[Cite as State v. Gregory , 2020-Ohio-5207.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. KYLEN GREGORY Defendant-Appellant : : : : : : : : : : Appellate Case No. 28695

Trial Court Case No. 2017-CR-2286/1 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 6th day of November, 2020.

. . . . . . . . . . . MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 00693 84, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, O hio 45449 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

WELBAUM, J.-2- {¶ 1} Kylen Gregory appeals from a reverse bindover decision in which the juvenile court concluded that Gregory was not amenable to rehabilitation in the juvenile system after he was convicted in adult court of murder, felonious assa ults, discharge of a firearm on or near a prohibited premises, and a firearm specification. According to Gregory, the juvenile court abused its discretion in finding a lack of amena bility because the court made errors in factfinding. In addition, Gregory contends that the juvenile court’s decision was against the manifest weight of the evidence. {¶ 2} We conclude that the juvenile court did not abuse its discretio n in making certain factual findings concerning Gregory’s amenability for r ehabilitation within the juvenile system. Although the court’s finding concerning one f actor in R.C. 2152.12(D) was incorrect, any error was harmless, as it involved a minor p oint, and the court relied more heavily on other factors, including a psychological evalua tion of Gregory. Furthermore, the court’s decision that Gregory was not amenable to rehabilitation in the juvenile system was not an abuse of discretion, nor was it agai nst the manifest weight of the evidence. Accordingly, the judgment will be affirmed. 1

I. Facts and Course of Proceedings {¶ 3} This case arises from a series of events that began on Septembe r 3, 2016, when Gregory stole a Smith & Wesson revolver and six bullets fr om his grandfather’s house. At the time, Gregory was 16 years old and was a sophomo re at Fairmont High

1 Gregory filed a notice of appeal from the trial court’s Decemb er 31. 2019 order imposing the adult sentence after the case was remanded to adult court. However, Gregory has not raised any issues pertaining to the adult court case; his s ole assignments of error are directed to the juvenile court’s bindover decision.-3- School in Kettering, Ohio. When Gregory stole the gun, he load ed the bullets into the gun and placed it in an overnight bag. The next day, Gregory t ook the gun to his house in Kettering, and then took it to Kanter Park in Kettering, whe re he met with several friends. According to Gregory’s trial testimony, he intended t o sell the gun to a friend. Because the friend did not have the money for the gun, Gregory then took the gun to the Alterfest festival, which he had previously planned to attend w ith his friends. Trial Transcript (Adult Tr.), p. 461-462, 478, and 481-483. {¶ 4} Gregory was part of a friend group or gang called BSK or GLO. This gang was prominent in Kettering and was known as a bunch of boys who did bad things. BSK referred to the streets (Beaver, Sutton, and Kanter) where some members lived, and GLO referred to the initials of a member who had previously died fr om gun violence. Amenability Hearing Transcript (“Amenability Tr.”), p. 18, 33, 34, 35, 45, 155, and 188. The members of BSK/GLO were M.K., Jerry Tanner, Kylen Gregory, and Miles Heizer.

Id . at p. 34. 2 Tanner had an ongoing problem with Cameron Wilson since June 2016, because Wilson had sold marijuana to Tanner’s girlfriend and di d not give her the correct

amount. Id . at p. 31-32. {¶ 5} Wilson also attended Alterfest on September 4, 2016, with a gro up of his friends. On that day, R.B. and Wilson picked up M.M. and J.T. at J.T.’s house around 6:30 p.m. 3 They then went to an apartment complex so that Wilson could b uy marijuana.

2 Because more than four years have passed since the incident, n early all the participants are adults now. However, one individual in BSK/GLO was only 14 at the time and may still be a juvenile. As a result, w e will use initials to prote ct his privacy.

3 We are also using initials for the driver of the car and two o ccupants, because they were minors at the time of the crime and may have still been minors at the time of the amenability hearing

.-4- While there, the four smoked marijuana and then left for Alterf est about a half-hour later. They arrived at Alterfest at 7:00 or 7:30 p.m. Adult Tr. at p. 182-186. R.B. parked the car on Willowdale Drive, which was in the area of the festival. Amenability Tr. at p. 24-

