The opinion
[Cite as State v. Carter-El, 2025-Ohio-4842.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 114603
v. :
VICTORIOUS CARTER-EL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 23, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-24-690900-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Eric Collins, Kory Roth, and Thomas Rovito,
Assistant Prosecuting Attorneys, for appellee.
Joseph V. Pagano, for appellant.
DEENA R. CALABRESE, J.:
On October 30, 2024, a Cuyahoga County jury found defendant-
appellant Victorious Carter-El (“appellant”) guilty of murder, felonious assault, and
discharge of a firearm on or near prohibited premises. The trial court entered
judgment in accordance with the jury’s verdict and imposed a prison term.
Appellant timely appealed, challenging his convictions, sentence, and bindover from
juvenile court. Finding no merit to the appeal, we affirm.
I. Facts and Procedural History
A. Initial Proceedings
This case involves a fatal shooting that occurred in the parking lot of In
& Out Beverage at the corner of Lakeview Road and Durant Avenue in Cleveland,
Ohio. Three individuals shot at the victim, purportedly in the course of robbing him.
The victim sustained three gunshot wounds and perished at University Hospitals.
Appellant was charged in juvenile court with two counts of aggravated murder in
violation of R.C. 2903.01(A) and (B); three counts of murder in violation of R.C.
2903.02(A) and (B); two counts of aggravated robbery in violation of R.C.
2911.01(A)(1) and (3); and two counts of felonious assault in violation of R.C.
2903.11(A)(1) and (2). Each count also carried one- and three-year firearm
specifications.
The juvenile court held a bindover hearing on October 2, 2023. At the
hearing, the State presented one witness, Detective Andrew Hayduk, and numerous
exhibits, including surveillance video of the shooting. The video showed three
individuals exiting a red Kia, interacting with the victim, and ultimately shooting
him. Detective Hayduk testified that a Shaker Heights police officer helped him
identify appellant from the video footage based on the officer’s previous interactions
with appellant. (Oct. 2, 2023 juvenile court tr. 33-38.) Detective Hayduk further
testified that DNA matches placed appellant inside the subject vehicle and that a
common firearm linked this shooting to another that occurred in East Cleveland,
where appellant was likewise a suspect. The juvenile court subsequently bound
appellant over to adult court as mandated by Juv.R. 30, R.C. 2152.10, and 2152.12,
docketing an entry finding “that the State has shown venue, age, and some credible
evidence of the elements of the offenses as laid out in counts 1 through 9.” (Oct. 3,
2023 juvenile court entry.)
On April 5, 2024, the Cuyahoga County Grand Jury indicted appellant
on the same charges. The case proceeded to trial beginning September 20, 2024.
B. Trial Testimony
On January 8, 2023, Cleveland police responded to In & Out Beverage
in response to a call stating that a male had been shot at the location. The State’s
first witness, Detective Daniel McCandless, arrived at the scene to find the victim on
the ground in front of the store. Body-camera footage depicted the victim still alive
but barely responsive. Police and EMS rendered aid at the scene, but the victim,
who sustained three gunshot wounds, was pronounced dead at University Hospitals.
Police collected evidence at the scene, including four shell casings and
store surveillance footage. In the surveillance footage, three individuals can be seen
exiting a red Kia Soul automobile and speaking to the victim. All three pulled out
handguns and shot at the victim, who retreated towards the store and collapsed to
the ground.
Police sought data from the Real Time Crime Center to track the Kia’s
movements but were unable to locate the vehicle in that manner. The next morning,
however, police spotted the car in the driveway of Quitisha Taborn’s home. At trial,
Taborn identified codefendant K.M. as the individual seen outside the driver’s door
on surveillance footage. (Tr. 373.) She claimed not to recognize the other two
shooters. (Tr. 379.)
More importantly, Taborn is the mother of the State’s key witness, K.L.
Taborn testified that K.L. told her he was a passenger in the vehicle at the time of
the robbery. (Tr. 380.) During a police interview, K.L. told police that he “was
present for the robbery” but “had remained in the vehicle.” (Tr. 699.) K.L. stated
that K.M. was driving the vehicle at the time of the incident. (Tr. 699.) K.M. was
subsequently arrested.
The investigation continued with the goal of identifying the remaining
two suspects, both of whom had also been captured on surveillance video. Detective
Hayduk shared photos with law enforcement personnel and received information
regarding appellant. (Tr. 709-710.) He sent a DNA sample from appellant to the lab
for testing. According to Detective Hayduk’s testimony and that of State’s witness
Dr. Naris Butt, the sample matched DNA found on the mouth of a Faygo soda bottle
found in the vehicle, as well as an interior passenger door handle.
In January and April 2024, Detective Hayduk and a prosecutor met
with K.L. and his attorney for proffer interviews. Detective Hayduk testified that
K.L. revealed the name of another suspect, D.M., and further confirmed that
appellant was one of the suspects seen on video. (Tr. 713-714.) Detective Hayduk’s
subsequent investigation revealed that D.M. and appellant are first cousins.
(Tr. 726-728.)
K.L. testified at trial. He acknowledged that he was given a plea deal
in exchange for truthful testimony against all codefendants, including appellant.
