The opinion
Whiteside, Judge,
dissenting.
{¶ 52} Being unable to concur in the conclusions reached in the main or the concurring opinions, I must respectfully dissent.
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{¶ 53} R.C. 2152.12 has been amended to require that a delinquent child who is 16 or 17 years of age, who is charged with committing an act that would be attempted murder if committed by an adult, must be transferred for trial as an adult provided that there is probable cause to believe that the child committed the act charged. Nevertheless, the proper standard of review in this case is abuse of discretion rather than purely a question of law for two reasons: (1) abuse of discretion is the only error alleged by appellant, the prosecution, for reversal of the trial court, and (2) it is the proper standard of review of a trial court determination of probable cause, assuming the prosecution has the right to appeal the trial court’s probable-cause determination. Furthermore, the amendment to R.C. 2152.12 eliminated the discretion of the juvenile court to determine not to transfer the case when the juvenile was amenable to juvenile treatment.
{¶ 54} The single assignment of error raised by appellant is that “[t]he juvenile court abused its discretion when it failed to find probable cause on the charge of attempted murder.” No other error is asserted by appellant. Second, abuse of discretion is the proper standard of review of a trial court determination that probable cause exists when such a question is properly appealable to an appellate court. This is true because the determination of probable cause is based upon the evidence adduced and certain factual findings necessarily made by the trial court as to whether the prosecution has shown probable cause that the accused has committed the offense with which he or she is charged. This determination requires a limited weighing of the evidence.
{¶ 55} When the standard of review is abuse of discretion, a reviewing court must accept the trial court’s determination unless the trial court acts in an unreasonable, arbitrary, or unconscionable manner. See
State v. Finnerty
(1989), 45 Ohio St.3d 104 , 543 N.E.2d 1233 . In
State v. Montgomery
(1991), 61 Ohio St.3d 410, 413 , 575 N.E.2d 167 , the Ohio Supreme Court, quoting from
State v. Adams
(1980), 62 Ohio St.2d 151, 157 , 16 O.O.3d 169 , 404 N.E.2d 144 , stated: “The term ‘abuse of discretion’ ‘ * * * connotes more than an error of law or of judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’ ”
{¶ 56} In this case, there was no direct evidence as to defendant’s intent, as is rarely the case, but there was evidence from which the trial court could have inferred that appellee had the requisite intent. However, whether to make an inference from the evidence is a question for determination by the trial court, not this court. There is also evidence before the trial court suggesting that appellee did not have the requisite intent, but instead was shooting into the ground in order to scare the alleged attackers, and the bullet that struck one of the attackers could have ricocheted. In light of the totality of the evidence, I am unable to find that the trial court’s attitude was unreasonable, arbitrary, or
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unconscionable. Because there was an evidentiary basis for the trial court’s determination, even though there also is an evidentiary basis for the determination that the appellant seeks, this court is not permitted to substitute its judgment for that of the trial court since the standard of review is abuse of discretion. Accordingly, being unable to find an abuse of discretion on the part of the trial court, I would overrule appellant’s assignment of error and affirm the judgment of the trial court from which this appeal is taken.