The opinion
[Cite as State v. Taylor, 2022-Ohio-2877.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-396
v. : (C.P.C. No. 17CR-3590)
Damon L. Taylor, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on August 18, 2022
On brief: [G. Gary Tyack], Prosecuting Attorney, and
Seth L. Gilbert, for appellee.
On brief: Carpenter Lipps & Leland, LLP, Kort Gatterdam,
and Erik P. Henry, for appellant.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, Damon L. Taylor, appeals the judgment of the Franklin
County Court of Common Pleas following a juvenile bindover and a jury trial. The jury
found him guilty of murder with firearm specification and the court sentenced him to a 15-
years-to-life term, consecutive to a three-year term for the specification. Taylor asserts nine
assignments of error with the trial court's judgment:
[I.] Mandatory bindovers under R.C. 2152.12(A)(1)(a)(i)
violate due process and equal protection rights guaranteed
under the United States and Ohio Constitutions.
[II.] The juvenile court erred by finding probable cause, on a
complicity theory, existed to transfer this matter to adult court
in violation of the Fifth and Fourteenth Amendments to the
United States Constitution and Article I, Section 16 of the Ohio
Constitution.
No. 19AP-396 2
[III.] The trial court erred in denying appellant's motion to
suppress statements.
[IV.] The trial court abused its discretion by allowing
testimony regarding Snapchat from a witness when there was
a lack of foundation and lack of qualification of the testifying
witness contrary to the Due Process Clause of the Ohio and
United States Constitutions.
[V.] The prosecutor engaged in misconduct during closing
argument resulting in a denial of appellant's right to Due
Process.
[VI.] The trial court erred in providing a limiting instruction
regarding law enforcement's interrogation tactics.
[VII.] Appellant was deprived of the effective assistance of
trial counsel in violation of appellant's rights under the Sixth
and Fourteenth Amendments to the United States
Constitution, and Section 10 and 16, Article I of the Ohio
Constitution.
[VIII.] The trial court violated appellant's rights to due process
and a fair trial when it entered a judgment of conviction based
on insufficient evidence and against the manifest weight of the
evidence in violation of appellant's rights under the United
States and Ohio Constitutions.
[IX.] The imposition of an indefinite prison sentence of 15
years to life for murder violated the Eighth Amendment to the
United States Constitution.
{¶ 2} Plaintiff-appellee, State of Ohio, alleged that on April 15, 2016, Taylor shot
and killed Enrique Straughter. The facts at trial indicated that late in the evening of April
14, 2016, Taylor either stole or borrowed his mother's car, which happened to contain his
stepfather Michael Jackson's firearm, a Smith & Wesson MP40 semiautomatic pistol.
Taylor met up with his friend (and his sister Dasha's boyfriend) Damion Wade, went to the
home of his two sisters Dasha and Asha on Commons Road, and drank and smoked
marijuana with Wade and Asha. At some point Taylor became agitated about the loss of a
chain that he owned and apparently believed that it had been stolen by Straughter, whom
he had considered a friend. Straughter lived in the same apartment complex as Dasha and
Asha, on Lavenham Road, which is well within walking distance of Commons Road.
No. 19AP-396 3
{¶ 3} Shortly after midnight on April 15, 2016, Reynoldsburg police were called to
Lavenham on report of a shooting. They discovered Straughter on the ground with gunshot
wounds, at the time still alive and struggling to breathe. He was pronounced dead shortly
thereafter. Crime scene investigators examining the immediate area found three .40 caliber
shell casings, four unfired .40 caliber bullets, a broken pistol slide rail, two red Nike Jordan
sandals, and an electronic Chevrolet key fob. (See State's Ex. B to Bindover Hearing.) The
key fob triggered the locks of a Chevy Malibu awkwardly parked about 200 feet away. The
car belonged to Taylor's mother, who reported the car stolen at approximately 3:30 a.m. on
April 15, 2016 and also reported Taylor himself as missing since 11:45 the prior evening.
She apparently followed up with the police to report that Taylor had not reported to school
on April 15 either.
{¶ 4} Based on this evidence, Reynoldsburg police obtained a search warrant for
the apartment belonging to Taylor's two sisters. When they arrived at the apartment to
execute the warrant, Taylor was there. It is unclear whether Taylor was arrested before or
during the search of the apartment, but notwithstanding, police seized several cell phones
from the apartment, one of which tied to a Bluetooth device and identified as "Damon
Taylor." Police were eventually able to extract several Snapchat photos from this phone—
one the photos, time-stamped on April 14, 2016 at 11:33 p.m., shows a hand holding a Smith
& Wesson pistol inside a Chevrolet, and another photo, taken at 10:55 a.m. on April 15
depicts Taylor laying back on a couch with his hand across his chest, and is captioned: "They
tryna take me for murda." (State's Ex. C2 and C4 to Bindover Hearing.) Police were also
able to extract messages from the phone, which depicted the following conversation:
ME: I'm not on god I left my gun in the car and someone shot
some one with it and took off in the whip I go see a lawyer in
like 30 mij
OFF: Why do you have a gun
ME: It was my stepdads he left it in the car and then I left the
doors unlock
And got high fell asleep woke up to some bad news
No. 19AP-396 4
(State's Ex. C3 to Bindover Hearing.) Subsequent DNA tests on the gun rail were found to
contain a two-person DNA mixture, and the major contributor was identified as Straughter,
while the minor contributor was identified as Taylor. (Apr. 12, 2019 Tr. at 1085.)
{¶ 5} After he was arrested, Taylor was taken to the police station for interrogation.