25. {¶ 6} Very shortly after arriving at the festival, Wilson encountered Tanner, Gregory, and M.K., who were dressed in all white clothing. Id . at p. 21. Tanner and M.K. confronted Wilson and wanted to fight him, but Wilson refu sed. Adult Tr. p. 102, 270, and 329. When Wilson said he did not want to fight, both groups walked away from

each other. Id . at p. 103 and 330. After the altercation, Wilson told his fr iends that they needed to leave, and they began walking to where R.B. had parke d the car. Wilson saw someone following them, so he told R.B. to run to the car; they then did so. The girls (M.M. and J.T.) were following behind them, walking at a slower pace. Amenability Tr. at p. 23 and 157. {¶ 7} The people following Wilson included C.H., who was Heizer’s you nger

brother. Id . at p. 157. 4 C.H. called Heizer to tell him where Wilson was headed, and Heizer, Gregory, Tanner, M.K., and a person named “Chicago” the n went to Heizer’s car, which was parked closer to the festival. Adult Tr. at p. 333. They eventually found C.H. and his friend, who pointed them to Willowdale Drive. Id . at p. 242. The people in Heizer’s car anticipated that they were going to a fight. Id . at p. 91, 104, and 467. {¶ 8} In the meantime, Wilson, R.B, M.M., and J.T. had gotten in R.B. ’s car, and R.B. had driven up into a driveway at 808 Willowdale, with the intent to turn around. Id

.

4 This individual’s age is unknown, so we will use his initials as well

.-5- at 192. However, Heizer went behind R.B.’s car to try to block him. Id . at p. 106. At that point, people in Heizer’s car got out and began banging on the front windows of R.B.’s car, attempting to get Wilson out of the car. R.B. was able to reverse and get out of the driveway because it was not totally blocked. However, as R.B. tried to drive away, Gregory shot at the vehicle. Id . at p. 107, 195, 276. {¶ 9} The shot hit R.B., and he slumped into Wilson’s lap. At that p oint, the car was still moving, going toward houses and a tree. Wilson then grabbed the wheel, pressed the brake, and the car stopped. Both J.T. and M.M. had jumped from the car.

Wilson exited the car and ran from the scene because he was afr aid he would be pursued. He eventually took shelter at a nearby home where a friend of M .M. lived. The police were then called. Adult Tr. at p. 201-293, 278-290, 341, 345, and 471; Amenability Tr. at p. 28 and 160. When M.M. jumped from the car, the boys from Heizer’s car were chanting and yelling. M.M. could not tell what they were saying , but the tone was “ ‘yeah,’ like I just did that, like ‘yeah, ’ hyping it up.” Amenability Tr. at p. 162. {¶ 10} The bullet penetrated the glass in the car’s rear window, went through the headliner, which was composed of foam, fabric, and cardboard, s kimmed across the car’s interior roof, and came downward, striking R.B. in the right si de of the back of his head. Although R.B. was transported to the hospital, he died two days later, with the cause of death being a gunshot wound to the head. Adult Tr. at p. 24, 5 2, 390, and 392. There was no indication that any of the people involved in the pursui t and shooting knew R.B. before that night. Id . at p. 329 and 460; Am enability Tr. at p. 41. {¶ 11} After the shooting, Gregory went home, changed from a white shi rt to a dark-6- shirt, put a cast on his arm, and returned to the festival. Ad ult Tr. at p. 420-422 and 476. 5 Tanner took the gun with him, cleaned it, and hid it in a trash can in the laundromat in his apartment building. Id . at p. 347-349. {¶ 12} On September 6, 2016, a complaint for felonious assault was fil ed in juvenile court, alleging that Gregory was delinquent due to hav ing knowingly caused physical harm to R.B. Gregory was then remanded to juvenile cu stody. On October 26, 2016, the State filed an amended complaint, adding charges for murder, with a three-year firearm specification; felonious assault (deadly weapon), with a three-year firearm specification; felonious assault (serious physical harm), with a three-year firearm specification); discharge of a firearm on or near prohibited pr emises (causing serious physical harm); and grand theft of a firearm. The State also f iled a motion to transfer the case to adult court under both mandatory and discretionary tran sfer statutes. {¶ 13} After holding a probable cause hearing, the juvenile court fil ed a decision on February 7, 2017, concluding that probable cause existed to believe that Gregory had committed the alleged offenses. The court then ordered a menta l examination and a social history investigation, and it scheduled an amenability h earing for April 7, 2017. In addition, the court granted a defense request for an independen t amenability evaluation. The court then held an amenability hearing on May 24, 2017, but continued the hearing for presentation of further testimony. {¶ 14} However, before the hearing process could be concluded, the Sta te filed another motion to transfer Gregory to adult court. This motion was based on a change

