIntosh.

Mariesha followed the boys in her car and observed them running across the field near the

Cuyahoga Community College

campus. She attempted to follow but was unable to catch them. Mariesha identified

J.B.’s residence that is located in the area where the incident occurred.
       {¶9} Cleveland was ultimately identified after family members and friends sent

social media photographs to Bailey and Mariesha of individuals that were possibly

involved. They forwarded the identifying social media photographs to the police.

       {¶10} During the hearing, Bailey identified a photograph of Cleveland who she

said looked like the assailant, but then looked at the same photograph and denied that it

was the assailant. Bailey could not describe the individual who approached her car and

shot McIntosh except that his “face was scrunched up real tight.” (Tr. 26.) Bailey and

Mariesha also failed to select Cleveland in photographic or personal lineups at the police

station. Both were able to identify Cleveland at the hearing.

       {¶11} When asked while reviewing the surveillance video whether Cleveland was

the same individual that she saw running from the crime scene, Mariesha responded,

“[m]ost of me says yes, but right before he actually hits the camera here, it’s like they put

the hood[s] over their face, and I kind of saw here, but I didn’t see here [indicating on the

video]. So I can’t really say exactly who it is running here [indicating].” (Tr. 66-67.)

Mariesha finally responded that she “believe[d] it was” the appellant, “[t]he facial

features that I saw, yes, it was” the appellant. (Tr. 68.) She then recounted seeing

Cleveland and J.B. in the area several times, and stated that she was also familiar with

several of the young men depicted in the video.

       {¶12} Detective Sandoval (“Det. Sandoval”) of the Cleveland Police Homicide

Unit testified that he responded to the scene and interviewed Bailey, Mereisha and

Bailey’s other daughter. Det. Sandoval stated that, on August 24, 2015, J.B. appeared at
the Third District police station with his mother to explain his involvement with the

incident. They were transported to the homicide offices to meet with Det. Sandoval.

       {¶13} J.B. provided a videotaped statement admitting that he had a BB gun and

that he accompanied Cleveland at Cleveland’s request. They wore hooded jackets and

Cleveland was carrying a gun. The BB gun was recovered from the location where J.B.

stated he dropped it. Det. Sandoval also confirmed that Bailey and Mariesha were

unable to select Cleveland and J.B. from a photographic lineup, though they had just

emailed a photograph of Cleveland to the homicide unit the previous day.

       {¶14} Spent shell casings from a .380 caliber revolver were discovered on the

driver’s side of the vehicle. No fingerprints or DNA tying Cleveland to the scene was

discovered. The surveillance video depicted the two assailants walk past the car, walk

away, and then approach the automobile. The faces of the assailants were not discernible

in the video. Except for the in-court identification of Cleveland by the witnesses, the

sole evidence tying Cleveland to the scene was the confession of J.B.

       {¶15} The trial court determined that Cleveland was 15 years of age at the time

of the charged conduct and that there was probable cause to believe that Cleveland

committed the alleged acts that would be crimes if committed by an adult as specified in

the indictment. The court ordered an investigation to determine Cleveland’s amenability

to juvenile rehabilitation.

       B.     Amenability Hearing
       {¶16} An amenability hearing was held on April 20, 2016, where the trial court

determined:

       [A]fter a full investigation, including a mental examination of said child
       * * * and after full consideration of the child’s prior juvenile record,
       family environment school record, efforts previously made to treat and
       rehabilitate, the child, including prior commitments to the Department of
       Youth Services, the nature and severity of the offense herein, the age,
       physical, and mental condition of the victim as effected by the matter
       herein, and other matters of evidence, that there are reasonable grounds to
       believe that the child herein is not amenable to care or rehabilitation within
       the juvenile system.

       The court further finds that the safety of the community may require that the
       child be subject to adult sanctions.

Journal entry No. 0908921774 (Apr. 21, 2016), at p. 1.



       {¶17}     The court made further findings on factors supporting transfer under R.C.