(State's Ex. B to Mar. 15, 2018 Mot. Hearing; see also State's Ex. C(1) to Mar. 15, 2018 Mot.
Hearing at 14:14 et seq.) A video of the encounter demonstrates some discussion prior to
Taylor being provided any Miranda warnings about him being named as a missing person
and a suspect in the auto theft, and also that he is a person of interest in a homicide. Taylor,
then a minor, requests to call his mother and his stepfather. He also seems to dispute any
knowledge of where the automobile is parked, although the video is not clear on this point.
The video does clearly demonstrate that two police officers told Taylor that he was a murder
suspect and that they had witnesses to that effect.
{¶ 6} Prior to providing Taylor any Miranda warnings, the officers tell him that
they would like to hear "his side of the story" while it's "fresh in his mind." Taylor states
that he is willing to talk to them about what happened the prior night and that he did not
care about witnesses, but also that "I already talked to my lawyer." Subsequently,
Reynoldsburg Police Detective Tim Doersam begins to read the Miranda form to Taylor,
who agrees that he understands all of them, but then repeatedly states that he wants his
lawyer to be present. Detective Doersam then goes back to the top of the form to fill in his
identifying information. Taylor repeatedly indicates that he will not talk without a lawyer.
Detective Doersam and the other officer push him to talk even after he says he's not going
to talk without his lawyer present, and suggest that Taylor's mother might get charged with
some offense. After they indicate on the Miranda form that Taylor refuses to talk to them
without an attorney present, they seek and obtain his consent for a DNA swab, test him for
gunshot residue, and continue to encourage him to talk to them and ask him questions
about the case. Taylor engages with them somewhat but is consistent about his desire to
talk to his attorney and also his mother and is largely silent. After approximately one and
one-half hours the video ends, and Taylor is told that his lawyer had arrived and was coming
in. The trial court found that shortly thereafter, "counsel advised the detectives that
Defendant would not consent to be interviewed, and ultimately, Defendant was released to
his counsel. Over the next eight months, police continued to investigate Mr. Straughter's
No. 19AP-396 5
death. During that time, Defendant's counsel advised both the detectives and the Assistant
Prosecuting Attorney that Defendant would not consent to an interview or proffer." (Nov.
05, 2018 Order & Entry at 4.)
{¶ 7} But on December 12, 2016, charges were filed against Taylor, he was again
arrested, and was again interrogated by Detective Doersam. This interrogation was also
videotaped, and when Detective Doersam went over the Miranda rights form this time,
Taylor signed the waiver and talked with the police. (State's Ex. E to Mar. 15, 2018 Mot.
Hearing; see also State's Ex. C(2) to Mar. 15, 2018 Mot. Hearing at 11:25:15 et seq.) Taylor
filed a motion to suppress evidence, and at a motion hearing Detective Doersam admitted
that after April 15, 2016, he was aware that Taylor was represented by an attorney and that
he had subsequent contacts with that attorney, but claimed that when Taylor was arrested
on December 12, 2016, he did "not a hundred percent" know that the attorney he had been
dealing with was still representing Taylor on that date. (Mar. 14 and 15, 2018 Tr. at 36.) He
admitted that he knew that Taylor's attorney had been "actively involved in the case," id. at
78, that the prosecutor had previously reached out to Taylor's attorney to request that
Taylor give a statement about the case to the prosecutor and Detective Doersam, id., that
he had a meeting with the prosecutor's office in December prior to filing the charges against
Taylor, id. at 79, that at the time the charges were approved by the prosecutor and filed, he
knew Taylor's attorney "had represented him up until the last time I talked to you," id. at
80, and that no one had ever communicated to him that Taylor was no longer represented
by his attorney, id at 81. Finally, Detective Doersam admitted that he made no attempt to
contact Taylor's attorney:
[Dodgion]: Okay. You didn't contact me, correct?
[Detective Doersam]: Correct.
Q: You didn't make an attempt to contact me, correct?
A: Correct.
Q: Mr. -- As far as you know, nobody from the county
prosecutor's made an attempt to contact me, correct?
A: Correct.
Q: And on your direct examination, you kind of intimated or
implied that, eh, at that point in time I really didn't know who
No. 19AP-396 6
was representing him or whether or not Mr. Dodgion was
representing him, didn't you, yesterday?
A: I said I could not be a hundred percent at that point.
Q: Okay. Fair enough. That was your answer. But, again,
nobody had told you differently, right?
A: Correct.
Q: Okay. And you didn't even ask Damon Taylor whether or not
I was still representing him, did you?
A: I don't believe so.
Q: And that's because you didn't want the answer, right?
A: It's because it's his decision.
Q: But you didn't ask because you didn't want the answer,
correct?
A: I don't -- I didn't -- more because I don't think the decision
mattered -- or the answer didn't matter that much.
Q: It didn't matter. So if you would have asked him, hey, you
know, we got you down here, we know that Mr. Dodgion was
representing you in the past and up 'til a month or so ago. Is he
still representing you, by the way? You know that if he'd -- if
you'd asked that question and he answered, yes, Mr. Dodgion
is representing me everything stops, right?
A: I -- Not -- No.
(Mar. 14 and 15, 2018 Tr. at 84-85.)
{¶ 8} Because Taylor was a juvenile at that time Straughter was killed, the case was
filed in juvenile court as a mandatory bindover offense. But on December 22, 2016, the
Supreme Court of Ohio issued State v. Aalim, 150 Ohio St.3d 463, 2016-Ohio-8278 ("Aalim
I"), and held Ohio's mandatory bindover statute to be unconstitutional. A probable cause
hearing commenced in juvenile court and on April 28, 2017, that juvenile court found there
was probable cause to bind Taylor over for the crime of complicity to murder with
specification. Then, on May 25, 2017, the Supreme Court reconsidered Aalim I, reversed
its earlier decision, and determined that Ohio's mandatory bindover statute was
constitutional. See State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956 ("Aalim II").