5 The cast was a removable one that Gregory had gotten due to an injury. Amenability Tr. at p. 72.-7- in Ohio jurisprudence, which previously had held that mandatory transfer of a juvenile to adult court violates due process. See State v. Aalim , 150 Ohio St.3d 463, 2016-Ohio8278, 83 N.E.3d 862, paragraph one of the syllabus. That decis ion was vacated on

reconsideration in State v. Aalim , 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, which was issued on May 25, 2017. Based on the fact that manda tory transfer was now allowed, the State argued that Gregory’s transfer to adult cour t was required. The juvenile court agreed, and on July 20, 2017, granted the State’ s motion for an immediate

transfer to adult court. {¶ 15} Gregory appealed from that decision on August 10, 2017, but the n voluntarily dismissed the appeal on October 6, 2017. Previousl y, an indictment had been filed in the common pleas court on August 8, 2017, charging Gre gory with two counts of murder, one count of discharge of a firearm on or near prohibit ed premises, and five counts of felonious assault (two counts relating to R.B. and th e other three relating to the other individuals in the car). All counts included firearm spe cifications. {¶ 16} In November 2018, a jury trial took place in the common pleas c ourt. The jury found Gregory guilty of two counts of reckless homicide as a lesser included offense of the murder charges and discharge of a firearm on or near a p rohibited premises (causing serious physical harm), along with the attendant firea rm specifications to these charges. The jury was unable to reach a verdict on the remaini ng charges, and a new trial was scheduled. However, on April 23, 2019, Gregory pled guilty to five counts of felonious assault, and, by agreement, the State dismissed the r emaining firearm specifications. See Entry of Waiver and Plea. {¶ 17} After merging the offenses and firearm specifications, the tria l court-8- sentenced Gregory to a total of 11 years in prison, including a mandatory three-year sentence for the firearm specification. The court also credite d Gregory with 1,012 days of confinement as of the sentencing date of June 13, 2019. And finally, the court stayed its sentence pursuant to R.C. 2152.121 and transferred the case back to juvenile court for further “reverse bindover” proceedings, noting that the cha rges of which Gregory was convicted were different from the charges originally filed in t he juvenile court and would have allowed discretionary transfer but would not have required mandatory transfer to the adult court. Judgment of Conviction, p. 3. {¶ 18} After the case was transferred back to juvenile court, the Stat e filed an objection to imposition of a serious youthful offender (“SYO”) disposition sentence and

asked the court to conduct an a menability hearing. The juvenil e court then ordered updates of the prior psychological reports and the probation de partment’s court investigation report (“CIR”). In addition, the court scheduled an amenability hearing for October 7, 2019. During the amenability hearing, which began o n that day and ended the next day, the court heard testimony from the following witn esses: Cameron Wilson; Dr. Laura Fujimura, court psychologist for the Montgomery Count y Juvenile Court; M.M.; Dr. Daniel Davis, who conducted an independent psychological ev aluation; and Michael Wallace, a youth specialist who was employed with the Montgomer y County Juvenile

Detention Center. {¶ 19} Additionally, the parties stipulated to the admission of severa l joint exhibits: Ex. 1 (trial testimony from the Montgomery County Common Pleas Court case); Ex. 2A (Juvenile Detention Records for 2016); Ex. 2B (Juvenile Detenti on Records for 2017); Ex. 2C (Juvenile Detention Records for 2018); Ex. 2D (Juvenile Dete ntion Records for 2019-9- through August 29, 2019); Ex. 3 (Dr. Fujimura’s psychological r eport); Ex. 4 (Dr. Davis’s psychological report); and Ex. 5 (the CIR). {¶ 20} After considering the evidence, the juvenile court filed an ord er on December 4, 2019, concluding that Gregory was not amenable to r ehabilitation in the juvenile system and that community safety required that Gregory be subjected solely to adult sanctions. Gregory then filed a notice of appeal on Janu ary 29, 2020, and later asked for the appeal to be expedited. We sustained Gregory’s r equest for expedition on March 18, 2020. On June 11, 2020, we also ordered that the rec ord be supplemented with the docket and journal entries from the juvenile court pro ceedings. Accordingly, the appeal is ready for disposition.