(Tr. 540-541.) K.L. testified that on the day of the incident, he and K.M. decided to
take his mother’s red Kia Soul to sell marijuana. They picked up both D.M. and
appellant, who got into the back seat of the vehicle. K.L. was familiar with appellant
and his appearance because they had previously socialized approximately 15 times.
(Tr. 575.)
As the group drove towards East Cleveland, they “saw somebody
[they] could rob.” (Tr. 547.) K.L. explained that the victim had a handgun, which
they could take and sell, and that the victim was “known to be . . . drunk,” which
would make it easier to rob him. (Tr. 548 and 560.) According to K.L., the victim
was “waving” the handgun when they “first saw him walking down the street.”
(Tr. 577.) K.L. testified that appellant said “[l]et’s take it.” (Tr. 549.) They followed
the victim, who was on foot. K.L. was in the passenger seat, with K.M. driving.
(Tr. 552.) They stopped to “mak[e] a plan . . . [t]o rob him” after he came out of In
& Out Beverage. (Tr. 552-553.) The two individuals in the back seat at the time were
D.M. and appellant. After parking, K.L. remained in the car while the remaining
three individuals exited. (Tr. 555-556.)1
1 K.L. testified that at the time of the shooting he stood 6′1″ and weighed
approximately 300 pounds. (Tr. 599.) None of the individuals who emerged from the red
Kia matched that description.
K.L., narrating the video-surveillance footage, identified the person
wearing a “[b]lue hoodie” as appellant. (Tr. 555.) The face of the individual wearing
the blue hoodie is visible in the surveillance video. All three individuals possessed
handguns. (Tr. 556-557.) K.L., still referencing the video footage, indicated that
appellant waved a bag of marijuana at the victim. After the victim approached them,
appellant and the two others drew their handguns, pointing them at the victim. K.L.
explained that the group fired upon the victim because “[t]hey saw he reached for
his gun.” (Tr. 560.) Stills from the surveillance footage depict the person in the blue
hoodie, along with two others, standing on the driver’s side of the car and pointing
their firearms at the victim. (State’s exhibit Nos. 432-433.) Two additional stills
depict appellant on the opposite side of the car with his gun pointed at the victim as
the victim fell to the ground. (State’s exhibit Nos. 434-435.) Three bullets struck
the victim. At the scene, officers recovered four shell casings of two different
calibers, i.e., two 9 mm and two .380. None of the guns involved in the crime were
ever located.
Appellant and K.M. returned to the vehicle, with appellant climbing
into the vehicle’s passenger side back seat. D.M. fled on foot. (Tr. 561.) In a
subsequent conversation with appellant and the other perpetrators the same
afternoon, K.L. worried aloud about going to jail “for something that [he] didn’t do,”
and appellant reportedly stated, “[W]e’ll all go down together.” (Tr. 565.)
With respect to his first police interview, K.L. testified that he refused
to cooperate fully, even concealing some facts with his mother. (Tr. 568-570.) He
stated that he thought he “was doing the right thing” by “keeping the street code.”
(Tr. 597.) During later interviews with police, in the course of two proffers, he was
more forthcoming, including identifying appellant as one of the shooters. (Tr. 570-
571.) He further identified D.M. as the final individual involved in the fatal shooting.
(Tr. 571-572.)
K.L. testified that following the proffer interview in which he positively
identified appellant as one of the shooters, he had encountered appellant at the
detention facility, even though they were generally separated. Appellant reportedly
called K.L. “a snitch” every time they crossed paths. (Tr. 576 and 599.)
Detective Hayduk testified concerning his investigation of the
homicide. Narrating the video-surveillance footage, he pointed out that the red Kia
Soul moved erratically, appearing and disappearing from the camera’s field of view
multiple times. This indicated to Detective Hayduk that its occupants were “casing
that store and stalking the victim.” (Tr. 689.) He further testified that after shooting
began on the driver’s side of the vehicle, appellant moved to the passenger side and
aimed his weapon at the victim, who had his hands up. (Tr. 740.) According to
Detective Hayduk, “[t]he gun appear[ed] like it might be cycling” and the victim fell
to the ground. (Tr. 742.)
C. Rule 29 Motions and Sentencing
The State rested subject to the admission of exhibits. Appellant’s trial
counsel moved for acquittal under Crim.R. 29 with respect to all counts of the
indictment. The trial court granted the motion with respect to Count 1, aggravated
murder in violation of R.C. 2903.01(A), finding “a lack of evidence as it applies to
prior calculation and design.” (Tr. 860.) The trial court denied the Crim.R. 29
motion in all other respects. Appellant rested without calling witnesses, and the trial
court denied appellant’s renewed Crim.R. 29 motion. Following the jury charge and
closing arguments, the jury deliberated and returned guilty verdicts on all remaining
counts of the indictment, as well as the associated firearm specifications.
The trial court sentenced appellant on October 30, 2024. At the
sentencing hearing, appellant’s trial counsel expressly argued “that adolescents lack
the cognitive development and impulse control of adults,” that the United States
Supreme Court had recognized as much, and that the Ohio Revised Code now
specifically required the trial court to weigh aspects associated with an offender’s
age at the time of the offense in determining an appropriate sentence. (Tr. 971-972.)