No. 19AP-396 7
Subsequently, in accordance with Aalim II the juvenile court transferred jurisdiction of the
case to the general division without proceeding to an amenability determination.
{¶ 9} Because it had found that there was conflicting evidence about whether
Taylor or Wade shot Straughter, when the juvenile court relinquished jurisdiction over the
case it found probable cause for complicity rather than purposeful murder.
Notwithstanding this ruling, on June 30, 2017 Taylor was indicted by the General Division
of the Franklin County Court of Common Pleas for aggravated murder, purposeful murder,
and felony murder by felonious assault, each with a three-year gun specification. Following
a trial, Taylor was found guilty by a jury of felony murder by felonious assault with gun
specification, and was found not guilty of the two other charges and specifications. On
May 28, 2019, the trial court sentenced Taylor to 15 years to life plus 3 mandatory and
consecutive years on the gun specification, for an aggregate sentence of 18 years to life.
{¶ 10} In his first assignment of error, Taylor claims the Ohio mandatory-bindover
procedures in Ohio do not satisfy either procedural or substantive due process under
Mathews v. Eldridge, 424 U.S. 319, 335 (1976), and United States v. Kent, 383 U.S. 541,
557-61 (1966). But the argument presented in this assignment of error has already been
rejected by the Supreme Court, see Aalim II, and Taylor admits in his brief that he "raises
this issue in order to preserve it for further review." (Appellant's Brief at 17.)
{¶ 11} The only difference between this case and Aalim II is that this case
commenced after the release of the Aalim I opinion, but before the Supreme Court granted
reconsideration, vacated Aalim I, and issued Aalim II. At the time the probable cause
hearing was held in juvenile court Aalim II had not yet been decided, and the juvenile court
was operating under discretionary bindover proceedings in accordance with Aalim I.
Taylor argues that because the probable cause phase of his case was held and decided
pursuant to Aalim I that the intervening decision in Aalim II finding the mandatory
bindover statute to be constitutional does not apply to his case.
{¶ 12} We disagree. Until the Supreme Court issues a mandate in the underlying
case, its decisions are subject to review and revision. See S.Ct.Prac.R. 18.04(A). Here, the
mandate did not issue until ten days after the Court issued Aalim II. See case No. 2015-
0677, https://www.supremecourt.ohio.gov/Clerk/ecms/#/caseinfo/2015/0677. See also
Painter and Pollis, Ohio Appellate Practice, Section 8:53 ("If a motion for reconsideration
No. 19AP-396 8
is filed and granted, the mandate issues 10 days after entry of the ultimate judgment.").
This court has previously observed that the "controlling date" of aSupreme Court decision
"is that upon which the Supreme Court issued its mandate to the lower court." State v.
Mackert, 10th Dist. No. 77AP-922 (May 23, 1978), 1978 Ohio App. LEXIS 10611 *2, citing
State v. Watson, 48 Ohio App.2d 110 (6th Dist.1975). Moreover, "[t]he general rule is that
a decision of a court of supreme jurisdiction overruling a former decision is retrospective
in its operation, and the effect is not that the former was bad law, but that it never was the
law." Peerless Elec. Co. v. Bowers, 164 Ohio St. 209, 210 (1955). For these reasons, the
juvenile court's determination that Aalim II controlled the decision to relinquish
jurisdiction was correct, and Taylor's first assignment of error must be overruled.1
{¶ 13} In Taylor's second assignment of error, he challenges the merits of the
juvenile court's bindover decision. In In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307,
the Supreme Court reviewed the statute and caselaw regarding the standard of review for
juvenile court probable-cause determinations, and concluded that "a juvenile court's
probable-cause determination in a mandatory-bindover proceeding involves questions of
both fact and law, and thus, we defer to the trial court's determinations regarding witness
credibility, but we 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. at ¶ 51, and observed that the state " 'must provide credible evidence
of every element of an offense to support a finding that probable cause exists to believe that
the juvenile committed the offense before ordering mandatory waiver of juvenile court
jurisdiction * * * [it] 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 (2001).
1 We are mindful of the fact that on April 12, 2022, the Supreme Court heard oral argument on a proposition
of law asserting that Aalim II was wrongly decided and must be overruled. See generally, case No. 2021-0579,
State v. Bunch, https://www.supremecourt.ohio.gov/Clerk/ecms/#/caseinfo/2021/0579 and Brief of
Appellant at 22 (stating Proposition of Law No. II, "A child cannot be transferred to adult court without a
finding that they are not amenable to treatment in juvenile court.")
https://www.supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=910526.pdf&subdirectory=2021-
0579\DocketItems&source=DL_Clerk. The case is currently awaiting decision, and unless and until the Court
issues a decision in that case adopting that proposition of law, Aalim II remains controlling law regarding
Taylor's first assignment of error.
No. 19AP-396 9
{¶ 14} Taylor argues that there was insufficient evidence presented at the bindover
hearing to establish he was complicit to the purposeful murder of Straughter. The juvenile
court did not find that there was sufficient evidence to establish that Taylor actually pulled
the trigger and shot Straughter, but did find that the gun belonged to Taylor's stepfather,
that Taylor had held the gun less than an hour before the murder occurred, and that Taylor
was found in the vicinity of the murder shortly after it occurred.2 Taylor argues the juvenile
court erred in finding probable cause that he was complicit in the murder of Straughter,
and argues that "[i]f there was a plan to rob and/or shoot Straughter, there is no evidence
Taylor was part of it." (Appellant's Brief at 25.)