II. Abuse of Discretion in Fi nding Lack of Amenability {¶ 21} Gregory’s First Assignment of Error states that: The Juvenile Court Abused Its Discretion in Finding a Lack of Amenability to Rehabilitation in the Juvenile Justice System Th rough Errors in Factfinding. {¶ 22} The juvenile court concluded that Gregory was not amenable to rehabilitation in the juvenile system. Gregory contends that t he court abused its discretion in this regard because it made errors in factfinding . According to Gregory, the court erred in finding that Gregory’s relationship with R.B. fa cilitated the homicide; that Gregory committed the charged act for hire or as part of a gang or other organized criminal activity; that there was no provocation for the crime; and that Gregory’s actions exacerbated the physical or psychological harm the victim suffe red due to the victim’s-10- physical or psychological vulnerability. The State acknowledge s that the juvenile court may have misconstrued the meanin g of facilitatin g an offense. However, the State argues that this matter was irrelevant due to the presence of o ther seriousness factors. Appellee’s Brief, p. 18. {¶ 23} There is no question that this was a reverse bindover situation under R.C. 2152.121(B)(3) and that the procedures under that section of th e statute applied. In cases where, as here, the State objects to an SYO disposition, “the juvenile court shall hold a hearing to determine whether the child is not amenable t o care or rehabilitation within the juvenile system and whether the safety of the commun ity may require that the child be subject solely to adult sanctions.” R.C. 2152.121(B)( 3)(b). In making this decision, “the juvenile court shall consider the factors listed in division (D) of section 2152.12 of the Revised Code as factors indicating that the moti on should be granted, shall consider the factors listed in division (E) of that secti on as factors indicating that the motion should not be granted, and shall consider whether the ap plicable factors listed in division (D) of that section outweigh the applicable factors li sted in division (E) of that

section.” Id . “If the juvenile court grants the motion of the prosecuting attorney under this division, the juvenile court shall transfer jurisdiction o f the case back to the court in which the child was convicted of or pleaded guilty to the offen se, and the sentence imposed by that court shall be invoked.” Id

. {¶ 24} The factors in R.C. 2152.12(D) favoring transfer are as follows : (1) The victim of the act charged suffered physical or psycholo gical harm, or serious economic harm, as a result of the alleged act. (2) The physical or psychological harm suffered by the victim d ue to-11- the alleged act of the child was exacerbated because of the phy sical or psychological vulnerability or the age of the victim. (3) The child's relationship with the victim facilitated the ac t charged. (4) The child allegedly committed the act charged for hire or a s a part of a gang or other organized criminal activity. (5) The child had a firearm on or about the child's person or u nder the child's control at the time of the act charged, the act cha rged is not a violation of section 2923.12 of the Revised Code, and the child , during the commission of the act charged, allegedly used or displayed the firearm, brandished the firearm, or indicated that the child possessed a firearm. (6) At the time of the act charged, the child was awaiting adju dication or disposition as a delinquent child, was under a community con trol sanction, or was on parole for a prior delinquent child adjudic ation or

conviction. (7) The results of any previous juvenile sanctions and programs

indicate that rehabilitation o f the child will not occur in the juvenile system. (8) The child is emotionally, physically, or psychologically ma ture enough for the transfer. (9) There is not sufficient tim e to rehabilitate the child with in the juvenile system. {¶ 25} In this case, the juvenile court concluded that factors (1), (2 ), (3), (4), (5), (7), (8), and (9) favored transfer. The factors weighing agains t transfer in R.C. 2152.12(E) include the following items, as well as any other factors weigh ing against transfer:-12- (1) The victim induced or facilitated the act charged. (2) The child acted under provocation in allegedly committing t he act charged. (3) The child was not the principal actor in the act charged, o r, at the time of the act charged, the child was under the negative influ ence or coercion of another person. (4) The child did not cause physical harm to any person or prop erty,

or have reasonable cause to believe that harm of that nature wo uld occur, in allegedly committing the act charged. (5) The child previously has not been adjudicated a delinquent child. (6) The child is not emotionally, physically, or psychologicall y mature enough for the transfer. (7) The child has a mental illness or intellectual disability. (8) There is sufficient time to rehabilitate the child within t he juvenile system and the level of security available in the juvenile syst em provides a reasonable assurance of public safety. {¶ 26} The only factor the court found that potentially weighed agains t transfer was (5). However, even on this point, the court assigned only a ne utral value to the factor. Judge’s Order (Dec. 4, 2019), p. 11. {¶ 27} Juvenile court decisions on “a child's amenability to rehabilit ation in the juvenile system” are reviewed for an abuse of discretion. In re M.P ., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 14. An abuse of discretion is “an attitude that is unreasonable, arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place Community-13- Urban Redevelopment Corp ., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). We have

often said that “most instances of abuse of discretion will res ult in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.” Id

. Furthermore, decisions are unreasonable if they are unsupported by a sound reasoning process. “It is not enough that the reviewing court, were it d eciding the issue de novo, would not have found that reasoning process to be persuasive, p erhaps in view of countervailing reasoning processes that would support a contrar y result.” Id