Appellant’s trial counsel pointed out that appellant was 16 at the time of the offense
and indicated that the court must consider “that age’s hallmark features, including
intellectual capacity, immaturity, impetuosity, and a failure to appreciate risks and
consequences.” (Tr. 972.)
The trial court stated that “the record should reflect that I am taking
into consideration the mandate set forth in 2929.19(B)(1) — (B)(1)(b)(i) through
[(v)],” including “the chronological age of the offender at the time of the offense and
the age’s hallmark features.” (Tr. 973.) It indicated that it would “comply with the
mandates” of the statute, further remarking that it did “believe in what they’re
saying about the brain development, but that statute also requires that the Court
weigh that against the other factors.” (Tr. 974.) The court ultimately stated that it
“considered his age” and found that it did not “find that that mitigates his conduct.”
(Tr. 977.)
All counts merged for sentencing, and the State elected to proceed on
Count 2, aggravated murder in violation of R.C. 2903.01(B). The trial court imposed
a sentence of 30 years to life for aggravated murder. Because of the requirement
that two of the firearm specifications must be run consecutively to each other, the
trial court merged the one- and three-year firearm specifications attached to Counts
2 and 3, imposing firearm specification sentences of three years on Count 2 and
three years on Count 3, to be served consecutively to each other for a total of six
years on the firearm specifications, all served prior to the sentence of 30 years to life
on the underlying count of aggravated murder.
The trial court imposed a sentence of 36 years to life. Due to his age
at the time of the offense, however, appellant is eligible to be considered for parole
after serving 25 years.
This timely appeal followed.
II. Assignments of Error
Appellant presents four assignments of error for our review:
Assignment of Error I: The trial court erred when it denied appellant’s
motion for acquittal under Crim.R. 29 because the state failed to
present sufficient evidence to establish the elements necessary to
support the convictions beyond a reasonable doubt.
Assignment of Error II: Appellant’s convictions are against the
manifest weight of the evidence.
Assignment of Error III: The trial court committed reversible error by
failing to afford the juvenile offender’s age any weight as a mitigating
factor when imposing a sentence for aggravated murder, in violation of
Ohio law and constitutional principles. R.C. 2929.03 and 2929.12; U.S.
Const. Amend. VIII; XIV.
Assignment of Error IV: The juvenile court erred in finding that
mandatory bindover was required pursuant to Juv.R. 30 under Ohio
law.
Finding no merit to the appeal, we overrule appellant’s assignments
of error and affirm his convictions and sentence.
III. Analysis
A. Sufficiency of the Evidence
In his first assignment of error, appellant argues there was insufficient
evidence to support his convictions for aggravated murder with firearm
specifications and that the trial court therefore erred in denying his Crim.R. 29
motions for acquittal.2
This court has recently reaffirmed that “[a]n appellate court’s function
when reviewing the sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.” Spencer at ¶ 15, citing State v. Murphy, 91 Ohio St.3d 516
(2001); State v. Williams, 2025-Ohio-2593, ¶ 26 (8th Dist.); State v. Lynch, 2025-
2 Appellant concedes that pursuant to current precedent, this court’s sufficiency
review is limited to addressing those counts where there has been a conviction and a
sentence imposed. State v. Spencer, 2024-Ohio-5809, ¶ 14 (8th Dist.). He therefore
challenges his convictions under Counts 2 and 3, noting (for purposes of any further review)
that he contends there was insufficient evidence as to all counts in the indictment. The
same limitation applies to our manifest-weight analysis below. Id. at ¶ 25.
Ohio-2769, ¶ 49 (8th Dist.). The appellate court views the evidence “‘in a light most
favorable to the prosecution’” to determine whether “‘any rational trier of fact could
have found the essential elements of the crime proven beyond a reasonable doubt.’”
Spencer at ¶ 15, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of
the syllabus; Williams at ¶ 26. The inquiry is whether the State has met its “burden
of production” at trial. State v. Dyer, 2007-Ohio-1704, ¶ 24 (8th Dist.); Lynch at
¶ 49.
“‘In essence, sufficiency is a test of adequacy. Whether the evidence
is legally sufficient to sustain a verdict is a question of law.’” Cleveland v. Williams,
2024-Ohio-3102, ¶ 10 (8th Dist.), quoting State v. Thompkins, 78 Ohio St.3d 380,
386 (1997); see also Cleveland v. Neal, 2024-Ohio-1467, ¶ 26 (8th Dist.); Lynch at
¶ 49. Appellate courts are not to assess “whether the State’s evidence is to be
believed, but whether, if believed, the evidence against a defendant would support a
conviction.” (Emphasis added.) Dyer at ¶ 24; Lynch at ¶ 49. In considering the
sufficiency of the evidence, we do not independently weigh the evidence, because
“the evaluation of the weight of the evidence and credibility of witnesses are jury
issues.” State v. Hill, 75 Ohio St.3d 195, 205 (1996). See also State v. Mitchell, 2007-
Ohio-3896, ¶ 35 (8th Dist.); State v. Agee, 2013-Ohio-5382, ¶ 95 (7th Dist.)
(“[C]redibility is generally the province of the jury who sits in the best position to
assess the weight of the evidence and credibility of the witnesses whose gestures,
voice inflections, and demeanor are personally observed.”).