{¶ 15} But probable cause is a low and flexible standard, and the fact that Taylor had
possession of both the gun and the motor vehicle used in Straughter's death immediately
prior to the shooting, as well as his continued presence in the vicinity of the shooting is
certainly evidence of Taylor's complicity to the crime. Moreover, Taylor admitted during
his December 12, 2016 interrogation to believing that a shootout would happen that
evening because Straughter possessed a gun, implying that he had some foreknowledge of
a plan to confront Straughter. It is unnecessary for the state to prove its case beyond a
reasonable doubt at this stage of the proceedings, see, e.g., In re D.M, 140 Ohio St.3d 309,
2014-Ohio-3628, ¶ 10, and the record establishes the trial court correctly concluded that
the state presented probable cause sufficient to show Taylor's complicity to Straughter's
murder.
{¶ 16} And in a different case, this conclusion might end our inquiry into Taylor's
second assignment of error. But on February 3, 2022, the Supreme Court of Ohio issued
the decision in State v. Smith, __ Ohio St.3d __, 2022-Ohio-274, which complicates our
analysis of the probable-cause question. Accordingly, we ordered the parties to submit
post-argument supplemental briefing specifically on Smith and its application to the
pending case.
{¶ 17} R.C. 2152.02 requires mandatory bindover and transfer of jurisdiction of "the
act charged" if there is a finding of probable cause on that act. Subsection A of the statute
2 Evidence used at the probable cause hearing included Detective Doersam's testimony summarizing the
statements made by Taylor during the December 12, 2016 interrogation challenged in his third assignment of
error. During that interrogation, Taylor admitted that he was present and saw Wade shoot Straughter. Taylor
does not challenge the use of those statements under this assignment of error; instead, he relies on them in
his argument. (Appellant's Brief at 25.)
No. 19AP-396 10
defines the "act charged" as "the act that is identified in a complaint, indictment, or
information alleging that a child is a delinquent child." In Smith, the court concluded that
based on R.C. 2152.02(A), "a juvenile court may transfer a case or a matter to adult court,
but the adult court's jurisdiction is limited to the acts charged for which probable cause
was found." (Emphasis added.) Id. at ¶ 29. The court therefore held that "[i]n the absence
of a juvenile court's finding probable cause * * * no adult court has jurisdiction over acts that
were charged in but not bound over by the juvenile court." Id. at ¶ 44.
{¶ 18} Smith's interpretation of R.C. 2152.02 is rooted in the historical
understanding and policy upon which juvenile court jurisdiction in Ohio is based. As Ohio
courts have repeatedly recognized, "the very purpose of the state juvenile code is to avoid
treatment of youngsters as criminals and insulate them from the reputation and
answerability of criminals." (Internal quotations omitted.) Smith at ¶ 2, quoting State v.
Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, ¶ 19, and In re Agler, 19 Ohio St.2d 70, 80
(1969). For this reason, the juvenile statutes are to be "liberally interpreted and construed
so as to * * * provide judicial procedures through which Chapters 2151 and 2152 of the
Revised Code are executed and enforced, and in which the parties are assured of a fair
hearing, and their constitutional and other legal rights are recognized and enforced." R.C.
2151.01(B) (quoted in Smith at ¶ 19). Moreover, in interpreting and applying the juvenile
court statutes, courts have consistently construed those statutes in favor of the due process
rights of juveniles and the jurisdiction of juvenile courts. See Agler at 72, citing Prescott v.
State, 19 Ohio St. 184 (1869); State v. Worden, 162 Ohio St. 593, 596 (1955) (observing that
since 1931, Ohio statutes have granted exclusive jurisdiction with respect to felony charges
against minors with the juvenile court); State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544,
syllabus (waiver of right to amenability hearing in discretionary bindover must be express
and on record following colloquy and inquiry by court); In re M.P., 124 Ohio St.3d 455, 2010-
Ohio-599, syllabus (denial of a motion for discretionary bindover based on amenability to
treatment is not appealable by the state); State v. Wilson, 73 Ohio St.3d 40 (1995), syllabus
(absent a proper bindover procedure juvenile court has exclusive subject-matter
jurisdiction over any case concerning a child alleged to be a delinquent and subject-matter
jurisdiction cannot be waived); Iacona, 93 Ohio St.3d 83, paragraphs one and three of the
syllabus (holding that the state has a duty "to disclose to a juvenile respondent all evidence
in the state's possession favorable to the juvenile respondent and material either to guilt or
No. 19AP-396 11
punishment that is known at the time of a mandatory bindover hearing" and that it "must
provide credible evidence of every element of an offense to support a finding that probable
cause exists to believe that the juvenile committed the offense before ordering mandatory
waiver of juvenile court jurisdiction"); D.M., 2014-Ohio-3628, ¶ 2 (holding that Juv.R. 24
applies to bindover hearings and that the court must hold an in camera inspection to
determine whether disputed evidence is discoverable under the rule); and State v. Hanning,
89 Ohio St.3d 86 (2000) (restricting application of complicity statute in bindover
proceedings where the legislature has not provided for such use).