. {¶ 28} In considering this appeal, we have read the entirety of the vo luminous juvenile record, which includes the amenability hearing transcr ipt, the adult court trial transcript, the psychological evaluations of Gregory, the juven ile court investigation report, and three years of daily documentation regarding Gregor y’s conduct during juvenile detention. These latter records, in particular, provi de an extensive look at Gregory’s conduct and progress while in detention. {¶ 29} After reviewing the record, we find no abuse of discretion due to alleged errors in the juvenile court’s factfinding. The court consider ed the appropriate statutory factors, and the record contains “some rational and factual bas is” to support its findings concerning those factors. State v. Howard, 2d Dist. Montgomery No. 17298, 2018-Ohio1863, ¶ 15-16, quoting State v. West , 167 Ohio App.3d 598, 2006-Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.). See also State v. Hoskins , 2d Dist. Montgomery Nos. 27486 and 27487, 2018-Ohio-4529, ¶ 17. Under the abuse of discretion sta ndard, “a juvenile court ‘ “enjoys wide latitude to retain or to relinquish jurisdiction .” ’ ” Howard at ¶ 15, quoting

State v. Johnson , 2015-Ohio-96, 27 N.E.3d 9, ¶ 36 (8th Dist.). (Other citations omitted.) {¶ 30} In Howard , we further stressed that “ ‘the test is not whether we would have-14- reached the same result upon the evidence before the juvenile c ourt; the test is whether the juvenile court abused the discretion confided in it.’ ” Id . at ¶ 16, quoting State v. Hopfer , 112 Ohio App.3d 521, 535, 679 N.E.2d 321 (2d Dist.1996). “If there is some rational and factual basis to support the [juvenile] court's de cision, we are duty bound to affirm it regardless of our personal views of the evidence.” Id ., citing West at ¶ 10. “ ‘After all, the juvenile court judge is personally familiar w ith both the juvenile system and the individual juvenile and is therefore in a superior position to make a determination whether the juvenile is amenable to care or rehabilitation with in the juvenile system.’ ”

Id ., quoting State v. Drane , 2d Dist. Montgomery No. 23862, 2012-Ohio-1978, ¶ 34 (Fain, J., dissenting). {¶ 31} As a preliminary point, we do agree that the juvenile court mis construed the meaning of facilitating an offense under R.C. 2152.12(D)(3). “ To facilitate means to make easier. The American Heritage Dictionary (2 Ed.1985) 484. In order to have the relationship facilitate the offense, the defendant must have us ed his relationship with the victim to help commit the offense.” State v. Manley , 3d Dist. Allen No. 1-11-04, 2011- Ohio-5082, ¶ 20, citing State v. McDade , 6th Dist. Ottawa Nos. OT-06-001, OT-06-004, 2007-Ohio-749. “In other words, the defendant must have used the relationship to allow

him to commit the offense in a manner which he could not have a ccomplished without the relationship.” Id . Here, R.B. and Gregory had no relationship; in fact, they di d not even know each other. R.B. was simply an unfortunate bystander who was tragically killed as a result of Gregory’s actions. {¶ 32} Nonetheless, the court’s error in this regard was not prejudici al. As an initial point, R.C. 2152.12 does not specify the weight to be g iven to any particular factor.-15- Instead, the ultimate decision rests with the juvenile court. State v. Morgan , 10th Dist. Franklin No. 13AP-620, 2014-Ohio-5661, ¶ 37. Accord State v. Lavender, 2019-Ohio5352, 141 N.E.3d 1000, ¶ 139 (1st Dist.). Furthermore, the doc trine is well-settled that “[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.” Crim.R. 52(A). “This language has been inter preted to ‘mean[ ] that

the error must have been prejudicial : It must have affected the outcome of the [trial] court proceedings.’ ” (Emphasis and parenthetical material sic.) State v. Fisher , 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting United States v. Olano , 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). {¶ 33} Our review of the record indicates no possibility that the erro r affected the outcome of the amenability proceeding. The juvenile court foun d transfer appropriate based on many factors, and its decision appears to have relied most heavily on the psychological evaluation and opinions of Dr. Fujimura, whom the court specifically found persuasive. Judge’s Order (Dec. 4, 2019), p. 8. {¶ 34} Gregory also contends that the court erred in concluding that h e committed the charged act for hire or as part of a gang or other organize d criminal activity. See R.C. 2152.12(D)(4). The statute does not define “gang,” and Gregory argues we should apply the definition of a gang stated by an expert in State v. Stafford , 9th Dist. Summit No. 24144, 2009-Ohio-701. In that case, a police officer state d that “ ‘[w]ithin Ohio a gang is a group of three or more persons that go about together with a common name and one or more common identifying signs, symbols or colors and their main purpose is to commit criminal activity.’ ” Id . at ¶ 28. {¶ 35} We decline the invitation. Stafford involved prosecution of a specific crime,-16- R.C. 2923.42(A), which bars participation in criminal gang acti vity. R.C. 2923.42(A) provides, in pertinent part, that: No person who actively participates in a criminal gang, with knowledge that the criminal gang engages in or has engaged in a pattern of criminal gang activity, shall purposely promote, further, or assist any criminal conduct, as defined in division (C) of section 2923.41 of the Revised Code, or shall purposely commit or engage in any act th at constitutes criminal conduct, as defined in division (C) of sec tion 2923.41 of

