State v. Smith
| Decision Date | 14 November 2019 |
| Docket Number | No. 107899,107899 |
| Citation | 2019 Ohio 4671 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. NICHOLAS SMITH, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Gregory Ochocki, Assistant Prosecuting Attorney for appellee.
Timothy Young, Ohio Public Defender, and Lauren Hammersmith, Assistant State Public Defender, for appellant.
MARY EILEEN KILBANE, A.J.:
{¶ 1} Defendant-appellant, Nicholas Smith ("Smith"), appeals his convictions after pleading guilty to aggravated robbery, grand theft, and failure to comply. For the reasons set forth below, we affirm his convictions, but remand the matter for the issuance of a nunc pro tunc entry to correct the postrelease control notification in the trial court's sentencing journal entry.
{¶ 2} In September 2017, 16-year-old Smith was named in an eight-count complaint in Cuyahoga J.C. No. DL-17-114773, stemming from an incident that occurred on August 18, 2017. Counts 1 and 2 listed the offense of aggravated robbery (first-degree felonies). Count 3 listed the offense of grand theft (fourth- degree felony). Count 4 listed the offense of theft (fifth-degree felony).1 Count 5 listed the offense of misdemeanor theft. Counts 6 and 7 listed the offense of failure to comply (third- and fourth-degree felonies). Count 8 listed the offense of having a weapon while under disability (third-degree felony) ("HWWUD").
{¶ 3} In February 2018, the juvenile court held a probable cause hearing on the matter. The following evidence was adduced at the hearing.
{¶ 4} On August 18, 2017, C.H. and A.R. were walking towards A.R.'s car, which was parked on West 65th Street near Bridge Avenue, when C.H. noticed two young men walking behind them. The young men were later identified as Smith, and codefendant, R.H. As C.H. and A.R. opened the car doors, A.R. was approached by a young man wearing jeans and a yellow and white shirt. He said "give me your keys or I'll shoot you in the f***ing head[.]" She replied, in shock, "are you serious?" To which he replied, "yes, I'm f***ing serious." A.R. then gave him her keys and started to back away with her hands raised.
{¶ 5} As A.R. handed over her keys, C.H. threw her purse to the ground out of fear and asked the other young man wearing a dark green shirt if he wanted her purse. The male in the dark green shirt picked up her purse, got the keys from the other male, and they both drove away in A.R.'s car. A.R. called 911 after both males left the scene. C.H.'s cell phone was still in the purse that Smith and R.H. took with them.
{¶ 6} The responding police officer had C.H. log her Apple ID onto his iPhone, which allowed him to trace C.H.'s cell phone and advise dispatch of its location. Smith and R.H. were in custody within five minutes, which was after they got into a motor-vehicle accident while being pursued by police. The officers seized C.H.'s cell phone from Smith at the time of his arrest.
{¶ 7} Both C.H. and A.R. testified that they did not observe Smith or R.H. with a gun. When the 911 operator asked if there was a gun, A.R. responded, "no." The arresting officer did not find a gun on Smith's person. During the state's closing argument, the state conceded that there was no evidence of a firearm being displayed at the time of the verbal threats.
{¶ 8} After the hearing, the juvenile court found sufficient probable cause on three of the felony counts. The court found probable cause to believe Smith committed the acts that would be the crimes of aggravated robbery (two counts) and grand theft if committed by an adult. The court did not find probable cause with respect to the remaining felony counts — theft, failure to comply (two counts), and HWWUD. The court further found that there was not reasonable cause to believethat Smith had a firearm on or about his person or under his control at the time of the incident.
{¶ 9} Thereafter, an amenability hearing was held to determine if Smith was amenable to care or rehabilitation within the juvenile court system. The juvenile court found that he was not amenable and transferred the matter to the general criminal division of the Cuyahoga County Court of Common Pleas.
{¶ 10} Smith was subsequently indicted on the same eight counts in Cuyahoga C.P. No. CR-18-629459-A, along with an additional count of escape.2 In September 2019, Smith pled guilty to an amended count of aggravated robbery with a one-year firearm specification, and an amended count of grand theft. He also pled guilty to one count of failure to comply and escape. The remaining counts and specifications were nolled. The trial court sentenced Smith to an aggregate of nine years in prison.