2152.12(D)(1), (5), (6) and (8) respectively, enumerated hereafter accordingly: (1) the

victim suffered physical harm; (5) the child used a firearm

during the act; (6) the child was on parole for a prior delinquency conviction or

adjudication or awaiting a community control sanction; 1 and (8) the child is mature

enough physically, emotionally “or” psychologically for the transfer, and there is not

sufficient time to rehabilitate the child in the juvenile system.              Journal entry No.

0908921774 (Apr. 21, 2016), at p. 2.




          Cleveland was not on parole but had been arraigned 20 days before the shooting in this case
       1


for a misdemeanor domestic violence allegation.
       {¶18}      Further considering the R.C. 2152.12(E) factors against transfer, the trial

court identified as relevant items (4) and (7). First, the child has not previously been

adjudicated delinquent. Second, the juvenile system provides sufficient security to protect

the public. Id.

       {¶19}      The trial court expressed particular concern about “the nature and

callousness of the act” and Cleveland’s “principal participation in the activity that lead to

the victim’s death.” This opinion, the court explained, was “based upon the video” that

the court reviewed where Cleveland and the codefendant “cased” and “targeted the

victims” and then “mercilessly used their weapons on the deceased.” Journal entry No.

0908921774 (Apr. 21, 2016), at p. 2.         Cleveland’s    case was transferred for adult

adjudication.

       {¶20} On November 23, 2016, Cleveland entered a guilty plea to: (1) one count

of involuntary manslaughter (R.C. 2903.04), a first-degree felony; (2) two counts of

aggravated robbery (R.C. 2911.01(A)(1)), felonies of the first degree; (3) one count of

discharging a firearm in or near prohibited premises (R.C. 2923.162(A)(3)), a first-degree

felony; (4) and one count of tampering with evidence (R.C. 2921.12(A)(1)), a

third-degree felony. The manslaughter and robbery counts carried one- and three-year

firearm specifications that merged for purposes of sentencing.

       {¶21} Cleveland was sentenced to:

       11 years on the manslaughter charge, with a three-year firearm specification
       to be served prior to and consecutive to the underlying term for a total of 14
       years;
       10 years for each aggravated robbery charge, with three-year firearm
       specifications to be served prior to and consecutive to the underlying term
       for a total of 13 years for each robbery count; and
       10 years for discharging a firearm.

The manslaughter sentence was run consecutive to the other counts, each of which were

to be served concurrently, for a total of 24 years. Postrelease control for a five-year term

was also imposed.

       {¶22}     Cleveland appeals the decision of the Juvenile Court to transfer for an

adult adjudication. We affirm.

II.    Assignments of Error

       {¶23} Cleveland poses two assigned errors for our consideration:

       I.      The Juvenile Court’s probable cause determination was not
               supported by sufficient evidence, Fifth and Fourteenth Amendments
               to the United States Constitution; Section 10, Article I of the Ohio
               Constitution.

       II.     The Juvenile Court abused its discretion when it determined that
               15-year-old appellant was not amenable to treatment in the juvenile
               system, in violation of R.C. 2152.12(B), Fifth and Fourteenth
               Amendments to the U.S. Constitution, and Article I, Section 10,
               Ohio Constitution.

III.   Discussion

       {¶24} Cleveland was 15 years of age at the time the crimes were committed.

R.C. 2152.12(A)(1)(a)(ii) provides:

       (a)    After a complaint has been filed alleging that a child is a delinquent
       child for committing an act that would be aggravated murder, murder,
       attempted aggravated murder, or attempted murder if committed by an
       adult, the juvenile court at a hearing shall transfer the case if either of the
       following applies:    *      *      *
              (ii) The child was fourteen or fifteen years of age at the time of the
              act charged, section 2152.10 of the Revised Code provides that the
              child is eligible for mandatory transfer, and there is probable cause to
              believe that the child committed the act charged.

Id.