the Revised Code. {¶ 36} The State was not required to prove that Gregory met the requir ements of this crime, nor did the juvenile court need to apply R.C. 2923. 42 in order to find that Gregory's acts were committed as part of a gang. However, even if one were guided by the statute and the case that Gregory cites, there was some rat ional and factual evidence in the record to support the conclusion that Gregory's action w as part of gang activity. {¶ 37} Specifically, there was evidence that Gregory, Tanner, M.H., an d Heizer were members of a prominent gang in Kettering called GLO or BSK that was known for doing bad things. Amenability Tr. at p. 18-20, 33, 34, 155, an d 188. As noted, one of the members had previously died as a result of gun violence. Id . at p. 45. The members of the group also appeared in all white clothing at the festiva l and challenged Cameron Wilson to a fight based on an ongoing “beef” with him. When Wi lson refused to fight, the members of the gang pursued Wilson and his friends, believing a fight was going to occur.

Id . at p. 19. See also Adult Tr. at p. 91, 102, 104, 270, and 329. And, in the cours e of that fight, Gregory discharged his weapon at the car – an actio n that can certainly be-17- described as being intended to intimidate others. Thus, some r ational and factual evidence existed in the record to warrant the juvenile court’s conclusion that R.C. 2152.12(D)(4) supported transfer. {¶ 38} Gregory also argues that the court erred in concluding that th e victim did

not induce or facilitate the char ged act, and that he acted und er provocation. Appellant’s Brief, p. 11-12. This argument relates to R.C. 2152.12(D)(3) a nd (E)(2). In this vein, Gregory focuses on the fact that an ongoing “beef” existed betw een Wilson and Tanner, due to the fact that Wilson had “shorted” Tanner’s girlfriend w hen selling her marijuana, that other persons outside the BSK/GLO group may have had an al tercation with Wilson about his problem with Tanner, and that Wilson had an Airsoft g un in R.B.’s car the evening of the incident. Id . at p. 12. {¶ 39} The undisputed evidence discussed in the statement of facts cle arly indicated that Wilson refused to fight with anyone the evening of the incident and attempted to flee – which he was prevented from successfully do ing. More importantly, the other victims in the car were completely innocent bystander s with no connection to any ongoing feud between Wilson and the GLO/BSK group. There w as not an iota of evidence to support the contention that the victims provoked Gr egory or that he acted under provocation of any kind. {¶ 40} Finally, Gregory takes issue with the juvenile court’s finding that his actions exacerbated the physical or psychological harm the victims suff ered due to the victim’s physical or psychological vulnerability. This factor relates t o R.C. 2152.12(D)(2), which indicates that a factor favoring transfer is that “[t]he physic al or psychological harm suffered by the victim due to the alleged act of the child was exacerbated because of the-18- physical or psychological vulnerability or the age of the victi m.” {¶ 41} According to Gregory, the record fails to disclose that “any of the victims were psychologically or physically infirm or that they were imp aired at the time of the incident.” In this regard, Gregory focuses solely on the juven ile court’s comment that “[s]uch events would be a traumatic experience for anyone, espe cially adolescents.” Appellant’s Brief at p. 12. {¶ 42} In discussing this factor, the juvenile court remarked that: The victims were teenagers in 2016. They were confronted by a hostile group of four individuals. They were followed and trac ked by the initial hostile group of four as well as two other youths assoc iated with that group as they tried to retreat. Their escape was prevented whe n they were trapped in a residential driveway by the hostile group, who sur rounded their vehicle yelling, striking, and rocking the vehicle. Three of t hem witnessed

a friend shot in the back of the head as he tried to maneuver h is vehicle away from the danger. Three victims bailed out of a moving veh icle and a storm of glass to the soundtrack of a gunshot and a hostile gro up yelling and celebrating the victims’ fear. They then hid behind a hous e and trees. Such events would be a traumatic experience for anyone, especia lly

adolescents. R.B. was only sixteen years old when he lost his life. While t he loss of any life is tragic, R.B.’s age amplifies the tragedy. Judge’s Order (Dec. 4, 2019), p. 4. {¶ 43} What Gregory fails to mention is that age, and not just physica l or-19- psychological vulnerability – is specifically mentioned in R.C. 2152.12(D)(2). The juvenile court therefore appropriately considered the impact of the victims’ ages. We also note that one victim, M.M., indicated that she had been ve ry affected, had missed many days of school, went to counseling, and took anti-depressa nt pills. Amenability Tr. at p. 163. M.M. further said that she thought about the incide nt every day. Id

. Accordingly, the juvenile court did not err in factfinding conc erning this factor. {¶ 44} Based on the preceding discussion, we find no abuse of discreti on that resulted from the juvenile court’s alleged erroneous factfindin g. The First Assignment of Error, therefore, is overruled.