{¶ 19} Mindful of this jurisprudential background, we must consider how Smith's
dictate that "no adult court has jurisdiction over acts that were charged in but not bound
over by the juvenile court" applies to the juvenile court's bindover order in this case. Id. at
¶ 44. Here, the "act charged" in Taylor's juvenile complaint was purposeful murder in
violation of R.C. 2903.02(A), see In re Taylor, Franklin C.P. No. 16JU-14766 (Dec. 12, 2016
Compl.), but the juvenile court specifically found only "probable cause to believe that the
Child committed * * * COMPLICITY TO MURDER in violation of Section 2923.03(A) as it
relates to Section 2903.02(A)." In re Taylor, Franklin C.P. No. 16JU-14766 (June 8, 2017
Entry Sustaining State of Ohio's Mot. to Relinquish Jurisdiction Filed December 13, 2016 at
1.). And while under R.C. 2923.03(F), "[a] charge of complicity may be stated in terms of
this section, or in terms of the principal offense," Taylor's indictment in the general division
stated all of the alleged offenses (including his eventual offense of conviction) without
reference to complicity. His indictment simply charges him with aggravated murder in
violation of R.C. 2903.01, purposeful murder under R.C. 2903.02(A), and felony murder by
felonious assault under R.C. 2903.02(B). See State v. Taylor, Franklin C.P. No. 17CR-3590
(June 30, 2017 Indictment.). And as stated above, Taylor was ultimately found guilty of
felony murder as a principal offender rather than as a complicitor. (June 24, 2019 Am. Jgmt.
Entry at 1.) Accordingly, as it relates to this case, the question presented by Smith is whether
complicity to purposeful murder under R.C. 2903.02(A) is an equivalent "act charged" to
felony murder by felonious assault under R.C. 2903.02(B).
{¶ 20} Although State v. Hanning, 89 Ohio St.3d 86 (2000), interpreted and
applied a version of the bindover statute that has since been superseded and restructured,
it is instructive to the resolution of this question. In Hanning, the 17-year-old defendant
No. 19AP-396 12
was charged as a juvenile with delinquency by aggravated robbery. Hanning was armed
with a pellet gun, but his codefendant was armed with a handgun. The state filed a motion
for mandatory transfer of Hanning for prosecution as an adult, arguing both that he was
subject to transfer because under a R.C. 2923.03 complicity theory he qualified as a " 'child
[that] is 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 * * * used the firearm to facilitate the
commission of the act charged' " pursuant to former R.C. 2151.26(B)(4)(b), see id. at 91,
(emphasis sic) and also that because "if the charge of a certain offense would trigger the
mandatory bindover provision of [former] R.C. 2151.26, then the charge of complicity in
that offense, pursuant to R.C. 2923.03, also triggers the mandatory bindover provision."
Id. at 92. Hanning was bound over, indicted, tried and convicted in adult court, but on
appeal this court reversed. See generally State v. Hanning, 10th Dist. No. 98AP-380
(Feb. 9, 1999) 1999 Ohio App. LEXIS 400.
{¶ 21} And on appeal by the state, the Supreme Court affirmed our judgment.
Analyzing both arguments, the court first held that the plain language of former R.C.
2151.26(B)(4)(b) "does not provide that a child can be bound over based on the fact that a
firearm was used by an accomplice," Hanning, 89 Ohio St.3d at 91. But the court also went
on to hold that "the complicity statute, R.C. 2923.03, does not apply to the juvenile bindover
criteria set forth in [former] R.C. 2151.26." Id. at 94. The court observed:
To require bindover for a child based on an adult accomplice's
decision to use a firearm through application of the complicity
statute runs contrary not only to the doctrine of parens patriae,
upon which the General Assembly built the juvenile criminal
justice system, but to common sense.
Our holding does not allow Hanning or other juveniles to
escape responsibility for their own actions. We merely find that
the legislature did not intend to automatically attribute
responsibility to the juvenile for the actions of his or her
accomplice * * *. Juveniles in Hanning's situation are still
subject to transfer to adult court under [former] R.C.
2151.26(C), which provides that a child who commits a felony
can be bound over if he is fourteen years of age or older and the
results of an investigation and hearing indicate reasonable
grounds to believe that the child is not amenable to care or
rehabilitation in the juvenile system and the safety of the
community requires that the child be placed under legal
No. 19AP-396 13
restraint, including, if necessary, for a period extending beyond
the child's majority.
(Emphasis added).3 Id. at 93.
{¶ 22} The existence of juvenile court is premised on the legislature's public policy
judgments that children have a far greater need for protection and a far greater capacity for
redemption than adults.
Juvenile courts hold a unique place in our legal system. They
are legislative creatures that eschewed traditional, objective
criminal standards and retributive notions of justice * * *. The
overriding purposes for juvenile dispositions are to provide for
the care, protection, and mental and physical development of
children subject to [R.C. Chapter 2152], protect the public
interest and safety, hold the offender accountable for the
offender's actions, restore the victim, and rehabilitate the
offender. R.C. 2152.01(A).
We should respect those stated statutory purposes when
examining, applying, and, when necessary, interpreting the
statutes for juvenile bindovers for prosecution in adult court.
This bindover process is based first on the juvenile court's
finding of probable cause to believe that the child committed
the act charged. A juvenile court's finding of probable cause
and subsequent bindover of the child are not an open invitation
for the adult court to treat the child as if his or her bindover to
adult court is the child's first encounter with a tribunal for the
acts named in the bindover order—there are limitations.
Juvenile bindover does not open the door to prosecution in
adult court for any charge the state might later seek in an
indictment.