      {¶25} R.C. 2152.10(B) governs in this case:

      (B) Unless the child is subject to mandatory transfer, if a child is fourteen
      years of age or older at the time of the act charged and if the child is
      charged with an act that would be a felony if committed by an adult, the
      child is eligible for discretionary transfer to the appropriate court for
      criminal prosecution. In determining whether to transfer the child for
      criminal prosecution, the juvenile court shall follow the procedures in
      section 2152.12 of the Revised Code. If the court does not transfer the child
      and if the court adjudicates the child to be a delinquent child for the act
      charged, the court shall issue an order of disposition in accordance with
      section 2152.11 of the Revised Code.

(Emphasis added.) Id.

      A.      Probable Cause

      {¶26}       In considering the propriety of the discretionary bindover of a 15

year-old under R.C. 2152.12(B), the Juvenile Court determines whether the state’s

evidence credibly supports each element of the offense to find that probable cause exists

that the juvenile committed the offense. In re C.G., 8th Dist. Cuyahoga No. 97950,

2012-Ohio-5286, ¶ 31, citing State v. Iacona, 93 Ohio St.3d 83, 93, 2001-Ohio-1292, 752

N.E.2d 937:

      Probable cause in this context is not guilt beyond a reasonable doubt; it is
      evidence that raises more than a suspicion of guilt. In re A.J.S., 120 Ohio
      St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶16. This standard requires
      the juvenile court to “evaluate the quality of the evidence presented by the
      state in support of probable cause as well as any evidence presented by the
      respondent that attacks probable cause.”
In re C.G. at ¶ 31, quoting Iacona at 93.

       {¶27}     We apply a dual standard to our review of the Juvenile Court’s

determination. On the one hand, we “defer to the court’s credibility determinations by

reviewing for an abuse of discretion.” Id. On the other hand, we “conduct a de novo

review” of the trial court’s legal conclusion that sufficient probable cause existed to

“believe that the juvenile committed the charged act.” Id., citing In re A.J.S. at ¶ 1.

       {¶28} Cleveland argues that the state failed to provide sufficient evidence that

Cleveland is the individual who committed the offense based on the identification

evidence presented. J.B. voluntarily approached police and described the events. The

video confirms J.B.’s statement that he and Cleveland committed the acts.

       {¶29}    The record reflects that the trial judge gave due consideration to the

identification issue:

       [As to appellant], based on the statements provided by both Ms. Bailey, the
       [c]ourt finds at this point there is credible evidence from those two, not
       necessarily reliance simply on the court identification of [appellant]. Both
       of them identified him in court, both of them provided information to the
       police in terms of identifying him prior to this photo array. And
       notwithstanding a photo array that’s only one instance where they were not
       able to identify [appellant].

       I’m not going to make any statement regarding the suggestiveness of
       Facebook or social media identifications. What I will say is that there are
       millions of people on social media.

       They, however, only identified the one person, and that was [appellant].
       They didn’t send — at least there wasn’t any testimony that they sent,
       multiple pictures to Detective Sandoval or his partner. They sent one. So
       they’ve met the standard of beyond a mere suspicion.
(Tr. 119-120.)

      {¶30}      The probable cause standard is not as stringent as that of beyond a

reasonable doubt and considers whether the state has demonstrated more than a mere

suspicion of guilt when weighed upon any evidence presented by the defense. In re

A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 16. After a de novo

review of the record, we do not find that the trial court abused its discretion by

determining that probable cause existed to determine that Cleveland was a participant in

the crimes charged.

      {¶31} The first assigned error lacks merit.

      B.      Amenability Proceedings

      {¶32}        We review a challenge to the Juvenile Court’s determination on

amenability for an abuse of discretion. State v. Johnson, 2015-Ohio-96, 27 N.E.3d 9, ¶ 36

(8th Dist.), citing State v. Jones, 8th Dist. Cuyahoga No. 99044, 2013-Ohio-3725, ¶ 9,

citing In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 39.

