In re A.J.S.

Decision Date21 October 2008
Docket NumberNo. 2007-1451.,2007-1451.
Citation897 N.E.2d 629,2008 Ohio 5307,120 Ohio St.3d 185
PartiesIn re A.J.S.
CourtOhio Supreme Court

Timothy Young, Ohio Public Defender, and Elizabeth R. Miller, Assistant Public Defender, for appellant.

Ron O'Brien, Franklin County Prosecuting Attorney, and Katherine Press, Assistant Prosecuting Attorney, for appellee.

Katherine Hunt Federle and Angela Marie Lloyd, urging reversal on behalf of amicus curiae, the Justice for Children Project.


{¶ 1} This appeal presents two issues for our consideration: First, whether an order of a juvenile court denying a motion for a mandatory bindover1 in a delinquency proceeding is a final appealable order, and second, if it is a final and appealable order, whether abuse of discretion or de novo is the proper standard for appellate review. We hold that the 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. Further, we clarify that because a mandatory-bindover proceeding presents mixed issues of law and fact, an appellate court should review the juvenile court's findings of fact for abuse of discretion and review its conclusions of law de novo. In this instance, the juvenile court abused its discretion when it failed to consider all the evidence presented. After reviewing the record, we conclude that the prosecutor presented sufficient evidence at the bindover hearing to establish probable cause to believe that A.J.S. committed the acts charged. Accordingly, we affirm the judgment of the appellate court.

Factual History

{¶ 2} The transcript of the mandatory-bindover hearing conducted in the juvenile court reveals that on March 22, 2006, 16-year-old A.J.S. and his friends Antwan Smith and Markala Cooper, entered the Body Language Productions tattoo shop in Whitehall. Because they created a disturbance, Joseph Morgan, a shop employee, asked them to leave. Morgan testified that while in the shop, A.J.S. and Smith stated that they "had heat" and that they were "gonna peel [a] cap back," as A.J.S. reached into his jacket as if he were going to grab something. Morgan understood that to mean that they were going to shoot him and the other employees.

{¶ 3} As Morgan and others escorted the three to the door, A.J.S. began to resist. In the ensuing struggle, A.J.S. broke the glass door of the shop, and Smith punched Morgan in the jaw.

{¶ 4} When A.J.S. and his friends did exit the building, they ran to a car that was in a parking lot a few buildings away from the tattoo shop. The employees followed them in an effort to obtain the license number from the car. Michael Miracle, one of the shop employees, tried to pry the license plate off the back of the car as A.J.S. revved the engine. A.J.S. then put the car in reverse and backed up; Miracle jumped out of the way, and Miracle and Morgan each picked up a stick or board and threw it at the car.

{¶ 5} At that point, A.J.S. stopped the car, he and Smith got out, and Smith began to walk toward Miracle. Morgan heard a gun cock and started running. When he heard the first shot, Morgan saw rain water spraying from the top of a nearby grease trap. Morgan and Miracle each heard a total of six shots, but neither saw who had the gun.

{¶ 6} Rochelle Farr, Smith's girlfriend, remained in the back seat of the car throughout the incident. She testified that she had seen A.J.S. get out of the car and start shooting at the ground. She could not remember exactly how many shots were fired, stating, "I really wasn't counting or nothing like that," but eventually stated that she remembered hearing "[m]aybe three" shots.

{¶ 7} Smith, who was walking toward Miracle when the shooting began, was shot in the leg. The bullet passed through his leg at an upward angle. When the police arrived, Miracle discovered that one of the shots had gone through his right pant leg. Another bullet had struck the top of a three-foot-tall grease trap no more than 12 feet from A.J.S.'s car and only about two feet from some of those who stood in the parking lot. Detective Steven Brown of the Whitehall Police Department recovered six shell casings from the parking lot and a spent bullet that had hit the grease trap.