3 We are mindful that Hanning concerned bindover for a "category two" offense, which under both former
and current statutes mandated bindover for a 16 year old only when the alleged delinquent had already been
committed to the custody of the department of youth services for a prior offense or the alleged delinquent
used a firearm in the commission of the offense. As such, it does not directly control Taylor's case, since
murder is a "category one" offense with no such qualifiers for bindover. Compare former R.C. 2151.26 with
R.C. 2152.02(AA) and (BB), 2152.10(A), and 2152(A)(1)(a). But we believe that Smith's holding that "the adult
court's jurisdiction is limited to the acts charged for which probable cause was found," Smith, 2022-Ohio-
274 at ¶ 29, complements and reinforces Hanning's core holding that "the complicity statute, R.C. 2923.03,
does not apply to the juvenile bindover criteria set forth in [the bindover statutes]." Hanning, 89 Ohio St.3d
86, paragraph two of the syllabus. Both rules rest upon and clearly demonstrate the principle that bindover is
a narrow exception to be construed strictly against transfer out of the juvenile court's parens patriae
jurisdiction. See Smith at ¶ 1-2 and Hanning at 88-89. And the legislature approves of this understanding the
juvenile court's statutory jurisdiction—since Hanning was issued, the legislature has amended the bindover
statute several times (and has in fact recodified the entire juvenile code), but it has taken no steps to supersede
or modify Hanning's holding.
No. 19AP-396 14
(Internal citations and quotations omitted, emphasis added.) Smith at ¶ 2. Pursuant to
Smith and in furtherance of the legislative purposes set forth in R.C. Chapter 2152, we
conclude that complicity to purposeful murder under R.C. 2903.02(A) is not an equivalent
"act charged" to felony murder by felonious assault under R.C. 2903.02(B) for purposes of
transferring jurisdiction of Taylor from the juvenile division to the general division of the
Franklin County Court of Common Pleas. Accordingly, we sustain Taylor's second
assignment of error. The judgment of the common pleas court is vacated, and this case is
returned to the juvenile court for further consideration.
{¶ 23} Taylor's third assignment of error asserts that his rights under the Fifth and
Sixth Amendments to the United States Constitution were violated when he was
interrogated on December 12, 2016. He contends that all statements he made while in
police custody on December 12, 2016, and evidence obtained as a result of his statements
must be suppressed because he had invoked his Fifth and Sixth Amendment rights when
he was initially arrested on April 15, 2016.
{¶ 24} Taylor argues that subsequent to his April 15 arrest and invocation of right to
counsel, his attorney advised the Assistant Prosecuting Attorney and detectives that Taylor
intended to continually invoke said rights. The state does not contest the fact that Taylor
invoked his right to counsel after his April arrest, but instead directs the court to
defendant's statement of Miranda rights and waiver form executed on December 12, 2016,
in which Taylor purportedly waives his Fifth and Sixth Amendment rights. The state
further points to the recording of the December 12, 2016 interview in which Taylor was read
his Miranda rights, and neither requested counsel nor exercised his right to remain silent.
On consideration of Taylor's motion to suppress, the trial court ruled as follows:
This Court has reviewed the recordings of both the April 15,
2016 and December 12, 2016 interviews - multiple times -
together with both Statement of Miranda Rights and Waiver
Forms, the testimony received at the hearing, and the
arguments of counsel. In doing so, the Court noted the passage
of time between interview[s] within which Defendant reached
the age of majority; Defendant's ability to invoke his rights in
April 2016; Defendant's demeanor; Defendant's responses and
voluntary communications; as well as police conduct. In
consideration of these factors, the Court reaches the conclusion
that under the totality of the circumstances, Defendant
knowingly and voluntarily executed the Statement of Miranda
No. 19AP-396 15
Rights and Waiver Form on December 12, 2016. As a result of
such waiver, Defendant's statements made at the December 12,
2016 interview are admissible, and Defendant's motion to
suppress with respect thereto is DENIED.
(Emphasis sic.) (Nov. 05, 2018 Order & Entry at 12-13.)
{¶ 25} Our review of the record demonstrates that both Taylor's trial counsel and
the trial prosecutor believed this case was controlled by Edwards v. Arizona, 451 U.S. 477
(1981), and Maryland v. Shatzer, 559 U.S. 98 (2010), which involve assertion of the right
to have counsel present during custodial interrogation and a subsequent resumption of
questioning following a break in custody. And although not cited in its entry, the fact that
the court used the "knowing and voluntary waiver" standard set forth in Edwards and
Shatzer reveals that the trial judge also relied upon those cases to deny Taylor's motion to
suppress.
{¶ 26} We believe the trial court correctly concluded that Edwards and Shatzer
control the Fifth Amendment half of this situation. Edwards creates a second-level
prophylactic rule following Miranda v. Arizona, 384 U.S. 436 (1966) that during custodial
interrogation following Miranda warnings, "when an accused has invoked his right to have
counsel present during custodial interrogation, a valid waiver of that right cannot be
established by showing only that he responded to further police-initiated custodial
interrogation even if he has been advised of his rights." Edwards v. Arizona, 451 U.S. at
484. The right to have counsel present under these circumstances is rooted in the Fifth
Amendment, not the Sixth. Id. at 482 ("Miranda thus declared that an accused has a Fifth
and Fourteenth Amendment right to have counsel present during custodial
interrogation."). Shatzer, in turn, creates a third-level bright-line rule that Edwards's Fifth
Amendment "presumption of involuntariness" does not apply if there has been a break in
custody of 14 days. Maryland v. Shatzer, 559 U.S. at 110 ("We think it appropriate to
specify a period of time to avoid the consequence that continuation of the Edwards
presumption 'will not reach the correct result most of the time.' It seems to us that period
is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal
life, to consult with friends and counsel, and to shake off any residual coercive effects of his
prior custody."). (Internal citations omitted.) Taylor was out of custody between April 15
and December 12, 2016, and under Shatzer that extended break rendered the Edwards
No. 19AP-396 16
presumption of involuntariness inapplicable to his custodial interrogation. Accordingly, the
trial court correctly determined that Taylor was able to knowingly and voluntarily waive his
Fifth Amendment right to c0unsel.