“‘Proof of guilt may be made by circumstantial evidence, real
evidence, and direct evidence, or any combination of the three, and all three have
equal probative value.’” Lynch at ¶ 50, quoting State v. Zadar, 2011-Ohio-1060, ¶ 18
(8th Dist.), citing State v. Nicely, 39 Ohio St.3d 147, 151 (1988); Jenks at 272.
Appellant attacks the sufficiency of the evidence on two grounds.
First, he generally argues that there was insufficient evidence of identity. Second,
he contends that there was insufficient evidence that he purposely caused the
victim’s death while committing or attempting to commit aggravated robbery, the
basis for the aggravated murder charge in Count 2. We find both arguments
unpersuasive.
The jury heard the testimony of K.L. and viewed surveillance video and
associated stills from the scene of the crime. The video captured the lead up to the
incident, with the red Kia Soul circling in and out of view and ultimately parking
under one of the cameras, as well as the shooting itself. K.L. testified that he was in
the vehicle. He identified the individual in the blue hoodie as appellant, further
testifying that he had previously socialized with appellant approximately 15 times.
The face of the person wearing the blue hoodie is visible in the video footage and in
the stills. That same individual can be seen leaving the car, engaging with the victim,
and drawing and pointing his gun at the victim along with the other two assailants
as the group opens fire. As the victim attempted to flee, the same individual moved
to the other side of the car and again pointed his firearm at the victim, appearing to
fire. K.L. testified, “They shot him,” clarifying that “they” meant all three of the
armed individuals. The victim sustained three bullet wounds, and four shell casings
were found at the scene. DNA evidence corroborated K.L.’s claim that appellant had
been in the vehicle, and there was further testimony that appellant was the first
cousin of another assailant, D.M. The State’s evidence, if believed, was sufficient to
establish appellant’s identity as one of the perpetrators.
The State’s evidence was also sufficient to establish the elements of
aggravated robbery and the associated aggravated-murder count. K.L. testified that
the individuals in the car targeted the victim because they assumed he might be
drunk, making him an easy target. K.L. testified that they saw the victim had a
handgun and that appellant specifically said, “Let’s take it.” (Tr. 549.) According to
his testimony, they next concocted a robbery plan and finally executed it. They
stopped the vehicle because they were “making a plan . . . [t]o rob him.” (Tr. 552.)
The plan, simply put, was “[t]o wait until he come out and rob him.” (Tr. 553.)
Asked for more details, K.L. testified the plan was to “[p]ut a gun to him and tell him
give you whatever you want from him.” (Tr. 554.) They passed on the opportunity
to rob another customer, seen on video, not only because they did not think he had
anything but also because they “had already made a plan basically.” (Tr. 557.) They
drew the victim into their orbit by asking if he wanted to buy marijuana. K.L.
testified it went from a robbery to a shooting because they saw the victim reach for
his gun. (Tr. 560.)
The State also points to the testimony of Detective Hayduk, who
opined that the extensive surveillance footage of the Kia erratically circling
suggested the group was “casing that store and stalking the victim.” (Tr. 689.) K.L.’s
testimony alone, however, was sufficient to establish that what transpired was a
robbery that quickly escalated to a homicide.
As noted above, we do not independently weigh the evidence in our
sufficiency analysis. Hill, 75 Ohio St.3d at 205. There was sufficient evidence to
convict appellant of the charged offenses. The State’s evidence, if believed,
supported findings that appellant committed the charged offenses. The State met
its burden of production, and a rational trier of fact could find the essential elements
of the crimes were proven beyond a reasonable doubt. Dyer, 2007-Ohio-1704, at
¶ 24 (8th Dist.); Spencer, 2024-Ohio-5809, at ¶ 15 (8th Dist.). Appellant’s first
assignment of error is overruled.
B. Manifest Weight of the Evidence
In his second assignment of error, appellant argues that his conviction
was against the manifest weight of the evidence. “In contrast to a sufficiency
argument, a manifest weight challenge questions whether the state met its burden
of persuasion.” State v. Hill, 2013-Ohio-578, ¶ 32 (8th Dist.); State v. Shirley, 2025-
Ohio-1064, ¶ 21 (8th Dist.). In our manifest-weight analysis, we “must look at the
entire record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether in resolving conflict in the
evidence, the trier of fact clearly lost its way and created such a miscarriage of
justice that the conviction must be reversed and a new trial ordered.” (Emphasis
added.) Spencer at ¶ 26, citing Thompkins, 78 Ohio St.3d at 387.
An appellate court will reverse on manifest weight “‘only in the
exceptional case in which the evidence weighs heavily against the conviction.’” State
v. McLoyd, 2023-Ohio-4306, ¶ 40 (8th Dist.), quoting Thompkins at 387; Williams,
2025-Ohio-2593, at ¶ 41 (8th Dist.). This is because “in a manifest-weight review,
the weight to be given the evidence and the credibility of the witnesses are primarily
for the finder of fact.” State v. Metz, 2019-Ohio-4054, ¶ 70 (8th Dist.); see also
Cleveland v. Johns, 2024-Ohio-3301, ¶ 24 (8th Dist.). Indeed, an appellate court
“‘may not substitute its own judgment for that of the finder of fact.’” Id. at ¶ 24,
quoting State v. Harris, 2021-Ohio-856, ¶ 33 (8th Dist.).