      [A] “juvenile court enjoys wide latitude to retain or relinquish jurisdiction.”
       State v. Watson, 47 Ohio St.3d 93, 95, 547 N.E.2d 1181 (1989). And
      given the discretion afforded the juvenile court by the legislature in
      determining a juvenile’s amenability to the juvenile justice system, “[i]f
      there is some rational and factual basis to support the trial court’s decision,
      we are duty bound to affirm it regardless of our personal views of the
      evidence.” State v. West, 167 Ohio App.3d 598, 2006-Ohio-3518, 856
      N.E.2d 285, ¶ 10 (4th Dist.). We therefore will not reverse a juvenile
      court’s decision to transfer unless the decision was unreasonable, arbitrary,
      or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158, 404 N.E.2d
      144 (1980).

Johnson at ¶ 36.
        {¶33}     R.C. 2152.12(B) and Juv.R. 30 provide as to discretionary transfers:

        “Under R.C. 2152.12(B), after a complaint has been filed charging a child
        with offenses that would be a felony if committed by an adult, a juvenile
        court may transfer jurisdiction to the general division of the common pleas
        court if it finds that (1) the child was 14 years of age or older at the time of
        the act; (2) there is probable cause that the child committed the act; and (3)
        the child is not amenable to rehabilitation within the juvenile justice system
        and, to ensure the safety of the community, the child should be subject to
        adult sanctions.”

Johnson at ¶ 33, quoting Jones at ¶ 7.

        {¶34} Juv.R. 30(C) provides:

        Discretionary transfer. In any proceeding in which transfer of a case for
        criminal prosecution is permitted, but not required, by statute, and in which
        probable cause is found at the preliminary hearing, the court shall continue
        the proceeding for full investigation. The investigation shall include a
        mental examination of the child by a public or private agency or by a person
        qualified to make the examination. When the investigation is completed, an
        amenability hearing shall be held to determine whether to transfer
        jurisdiction. The criteria for transfer shall be as provided by statute.

        {¶35}    An amenability hearing was entertained due to Cleveland’s age per R.C.

2152.12(B) to determine whether Cleveland was amenable to rehabilitation in the juvenile

system. Pursuant to R.C. 2152.12(C), the Juvenile Court ordered an investigation of

Cleveland’s history, education, mental state, family situation, “and any other factor

bearing on whether the child is amenable to juvenile rehabilitation.” Id.

        {¶36}    R.C. 2152.12(D) lists factors to be considered that support bindover of the

case:

        (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.

       (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 [* * *18] 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.

       {¶37} R.C. 2152.12(E) lists factors to be considered that support retention of

jurisdiction by the Juvenile Court.

       (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.

       (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.

       {¶38} Both statutes allow the Juvenile Court to consider “any other factors

deemed relevant” to determine amenability. Johnson, 2015-Ohio-96, 27 N.E.3d 9, ¶ 35,

citing Jones, 8th Dist. Cuyahoga No. 99044, 2013-Ohio-3725, ¶ 8.

       {¶39} The Ohio Youth Assessment System Report and Psychological Evaluation

Report (“PER”) were administered to Cleveland. He was rated “low” on the issue of

recidivism due to no prior juvenile adjudications, lack of expression of criminal attitudes,

an expressed desire to change his life, and the presence of a supportive family.

Cleveland also cites the PER’s determination that “‘there is no indication of any history or

patterns of highly antisocial or predatory conduct’ and testing ‘did not raise any

significant red flags or alarms about psychological or personality problems that would

immediately suggest that he is acknowledging highly antisocial values or orientations.’”

Appellant’s brief (June 26, 2017), at p. 15, citing PER.

       {¶40} The Juvenile Court found that factors 1, 5, 6, and 8 supported binding

Cleveland over. The Juvenile Court determined that while Cleveland possessed an IQ of
80, he has a high-school-level intellectual ability and there was no indication that he

suffered from mental retardation or illness. (Tr. 19.) The Juvenile Court also stated that

Cleveland is the size of an average 16-year-old and that there are 18-year-olds of smaller

stature, a factor that is weighed in favor of transfer.        Cleveland was held to be

“emotionally, physically or psychologically mature enough for transfer.” (Tr. 19.)