{¶ 27} But Miranda, Edwards, and Shatzer have only tangential application to the
Sixth Amendment right to counsel analysis once an adversarial proceeding for a specific
offense has commenced.4 See, e.g., Montejo v. Louisiana, 556 U.S. 778, 786 (2009).
Montejo held that a defendant who stood mute at his initial appearance at the time he was
appointed counsel had not ipso facto asserted his right to counsel for purposes of the Sixth
Amendment bar on interrogation by the state simply because counsel had been appointed.
The Montejo court set forth certain bedrock principles as to how the Sixth Amendment
right to counsel operates:
Under our precedents, once the adversary judicial process has
been initiated, the Sixth Amendment guarantees a defendant
the right to have counsel present at all "critical" stages of the
criminal proceedings. Interrogation by the State is such a stage.
Our precedents also place beyond doubt that the Sixth
Amendment right to counsel may be waived by a defendant, so
long as relinquishment of the right is voluntary, knowing, and
intelligent. The defendant may waive the right whether or not
he is already represented by counsel; the decision to waive need
not itself be counseled. And when a defendant is read his
Miranda rights (which include the right to have counsel
present during interrogation) and agrees to waive those rights,
that typically does the trick, even though the Miranda rights
purportedly have their source in the Fifth Amendment * * *.
The only question raised by this case, and the only one
addressed by the Jackson [475 U.S. 625 (1986)] rule, is whether
courts must presume that such a waiver is invalid under certain
circumstances.
(Citations omitted, emphasis sic.) Id. at 786-87. Montejo overruled Michigan v. Jackson,
475 U.S. 625 (1986), which had created a prophylactic rule forbidding police from
interrogating defendants who had requested counsel but had not yet consulted with
counsel. The defendant in Montejo, like the defendant in Jackson, had been appointed
4 In Edwards and Shatzer, no critical stage in the adversarial process against the defendants had yet
commenced—the second interview with Shatzer was purely investigatory and no charges were pending, and
the second interview with Edwards occurred prior to his indictment.
No. 19AP-396 17
counsel but had not yet been afforded the opportunity to consult with counsel. Montejo
held that defendants who had not yet consulted with counsel could still validly waive their
rights to counsel following Miranda warnings.
{¶ 28} Taylor's situation at the time of his December 12, 2016 interrogation was
quite different—not only had he already consulted with counsel, representatives of the state
had recognized and repeatedly dealt with that counsel, including the detective who
interrogated Taylor. Notwithstanding those differences, the Sixth Amendment as
described in Montejo controls this situation, and under that framework the analysis of
Taylor's Sixth Amendment claim is as follows: first, had his Sixth Amendment right to
counsel attached when he was arrested and interrogated on December 12, 2016; second,
did he assert those rights prior to the interrogation; and third, was his Miranda waiver
effective to knowingly, voluntarily, and intelligently waive his right the counsel?
{¶ 29} In juvenile cases, the adversarial proceeding generally commences not by the
issuance of an indictment, but simply by the issuance of complaint.5 And Montejo
5It is apparently for this reason that the state has argued to this court that Taylor's interrogation on December
12 preceded the filing of the complaint against him. (Appellee's Brief at 33.) Detective Doersam's testimony
at the suppression hearing and his statements on the video of the interrogation both indicate that the charges
were filed prior to 11:16 a.m. on December 12, 2016. (Mar. 14 and 15, 2018 Tr. of Suppression Hearing at 32,
79-80.) But the electronic time-stamp on the complaint indicates it was not filed until 9:21 p.m. that day, and
the state therefore argues that Taylor's Sixth Amendment rights did not attach until after he was arrested and
interrogated on December 12, 2016.
The state's argument on this point is spurious—if the complaint had not already been approved and filed at
the time Taylor was arrested and interrogated, both the arrest and the interrogation would have been
improper under R.C. Chapter 2935:
Juv.R. 6 specifies the circumstances under which a child may be taken into custody. The only
circumstance applicable herein is "pursuant to the law of arrest." Although the record does
not affirmatively indicate, apparently the arrest was without a warrant, since there is no
record of an order of the court that defendant be taken into custody, which necessarily would
have been preceded by the filing of a complaint, and, accordingly, R.C. 2935.05 is applicable.
That section requires the filing of an affidavit describing the offense for which the person was
arrested, either with the court or with the prosecuting attorney. If filed with the attorney, he
must forthwith file a complaint with the court based on the affidavit. Both R.C. 2935.03 and
2935.04 permit detention of a person arrested without a warrant only until a warrant can be
obtained, which, pursuant to R.C. 2935.08, is to be issued forthwith upon the filing of the
affidavit or complaint in accordance with R.C. 2935.05.
In re Therklidsen, 54 Ohio App.2d 195, 197 (10th Dist.1977). See also State v. Maurer, 15 Ohio St.2d 239, 255
(1984), and Brown v. Illinois, 422 U.S. 590 (1975) (holding that Miranda warnings do not purge the taint of
an illegal arrest and that statements obtained as a result of that arrest may be suppressed as fruit of the
poisonous tree). The state cannot now claim that it is entitled to evade the requirements of the Constitution
because it failed to perform its duty and thereby arrested and interrogated a defendant without statutory
authority—the very idea turns due process upside down.