The jury was in the best position to judge the credibility of the State’s
key witness, K.L. At the outset of his testimony, K.L. testified extensively to the
details of the plea agreement he obtained in exchange for his testimony. He then
testified extensively concerning appellant’s involvement in the crime, including
identifying appellant in the video-surveillance footage and testifying that appellant
and the others had planned to rob the victim. In the video and stills, the person
wearing the blue hoodie does not have his face covered. In determining whether to
trust K.L.’s identification testimony, therefore, the jury could compare the
surveillance footage and selected stills to appellant’s face.3
3 In his sufficiency argument, appellant suggested that because Detective Hayduk
could not independently identify individuals in the surveillance video without assistance
from others such as K.L., it is impossible to identify appellant as the person wearing the
blue hoodie in the video. (Appellant’s brief at p. 12.) The cited portions of Detective
Hayduk’s testimony, however, concerned steps taken to ultimately identify all suspects.
Having reviewed the surveillance footage and stills, the features of the individual in the blue
Further with respect to identity, the jury had the benefit of
circumstantial evidence of appellant’s DNA on the car itself and on a Faygo soda
bottle recovered from the back seat where appellant was sitting. This corroborated
K.L.’s identification of appellant as one of the individuals who planned and
participated in a robbery that escalated to a homicide. Additional DNA testing also
lent credibility to K.L.’s overall testimony. For example, testing confirmed that
certain DNA found inside the vehicle was D.M.’s. Prior to that scientific
identification, however, K.L. had independently identified D.M. as one of the
suspects seen on video, including through a photo lineup.
Appellant attacked K.L.’s credibility at trial, pointing not only to the
plea deal but to his initial reluctance to identify suspects at the outset of the
investigation. K.L., however, explained to the jury that he was initially engaged in a
misguided effort to keep “the street code” by not “snitching.” He also testified that
after he made a plea deal with the State, appellant called him a “snitch” whenever
they crossed paths in the detention center — not a liar, but a snitch.
The jury was free to weigh whether K.L.’s narrative survived the
extensive cross-examination designed to undermine his credibility. In addition, the
trial court gave the jury a specific instruction on accomplice testimony. It instructed
the jury that “[t]estimony of a person who you find to be an accomplice should be
viewed with grave suspicion and weighed with great caution.” (Tr. 874.) As this
hoodie, identified by K.L. as appellant, appear sufficiently distinct for the jury to have
compared the video to appellant’s appearance at trial.
court wrote in Johns, “[t]he trier of fact may ‘believe or disbelieve any witness or
accept part of what a witness says and reject the rest.’” Johns, 2024-Ohio-3301, at
¶ 24 (8th Dist.), quoting Metz, 2019-Ohio-4054, at ¶ 70 (8th Dist.); see also State v.
Harris, 2025-Ohio-4374, ¶ 36 (8th Dist.).
Having independently reviewed the entire record, we cannot conclude
that this is the exceptional case in which the jury lost its way and created a manifest
miscarriage of justice. Appellant’s second assignment of error is overruled.
C. Sentencing
In his third assignment of error, appellant argues that the trial court’s
sentence violated the Eighth Amendment to the United States Constitution, R.C.
2929.03, and 2929.12. Specifically, appellant contends that the trial court failed to
give appropriate weight to his young age as a mitigating factor.
Appellant did not object to his sentence on constitutional grounds at
the trial-court level and has therefore waived any constitutional arguments. State
v. Woods, 2024-Ohio-467, ¶ 118 (8th Dist.).
With respect to appellant’s statutory challenge, we review felony
sentences under the standard set forth in R.C. 2953.08(G)(2), which provides that
an appellate court may increase, reduce, modify, or vacate and remand a felony
sentence if the court clearly and convincingly finds either that the record does not
support the sentencing court’s findings, or the sentence is otherwise “contrary to
law.” State v. Spencer, 2023-Ohio-3359, ¶ 20 (8th Dist.), citing State v. Marcum,
2016-Ohio-1002. As this court wrote in Spencer:
When formulating a sentence for a criminal offense, a trial court is
directed to consider specific factors outlined under R.C. 2929.11 and
2929.12. Under R.C. 2929.11(A), “the sentencing court shall consider
the need for incapacitating the offender, deterring the offender and
others from future crime, rehabilitating the offender, and making
restitution to the victim of the offense, the public, or both.” Similarly,
R.C. 2929.12 contains a lengthy list of factors that must be considered
“regarding the offender, the offense, or the victim” to determine
whether the offender’s conduct is more serious or less serious than
conduct normally constituting the offense and to determine whether
the offender is more or less likely to commit future crimes.
Spencer at ¶ 21.
R.C. 2929.11 and 2929.12, however, are not fact-finding statutes.
While ‘“the trial court must “consider” the factors, it is not required to make specific
findings on the record regarding its consideration of those factors, even when
imposing a more-than-minimum sentence.’” Id. at ¶ 22, quoting State v. Artis,
2022-Ohio-3819, ¶ 13 (8th Dist.). Consideration of the factors is presumed unless
the defendant ‘“affirmatively shows otherwise,’” and a trial court’s statement in its
sentencing entry ‘“that it considered the required statutory factors is sufficient to
fulfill its obligations under R.C. 2929.11 and 2929.12.’” Spencer at ¶ 22, quoting
Artis at ¶ 13. See also State v. Pate, 2021-Ohio-1089, ¶ 6 (8th Dist.); State v. Wright,
2018-Ohio-965, ¶ 16 (8th Dist.); State v. Sutton, 2015-Ohio-4074, ¶ 72 (8th Dist.);
State v. Clayton, 2014-Ohio-112, ¶ 9 (8th Dist.).