{¶ 8} After completing his investigation, Detective Brown filed a delinquency complaint in the juvenile court alleging that A.J.S. had committed six counts of attempted murder. The state then moved the juvenile court to relinquish jurisdiction of the case to the general division in accordance with R.C. 2152.12(A)(1)(a), the mandatory-bindover provision.

{¶ 9} After conducting a mandatory-bindover hearing, the juvenile court denied the state's request for mandatory transfer. The court concluded that probable cause did not exist to establish that A.J.S. had committed attempted murder because, in its view, the state had failed to present any evidence to demonstrate the relative positions of those in the parking lot at the time of the shooting and also failed to prove beyond a reasonable doubt that it was impossible for all the bullets to have been fired at the ground.

{¶ 10} The state appealed the denial of its motion to the appellate court, alleging that the juvenile court had abused its discretion when it failed to find probable cause and failed to transfer the case to the general division.

{¶ 11} On appeal, the Tenth District Court of Appeals held that the juvenile court had erred in finding no probable cause to believe that A.J.S. had committed the charged acts, and it therefore reversed the juvenile court's judgment and remanded the case with instructions to enter the appropriate findings and to transfer the case. The appellate court divided on the question of the appropriate standard of review for mandatory-bindover proceedings.

{¶ 12} A.J.S. appealed to this court, and we accepted jurisdiction to consider two propositions of law: One, "Courts of appeals must apply an abuse of discretion standard when reviewing the trial court's probable cause determination in a mandatory bindover proceeding"; And two, "An appellate court is without jurisdiction to review a trial court's finding of probable cause because it is not a final appealable order."

Final Appealable Order

{¶ 13} We first address A.J.S.'s proposition of law regarding whether the juvenile court's order denying the state's motion for mandatory transfer to the general division of the common pleas court constitutes a final appealable order.

{¶ 14} A.J.S. asserts that the juvenile court order denying the state's motion to relinquish jurisdiction is not a final order, because it does not determine the action or prevent a judgment. In response, the state posits that the juvenile court's decision is final because it effectively determines the action with respect to the court's jurisdiction and deprives the state of any meaningful remedy by way of appeal at the conclusion of the delinquency proceedings.

{¶ 15} R.C. 2505.02(B)(4) provides that an order granting or denying a provisional remedy is a final order if both of the following apply:

{¶ 16} "(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.

{¶ 17} "(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action."

{¶ 18} Thus, R.C. 2505.02(B)(4) sets forth a three-pronged test for determining whether a decision granting or denying a provisional remedy is a final order. State v. Muncie (2001), 91 Ohio St.3d 440, 446, 746 N.E.2d 1092.

{¶ 19} The first prong of this test asks whether the proceeding is a provisional remedy. R.C. 2505.02(A)(3) defines "provisional remedy" as "a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, suppression of evidence, a prima-facie showing pursuant to section 2307.85 or 2307.86 of the Revised Code, a prima-facie showing pursuant to section 2307.92 of the Revised Code, or a finding made pursuant to division (A)(3) of section 2307.93 of the Revised Code."

{¶ 20} While R.C. 2505.02 does not define "ancillary," this court has held that "`[a]n ancillary proceeding is one that is attendant upon or aids another proceeding.'" Muncie, 91 Ohio St.3d at 449, 746 N.E.2d 1092, quoting Bishop v. Dresser Industries (1999), 134 Ohio App.3d 321, 324, 730 N.E.2d 1079. We have previously held that the appointment of a receiver and an order for forced medication of an incompetent criminal defendant are provisional remedies, ancillary to the underlying actions. Forest City Invest. Co. v. Haas (1924), 110 Ohio St. 188, 192, 143 N.E. 549; Muncie at 450, 746 N.E.2d 1092. In contrast, we have held that a motion to intervene for the purpose of establishing a record in a separate action is not ancillary to the underlying proceeding, and therefore is not a provisional remedy. Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, paragraph one of the syllabus.

{¶ 21} R.C. 2152.12(A)(1)(a) governs the transfer proceeding and provides: "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 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." (Emphasis added.)

{¶ 22} Thus, despite the general...

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