III. Manifest Weight {¶ 45} Gregory’s Second Assignment of Error states that: The Juvenile Court Abused Its Discretion in Finding a Lack of Amenability to Rehabilitation in the Juvenile Justice System, a s the Decision is Against the Manifest Weight of the Evidence. {¶ 46} In discussing this assignment of error, Gregory incorporates th e arguments he has previously made and contends that, based on the court’s faulty analysis, the court was unfairly skewed against amenability. Since we have found t hat the court’s analysis was mostly correct, there is no basis on which to conclude that the court’s decision was unfairly skewed by incorrect factfinding. {¶ 47} Gregory’s next point is that the juvenile court improperly igno red his achievements and rehabilitative progress during three years of incarceration. In this regard, Gregory focuses on positive testimony from a youth spec ialist, Gregory’s own lack-20- of violence or fights during detention, the fact that he has al ways attained a level three behavioral status (the highest level available), the fact that his disciplinary problems “primarily involve issues such as being silly, dancing in class , horseplay or having contraband,” his expression of regret for his wrongdoing, the f act that his misconduct began in late school age and early adolescence, which has the p rospect of a better outcome and less likelihood of remaining persistent in adulthoo d, the fact that he is close to achieving his high school diploma, and the fact that his beh avioral issues have decreased over time. Appellant’s Brief at p. 14-18. {¶ 48} Before addressing these matters, we note that a few decisions h ave applied a manifest weight standard to amenability issues. See State v. Davis , 11th Dist. Lake No. 2002-L-127, 2003-Ohio-6741, ¶ 31; State v. Early , 6th Dist. Lucas No. L-84-339, 1985 WL 7059, *2 (Mar. 1, 1985). However, the general standard for reviewing amenability decisions is whether the juvenile court abused its discretion. E.g. , M.P ., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, at ¶ 14. And again, the is sue is whether the record contains some rational and factual basis to support the court's findings. Howard , 2d Dist. Montgomery No. 17298, 2018-Ohio-1863, at ¶ 15-16. Regardless o f the standard applied, however, reversing the juvenile court’s decision in th is case is unjustified for

several reasons. {¶ 49} As indicated, Gregory contends that the juvenile court ignored his achievements and rehabilitative progress while in detention. T he court did not discuss the detention record in great detail; instead, it primarily rel ied on the psychological evaluation and testimony of Dr. Fujimura, who did discuss Grego ry’s conduct during detention. The court also rejected Dr. Davis’s opinion that Gr egory was already on his-21- way to rehabilitation, stating that Davis’s opinion appeared “t o have been based on a very small percentage” of Gregory’s negative detention log notations . Judge’s Order, Dec. 4, 2019) p. 13. {¶ 50} Under settled law, the juvenile court could disregard any part of these doctors’ testimony or could assign any weight to the testimony. State v. Nicholas , 2d Dist. Champaign No. 2018-CA-25, 2020-Ohio-3478, ¶ 67, citing State v. Easley , 10th Dist. Franklin No. 16AP-9, 2016-Ohio-7271, ¶ 15. {¶ 51} Dr. Fujimura is a court psychologist for the Montgomery County Juvenile Court. She has been employed by the court for 29 years, and pa rt of her job is evaluating youth for amenability. Amenability Tr. at p. 47-48. Dr. Fujim ura evaluated Gregory in 2017 concerning the pending charges, and again in 2019. Id . at p. 49. According to Dr. Fujimura, evaluating someone who has been in custody for three years is unusual and gave her additional helpful information she might not usually h ave, primarily because the detention facility keeps daily logs of a youth’s behavior, with a running narrative of services provided and how the youth responded. The logs also n ote any discipline problems and suggestions for future beneficial services. Id . at p. 51. {¶ 52} The format of the detention program was called “Positive Behavi or Interventions and Support,” during which youths participate in programs, focus on their positive actions, and earn points to progress through levels. Id . at p. 52. Another strong component is education, with a full staff of teachers who help youths earn high school diplomas during detention. Id . at p. 53. Among the other services available to Gregory were a full mental health program, a psychiatrist on staff to a ssess youths and prescribe medication, and treatment staff to provide individual and group counseling. Id . at p. 53--22- 54. {¶ 53} Gregory entered detention when he was 16 years old and a sophom ore in high school. Before the incident, he had a “very problematic h istory starting in middle school through high school with a lot of discipline referrals f or disrespectful and disruptive behaviors, often resulting in disciplinary action.” Id . at p. 56. Both before and after detention, Gregory had incidences of not doing his work in scho ol, being disruptive in class, and being disrespectful to teachers. Id . at p. 56-67. The length of Gregory’s misconduct and similar behavior caused Dr. Fujimura concern ove r his amenability. Id