No. 19AP-396 18
recognizes that "once the adversary judicial process has been initiated, the Sixth
Amendment guarantees a defendant the right to have counsel present at all 'critical' stages
of the criminal proceedings [and] Interrogation by the State is such a stage." Montejo, 556
U.S. at 786. Here, Detective Doersam's testimony at the suppression hearing and his
statements to Taylor during the interrogation demonstrate that the very latest point in time
at which the state could be deemed to have initiated adversarial proceedings against Taylor
was when it arrested and interrogated him that morning. (Mar. 14 and 15, 2018 Tr. of
Suppression Hearing at 82, Testimony of Detective Doersam). And in fact, we conclude
that adversarial proceedings against Taylor actually commenced prior to that point, when
the state approved Detective Doersam's request to file a charge and arrest Taylor. Id. at 79-
80. But notwithstanding any dispute on this point, Taylor's Sixth Amendment right to
counsel was certainly effective at the time he was interrogated.
{¶ 30} Moving to the second question, it seems quite clear that not only did Taylor
assert his right to counsel back in April, but that his trial counsel had been dealing with
both prosecutors and police on Taylor's behalf for the entire eight-month period preceding
Taylor's arrest and interrogation on December 12. Detective Doersam admitted that while
he was "not a hundred percent" sure that Taylor was still represented, that no one—no
prosecutor, no defense attorney, not Taylor himself—had ever indicated to him that Taylor
was not still being represented by his counsel on the date in question. See, e.g., id. at 84.
Detective Doersam was shockingly honest at the suppression hearing in testifying that he
thought he had no reason to call Taylor's attorney unless Taylor himself specifically
requested him to. Id. at 85. Even though Detective Doersam had been specifically advised
by Taylor's attorney during the preceding eight months that Taylor "would not consent to
an interview or proffer," see Nov. 5, 2018 Order & Entry at 4, Detective Doersam chose not
to contact Taylor's attorney "because it's [Taylor's] decision * * *." Detective Doersam
testified that he did not ask Taylor whether he was still represented "because I don't think
the decision mattered -- or the answer didn't matter that much." Id. at 85. But despite
Detective Doersam's belief on this point, there cannot be any dispute that Taylor both
asserted and exercised his Sixth Amendment right to counsel.
{¶ 31} Finally, while it may seem clear that Taylor willingly signed the waiver of
Miranda rights and submitted to Detective Doersam's questioning, that waiver must be
No. 19AP-396 19
taken in the totality of the circumstances—which include the fact that Detective Doersam
chose to begin the interrogation without notifying Taylor's lawyer and the fact that
Detective Doersam and the state had already filed the charge and chose not to notify
Taylor's counsel in the first instance. Given that Taylor's counsel had already informed all
the state's representatives of his involvement and that Taylor would not voluntarily be
speaking with them, we simply cannot conclude that under these circumstances Taylor's
waiver of his right to counsel can be deemed knowing, voluntary, and intelligent, even if his
waiver of his right to remain silent is. Had police respected Taylor's right to counsel, the
interrogation would not have commenced until after Taylor's attorney had been given a
chance to consult with his client.
{¶ 32} Taylor's statements during the December 12, 2016 interrogation must be
excluded as a violation of his rights under the Sixth Amendment. His third assignment of
error is therefore sustained, and the court's judgment overruling his motion to suppress
must be reversed.
{¶ 33} Taylor's remaining assignments of error all assert error in the trial and
sentencing proceedings—his fourth assignment of error challenges specific witness
testimony based on a lack of foundation; his fifth assignment of error asserts the
prosecuting attorney engaged in misconduct during closing argument; his sixth assignment
of error asserts the trial court should have refrained from giving a nonstandard jury
instruction regarding the authority of police officers during interrogations; his seventh
assignment of error asserts that he received ineffective assistance of counsel during trial;
his eighth assignment of error asserts his conviction was based on insufficient evidence and
against the manifest weight of the evidence presented; and his ninth assignment of error
asserts the sentence of 15 years to life violates the Ninth Amendment to the United States
Constitution. Given our disposition of Taylor's second and third assignments of error, we
find the issues raised in his remaining assignments of error to be moot.
{¶ 34} Taylor's first assignment of error is overruled, his second and third
assignments of error are sustained and his remaining assignments of error are rendered
moot. The Franklin County Court of Common Pleas judgment as to Taylor's conviction is
vacated and its judgment overruling Taylor's motion to suppress is reversed. This case is
remanded to the juvenile branch for further consideration.
No. 19AP-396 20
Judgment vacated in part and reversed in part,
cause remanded.
MENTEL, J., concurs.
DORRIAN, J., concurs in part and dissents in part.
No. 19AP-396 21
DORRIAN, J., concurring in part and dissenting in part.
{¶ 35} I respectfully dissent from the majority's sustaining of the second assignment
of error. In so doing, I consider that the facts before us differ from the facts in State v.
Smith, __ Ohio St.3d __, 2022-Ohio-274, in that the juvenile court in Smith expressly
found no probable cause existed for the same charges on which he was indicted and was
found guilty of by the trial court to which Smith was bound over. Smith held: "We hold that
the General Division of the Cuyahoga County Common Pleas Court lacked subject-matter
jurisdiction over Counts 4, 6, 7, and 8 and the firearm specifications because the juvenile
court found that the acts related to those counts and specifications were not supported by
probable cause and thus the juvenile court could not have made an amenability
determination with regard to those acts. There was thus a jurisdictional defect in the
bindover process." Id. at ¶ 43.
{¶ 36} I concur with the majority's sustaining of the third assignment of error;
however, I would consider, and not find to be moot, the remaining assignments of error.