“Ordinarily, if a sentence falls within the terms of a valid statute, it
cannot constitute cruel and unusual punishment.” Woods, 2024-Ohio-467, at ¶ 121
(8th Dist.). The Ohio Supreme Court, however, has held that “a trial court must
separately consider the youth of a juvenile offender as a mitigating factor before
imposing a life sentence under R.C. 2929.03, even if that sentence includes eligibility
for parole.” State v. Patrick, 2020-Ohio-6803, ¶ 2. Furthermore, and “[r]elevant to
the circumstances presented in this case, R.C. 2929.19(B)(1)(b), effective on
April 12, 2021, requires the trial court to consider additional mitigating factors
when, as here, the offender was under the age of 18 at the time the subject offense
was committed.” Spencer at ¶ 23. In relevant part, the statute provides:
(1) At the sentencing hearing, the court, before imposing sentence, shall
do all of the following:
...
(b) If the offense was committed when the offender was under eighteen
years of age, in addition to other factors considered, consider youth and
its characteristics as mitigating factors, including:
(i) The chronological age of the offender at the time of the offense and
that age’s hallmark features, including intellectual capacity,
immaturity, impetuosity, and a failure to appreciate risks and
consequences;
(ii) The family and home environment of the offender at the time of the
offense, the offender’s inability to control the offender’s surroundings,
a history of trauma regarding the offender, and the offender’s school
and special education history;
(iii) The circumstances of the offense, including the extent of the
offender’s participation in the conduct and the way familial and peer
pressures may have impacted the offender’s conduct;
(iv) Whether the offender might have been charged and convicted of a
lesser offense if not for the incompetencies associated with youth, such
as the offender’s inability to deal with police officers and prosecutors
during the offender’s interrogation or possible plea agreement or the
offender’s inability to assist the offender’s own attorney;
(v) Examples of the offender’s rehabilitation, including any subsequent
growth or increase in maturity during confinement.
R.C. 2929.19(B)(1)(b).
In Spencer, 2023-Ohio-3359 (8th Dist.), this court held that the
mandate of R.C. 2929.19 (that the trial court consider specific factors) was similar
to the language of R.C. 2929.11 and 2929.12, and that therefore “‘the trial court need
not specify findings regarding the factors listed in R.C. 2929.19(B)(1)(b).’” Spencer
at ¶ 24, quoting State v. Spears, 2023-Ohio-187, ¶ 40 (5th Dist.). See also State v.
Billips, 2025-Ohio-108, ¶ 73 (8th Dist.). Our review is therefore limited to whether
the record ‘“affirmatively shows the court failed to consider those factors.’” Spencer
at ¶ 24, quoting Spears at ¶ 40.
The trial court in Spencer made the following remarks concerning the
defendant’s youth:
Mr. Spencer, I do take into consideration your age, I do take into
consideration your mental health issues and your life circumstances,
but the victims were very clear and echoed to this court the second that
you had the opportunity to escape that mental institution where we’re
trying to give you rehabilitation, we were trying to work with you, you
plotted and escaped and then you ran and you hid from the police. And
you tried to escape even more. Your mother is right. You do know right
from wrong. And you knew each time this is wrong. And when you
were using credit cards after raping people and stealing from them,
there are going to be severe consequences. I cannot believe this
conduct, 30 years being in this business I cannot believe that your
conduct and your spree and your buddies going around and
committing all of these offenses. You’ve ruined so many things, your
actions not only ruined their lives, ruined your life, they ruined all of
ours in society. That’s what you’ve done. It’s unconscionable what you
did.
(Emphasis added.) Spencer at ¶ 25. This court found that the trial court had
adequately complied with the mandates of R.C. 2929.19(B)(1)(b):
After careful consideration, we find the trial court adequately complied
with its obligation to carefully consider Spencer’s “youth and its
characteristics as mitigating factors” before imposing a sentence. Here,
the record reflects that in formulating Spencer’s sentence, the trial
court expressly considered the circumstances of Spencer’s offenses, as
well as Spencer’s individual circumstances, including his age and
maturity, his mental and intellectual capacity, his home life, and his
ability to appreciate the risks and associated consequences of his
conduct. The trial court went on to consider the overriding principles
and purposes of felony sentencing, and “the relevant sentencing
guidelines provided in R.C. 2929.11, 2929.12, 2929.13, as well as
2929.19.” (Tr. 96-97.) Under these circumstances, we are unable to
conclude that Spencer’s sentence is clearly and convincingly contrary
to law.
Id. at ¶ 26.