{¶ 11} Smith now appeals, raising the following three assignments of error for review:
Assignment of Error No. 1
The juvenile court violated [Smith's] right to due process when it found probable cause for aggravated robbery in the absence of sufficient, credible, and competent evidence that [Smith] had a gun.
Assignment of Error No. 2
[Smith's] statutory and constitutional rights were violated when he was indicted and convicted on charges that were never transferred to the Cuyahoga County Court of Common Pleas.
Assignment of Error No. 3
[Smith] was deprived of his constitutional right to the effective assistance of counsel when counsel failed to object to the indictment and conviction of charges that were not properly transferred from the juvenile court.
Probable Cause — Aggravated Robbery
{¶ 12} In the first assignment of error, Smith argues that the juvenile court's probable cause determination on the aggravated robbery offenses were against the sufficiency and manifest weight of the evidence.
{¶ 13} The Ohio Supreme Court has found that a juvenile court's probable cause determination in a bindover proceeding involves questions of both fact and law. In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 51. An appellate court will "defer to the [juvenile] court's determinations regarding witness credibility, but [will] review de novo the legal conclusion whether the state presented sufficient evidence to demonstrate probable cause to believe that the juvenile committed the acts charged." Id. In meeting the probable cause standard, "'the state must produce evidence that raises more than a mere suspicion of guilt, but need not provide evidence proving guilt beyond a reasonable doubt.'" (Emphasis sic.) Id. at ¶ 42, quoting State v. Iacona, 93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001).
{¶ 14} Here, the juvenile court found probable cause for two counts of aggravated robbery in violation of R.C. 2911.01(A)(1), which provides in pertinent part: "[n]o person, in attempting or committing a theft offense * * * or in fleeingimmediately after the attempt or offense, shall * * * [h]ave a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]" Smith takes issue with the juvenile court's finding of probable cause on these two counts because there was no evidence that Smith possessed a gun during the incident.
{¶ 15} We note, however, that "[p]roof of the existence of a deadly weapon does not require that the state actually come into possession of the weapon — the fact required to be proved may be inferred from other evidence." State v. Hawkins, 8th Dist. Cuyahoga No. 53026, 1987 Ohio App. LEXIS 9612, 5 (Nov. 12, 1987), citing State v. Boyce, 21 Ohio App.3d 153, 154, 486 N.E.2d 1246 (10th Dist. 1985). See also State v. Haskins, 6th Dist. Erie No. E-01-016, 2003-Ohio-70, ¶ 41.
{¶ 16} A review of the record in the instant case reveals that as C.H. and A.R. opened the doors to A.R.'s car, A.R. was approached by a young man who said "give me your keys or I'll shoot you in the f***ing head[.]" She replied, in shock, "are you serious?" To which he replied, "yes, I'm f***ing serious." A.R. then gave him her keys and started to back away with her hands raised. While A.R. handed over her keys, C.H. threw her purse to the ground out of fear and asked the other male if he wanted her purse. He picked up her purse and both males drove away in A.R.'s car.
{¶ 17} While the victims did not observe a gun and the police did not locate a gun, both victims testified that the one male said, "give me your keys or I'll shoot you in the f***ing head" when they took A.R.'s car. These facts are sufficient toestablish that there existed probable cause to believe Smith committed aggravated robbery as charged in Counts 1 and 2 of the complaint.
{¶ 18} Accordingly, the first assignment of error is overruled.
Subject-Matter Jurisdiction
{¶ 19} In the second assignment of error, Smith argues the general division lacked subject-matter jurisdiction to indict him on Counts 4, 6, 7, and 8 and the gun specification because the juvenile court found no probable cause existed to believe Smith committed these charges.
{¶ 20} Initially, we note that three of the four counts that Smith takes issue with were nolled by the prosecutor as part of a plea agreement. With regard to Count 7, failure to comply, the juvenile court found the state did not present sufficient evidence to find probable cause that Smith committed the offense charged. However, the juvenile court found that Smith was not amenable and transferred the matter to the general criminal division. Thereafter, Smith was indicted in a nine-count indictment that included all of the offenses listed in the juvenile complaint.
{¶ 21} The Ohio Supreme Court has ruled that absent a proper bindover proceeding in the juvenile court, the trial court lacks subject-matter jurisdiction and any conviction thereafter is void ab initio. State v. Wilson, 73 Ohio St.3d 40, 44, 652 N.E.2d 196 (1995).
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