       {¶41} An additional relevant factor supporting bindover was the nature of the act:



       The other relevant factor [supporting bindover] here is just the nature of this
       matter. The callousness of the act. And while the Court can’t necessarily
       use the information that was provided as a way of showing this was part
       [of] an organized criminal activity[, t]he Court can use the fact that based
       on the video that was shown, that both [defendants] cased these victims,
       walked by them, came back again, marked the individuals, used weapons as
       a way to try to force them to turn over property or give up property that they
       have no privilege to take. And then when the individuals resisted, the
       individuals decided to counter the attempts to take from them what they had
       earned in terms of hard work. *          *     *

       The callousness of this act in terms of how it was constructed and how it
       was coordinated and facilitated is another relevant factor that the Court uses
       in determining that a transfer is appropriate.
(Tr. 21.)

       {¶42}    The Juvenile Court found that only two factors supported retaining

jurisdiction: (1) Cleveland had no prior delinquency adjudication, and (2) Cleveland

could possibly be rehabilitated in the juvenile system. Cleveland asserts the trial court’s

findings on the issue of rehabilitation conflict with the court’s determination to bindover.

Thus, Cleveland argues that the third prong of the amenability inquiry has not been met,

that “the child is not amenable to rehabilitation within the juvenile justice system and, to
ensure the safety of the community, the child should be subject to adult sanctions.”

Johnson, 2015-Ohio-96, 27 N.E.3d 9, ¶ 33, citing Jones, 8th Dist. Cuyahoga No. 99044,

2013-Ohio-3725, ¶ 7.

       {¶43}    The trial court specified that rehabilitation was feasible and that the

juvenile system assured public safety:

       [Appellant] is 16 years old [at the time of the hearing], the age of majority
       is 18. So that’s two years. That is I believe what would be a sufficient
       amount of time to rehabilitate, especially in light of the fact that the Court
       has jurisdiction over him until he’s 21.

       If the Court decides not to transfer this matter to the Adult Court, he would
       have at least five years in the Juvenile Justice System. Those five years
       would be at The Ohio Department of Youth Services based on the nature of
       this offense, if he were to be found delinquent.     *    *    *

       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. That particular factor the Court finds
       is relevant and applicable because there is enough time.

(Tr. 20, 24.)

       {¶44}    In weighing the factors, in spite of the rehabilitation possibility, the court

deemed it appropriate to consider “the totality” of the evidence submitted to the court that

supported, and rebutted, the transfer. The court asserted that bindover was supported by

the “severity of the incident,” Cleveland’s age and involvement in orchestrating the

incident, that retaining Cleveland in the juvenile system would “demean the seriousness

of the incident,” and Cleveland’s planning and execution of the incident resulting in the

death of McIntosh. (Tr. 24-25). A review of the record demonstrates that five factors
supported bindover, while only two factors supported retaining the Cleveland in the

juvenile system.

       {¶45} The record demonstrates that the Juvenile Court carefully considered the

factors of R.C. 2152.12(D) and (E), and “ultimately determined,” wholly within the

juvenile court’s discretion, “that the factors in favor of transfer outweighed the factors in

favor” of retaining jurisdiction. “We cannot say that the trial court’s decision constitutes

an abuse of discretion.” Johnson, 2015-Ohio-96, 27 N.E.3d 9, at ¶ 44.

       {¶46} The second assignment of error is overruled.

IV.    Conclusion

       {¶47} The trial court’s judgment is affirmed.

       It is ordered that the appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



__________________________________________
ANITA LASTER MAYS, JUDGE

EILEEN A. GALLAGHER, A.J., and
SEAN C. GALLAGHER, J., CONCUR