Viewing the present case through the lens of Spencer, we likewise find
that the trial court adequately complied with its obligation to carefully consider
appellant’s “youth and its characteristics as mitigating factors” prior to imposing a
sentence. Indeed, the record in the present case appears to be even more explicit
than in Spencer. The trial court expressly stated that “the record should reflect that
I am taking into consideration the mandate set forth in 2929.19(B)(1) — (B)(1)(b)(i)
through [(v)],” including “the chronological age of the offender at the time of the
offense and the age’s hallmark features.” (Tr. 973.) The court also recited the
remaining factors specified in R.C. 2929.19(B)(1)(b), affirming that it would “comply
with the mandates” of the statute and further remarking that it did “believe in what
they’re saying about the brain development[.]” (Tr. 973-974.) The court also
indicated that it reviewed the presentence-investigation report. (Tr. 961.) Our
independent review of the presentence-investigation report confirms that it
summarized appellant’s upbringing, substance-abuse history, social activities, peer
associations, criminal attitudes and behavioral patterns, and other relevant factors.
Appellant’s trial counsel confirmed he had reviewed the report and that it was
accurate to the best of his knowledge. (Tr. 961.) The trial court, after confirming it
had also considered the sentencing factors under R.C. 2929.11 and 2929.12 in
addition to the mandates of R.C. 2929.19(B)(1)(b), ultimately stated that it
“considered his age” and found that it did not “find that that mitigates his conduct.”
(Tr. 977.)
We agree with the State that consideration of a youth offender’s age
is all that is required, not that the offender’s age be given any specific weight or that
the statutory framework requires a reduced sentence. This conclusion is bolstered
by Spencer, where the trial court considered the defendant’s age but appeared to
give it little weight in light of the remaining circumstances of the case. This court’s
decision in Billips likewise did not suggest that a trial court is required to give the
offender’s age any specific weight. In Billips, this court wrote that “during the
sentencing hearing the trial court stated on the record that it considered Billips’s age
as it was required to do as a matter of law” and that therefore “Billips has not shown
that the trial court did not consider his age, and his sentence is not contrary to law
in that respect.” Billips, 2025-Ohio-108, at ¶ 73 (8th Dist.). See also Patrick, 2020-
Ohio-6803, at ¶ 42 (“We conclude that the sentencing court failed to articulate on
the record whether, and how, it considered Patrick’s youth in sentencing.”). In
addition, appellant has cited no cases suggesting that anything more than
consideration is required, i.e., no cases holding that a trial court is required to reduce
a youthful offender’s sentence or give the offender’s age any specific weight.
The sentencing transcript reflects that the trial court adequately
complied with its statutory obligation to consider appellant’s age as a mitigating
factor prior to imposing sentence. Appellant’s third assignment of error is
overruled.
D. Bindover
In his fourth assignment of error, appellant argues that the juvenile
court erred in finding that mandatory bindover was required pursuant to Juv.R. 30
under Ohio law. His argument again centers around his identity as one of the
perpetrators captured on surveillance footage. We find appellant’s arguments
unpersuasive.
In relevant part, R.C. 2152.12(A)(1)(a)(i) states:
After a complaint has been filed alleging that a child is a delinquent
child for committing one or more acts that would be an offense if
committed by an adult, if any of those acts 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 . . . [t]he child was sixteen or seventeen years of age at the
time of the act charged that would be aggravated murder, murder,
attempted aggravated murder, or attempted murder and there is
probable cause to believe that the child committed the act charged.
R.C. 2152.10(A)(1)(a) states that “[a] child who is alleged to be a
delinquent child is eligible for mandatory transfer and shall be transferred as
provided in [R.C. 2152.12]” where “[t]he child is charged with a category one offense
and . . . [t]he child was sixteen years of age or older at the time of the act charged.”
Aggravated murder and murder under R.C. 2903.01 and 2903.02, respectively, are
“category one” offenses. R.C. 2152.02(AA).
“[I]f a child is eligible for mandatory bindover and if probable cause
exists to believe that the juvenile committed the act charged, the juvenile court must
enter an order of transfer.” In re J.R., 2021-Ohio-2272, ¶ 28 (8th Dist.), citing In re
C.G., 2012-Ohio-5286, ¶ 29 (8th Dist.); see also In re J.C., 2024-Ohio-5918, ¶ 20
(8th Dist.).
This court recently summarized the standard of review in mandatory
bindover cases:
A reviewing court should “review the juvenile court’s findings of fact for
abuse of discretion and review its conclusions of law de novo.” In re
A.J.S., 2008-Ohio-5307, ¶ 1, 120 Ohio St.3d 185, 897 N.E.2d 629. “We
defer to the juvenile court’s determinations regarding witness
credibility, reviewing those determinations for abuse of discretion.”
State v. Shirilla, 2024-Ohio-4674, ¶ 151 (8th Dist.). In reviewing the
trial court’s factual findings for an abuse of discretion we consider
whether the court exercised “its judgment in an unwarranted way
regarding a matter over which it has discretionary authority.” Johnson
v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, ¶ 35, 187 N.E.3d
463. However, “whether the state has produced sufficient evidence to
support a finding of probable cause in a mandatory-bindover
proceeding is a question of law, and [is reviewed] de novo.” In re A.J.S.
at ¶ 47, citing State v. Consilio, 2007-Ohio-4163, 114 Ohio St.3d 295,
871 N.E.2d 1167.
In re J.C. at ¶ 21.
As the State notes, appellant does not dispute that the charges
qualified for mandatory bindover pursuant to R.C. 2152.10 and 2152.12. He also
does not contend that the juvenile court applied an incorrect probable-cause
standard. To establish probable cause in a mandatory bindover proceeding, “the
state has the burden to provide sufficient credible evidence on the elements of the
offense to warrant going forward with the charge.” In re J.R. at ¶ 31. While the State
“must provide credible evidence that raises more than a mere suspicion of guilt,” it
“need not provide evidence proving guilt beyond a reasonable doubt.” (Cleaned up.)
Id. See also In re D.M., 2014-Ohio-3628, ¶ 10; State v. Iacona, 93 Ohio St.3d 83,
93 (2001). “The state is only required to present ‘sufficient credible evidence’ to
establish probable cause.” In re B.A.T., 2023-Ohio-3366, ¶ 19 (8th Dist.), quoting
State v. Martin, 2022-Ohio-4175, ¶ 30.
“‘Probable cause is a flexible concept grounded in fair probabilities
which can be gleaned from considering the totality of the circumstances.’” In re J.R.,
2021-Ohio-2272, at ¶ 32 (8th Dist.), quoting In re B.W., 2017-Ohio-9220, ¶ 20 (7th
Dist.). As this court emphasized in In re J.R., which likewise included an
identification made by a nontestifying individual:
Given that a probable cause hearing is non-adjudicatory, the evidence
presented at a probable cause hearing need not meet the same
standards required for admissibility at trial. Confrontation clause
standards for the admissibility of evidence and the Ohio Rules of
Evidence do not apply to probable cause hearings.
In re J.R. at ¶ 37, citing State v. Powell, 2021-Ohio-200, ¶ 23 (4th Dist.), citing State
v. Burns, 2020-Ohio-3966, ¶ 74 (8th Dist.). See also In re B.A.T. at ¶ 24.
At the bindover hearing, the State called Detective Hayduk, who
testified regarding the video-surveillance footage of the homicide and certain
forensic evidence. With respect to identity, Detective Hayduk testified to his
communications with Shaker Heights police officer Johnnaya Norton. Appellant
had been arrested by Shaker Heights police during a traffic stop and was found to
be carrying a firearm that matched shell casings in an East Cleveland shooting that
occurred in January 2023. Certain shell casings at the East Cleveland scene
matched casings found at the In & Out Beverage homicide scene, and an individual
with the same first name as one of appellant’s codefendants in this case, K.M., was
listed as a suspect in the East Cleveland shooting along with appellant. (Oct. 2, 2023
juvenile court tr. 20-22 and 55-56.) Detective Hayduk sent Officer Norton
“photographs from the scene in an attempt to ID any of the individuals caught on
camera.” (Oct. 2, 2023 juvenile court tr. 34.) The stills provided, identified as State’s
exhibit Nos. 43-54, depict all three perpetrators, not just appellant. Hayduk testified
that Officer Norton identified the person in the blue hoodie as appellant. He further
testified regarding forensic links between the red Kia and appellant (i.e., DNA found
on the vehicle and on a Faygo soda bottle) and the referenced shell casings that tied
a gun to both the shooting in East Cleveland and the shooting in this case.
The juvenile court found that “based on the totality of the evidence,”
including the DNA evidence and the commonality of a handgun across crime scenes,
there was probable cause for bindover. (Oct. 2, 2023 juvenile court tr. 77-78.) The
juvenile court actually minimized its reliance on the surveillance stills, indicating
“that’s not the best photo,” and did not mention the identification by Shaker Heights
Officer Norton. It bluntly stated, “[Y]ou don’t have to.” (Oct. 2, 2023 juvenile court
tr. 78.)
The testimony and exhibits, including forensic evidence, were
sufficient to show a “fair probability” that appellant committed the charged category
one offenses. See In re J.R., 2021-Ohio-2272, at ¶ 32 (8th Dist.).4 Appellant’s
arguments to the contrary essentially invite us to conduct a manifest-weight review.
“We do not apply a manifest-weight-of-the-evidence standard of review,” however,
because “the Ohio Supreme Court [has] explained that it is not possible to conduct
a manifest-weight review of the evidence presented during the probable-cause
portion of a juvenile-bindover hearing because the state is not required to marshal
all of its evidence at the probable-cause phase of the proceedings.” In re B.A.T.,
2023-Ohio-3366, at ¶ 19 (8th Dist.), citing Martin, 2022-Ohio-4175, at ¶ 30. “[T]he
juvenile court’s role in the bindover hearing is that of a gatekeeper as opposed to the
ultimate trier of fact.” In re B.A.T. at ¶ 19, citing Martin at ¶ 31.
Appellant’s fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that 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
convictions having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
4 The juvenile court also properly found that the State presented sufficient evidence
to support mandatory bindover on the charged category two offenses pursuant to R.C.
2152.12(A)(1)(b)(ii). In addition to being 16 years of age or older, appellant was “alleged
to have had a firearm on or about the child’s person or under the child’s control while
committing the act charged and to have displayed the firearm, brandished the firearm,
indicated possession of the firearm, or used the firearm to facilitate the commission of the
act charged.” R.C. 2152.10(A)(2)(b).
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
DEENA R. CALABRESE, JUDGE
EILEEN T. GALLAGHER, P.J., and
EMANUELLA D. GROVES, J., CONCUR