. at p. 57. Specifically, despite all the services provided and family support, Gregory was still exhibiting the same issues during detention. Id. at p. 58. Moreover, while Gregory was a sophomore when he came into detention, he was not able to attain his high school diploma in three years. At age 19 and one-half, Gregory was st ill three courses short of attaining a high school diploma. Id

. {¶ 54} During detention, Gregory had about 336 verbal corrections and about 15 discipline reports. Id . at p. 61. The daily logs given to the juvenile court for rev iew contained entries from September 5, 2016, when Gregory was firs t taken into detention, through August 29, 2019, when Gregory was almost 19 and a half years old. See Joint

Exs. 2A-2D. 6 {¶ 55} It is true, as Gregory suggests, that many of his discipline re ferrals were for issues like being silly, dancing, and horseplay. However, a su bstantial number of

6 The amenability hearing began on October 7, 2019. Dr. Fujimur a also indicated that on September 5, 2019, Gregory was written up for having major c ontraband. While the objects were just two pieces of gum, Gregory was openly breakin g the rules; this was consistent with Gregory’s having been disciplined many times fo r having contraband in his room. Amenability Tr. at p. 77-78.-23- discipline referrals were for being disrespectful of staff and others. Furthermore, issues concerning disrespect persisted throughout the entire period of detention. E.g ., October 27, 2016 (“Corrected for arguing with staff”); November 14, 201 6 (“Corrected for trying to argue with this Y/S [youth specialist] about changing his room” ); December 14, 2016 (“Seems to have no regard for rules of detention and likes to a rgue with staff/peers”); April 3, 2017 (“Sent out of class for lack of participation and verbally assaulting YS”); May 10, 2017 (“sent out of gym for not following directions”; “Corr ected for arguing with peer”); July 7, 2017 (“corrected for being disrespectful towards the Yo uth Specialist and others on the unit”); October 10, 2017 (“sent from class for arguing w ith teacher”); November 11, 2017 (“corrected for disrespecting staff”); December 21, 2017 ( “corrected for disrespecting Y/S Mr. Wallace); March 25, 2018 (“received T/O [ time-out] for being disrespectful”); April 10, 2018 (“Corrected for * * * arguing w ith Ms. Young in class”); May 1, 2018 (“Corrected for mocking Y/S when correcting another you th[‘s] behavior”); June 21, 2018 (“Corrected for telling teacher what he [Gregory] is n ot going to do”); July 23, 2018 (“Corrected for his poor attitude toward Y/S”); August 29, 2018 (“Corrected for trying to debate directions with teachers”); October 1, 2018 (“Sent ou t of class for trying to argue with Ms. Tomlin”); November 19, 2018 (“Sent out of class for be ing disrespectful”); January 20, 2019 (“Corrected for talking back to Y/S”); April 4 , 2019 (“Y/S warned him about his disrespectful behavior”); April 25, 2019 (“Corrected for silly behavior on G/M laughing loudly when told he would be sent to his room he said I want to rest anyway”); August 28, 2019 (“Sent out of class for talking back to Ms. Tom lin and getting out of chair without permission. Fined 100 points today”). Joint Exs. 2A-2 D. {¶ 56} As indicated, these are but some of the infractions. Furthermore, while a-24- particular infraction, like being silly, might not be major, th e fact that such behavior continued repeatedly over three years, despite correction, indi cated Gregory’s lack of respect for rules and a failure to conform his behavior after c orrection. For example, Gregory was corrected for “silly” behavior about 57 times betwe en November 2016 and May 2019. Joint Exs. 2A-2D. He was corrected for having sagging pants 27 times between February 2017 and March 2019. Id . On September 25, 2016, shortly after he entered detention, Gregory was corrected for cursing or using f oul language. He thereafter had 63 more such violations between then and May 3, 2019. Id

. {¶ 57} It is true that Gregory had fewer discipline referrals after hi s case was returned to juvenile court following the sentencing in the tria l court. However, Dr. Fujimura noted that Gregory had been described as sneaky and ma nipulative during detention, that he presented himself in different ways to diffe rent people, and that getting accurate answers from him was difficult. Amenability Tr. at p. 69, 76, and 79. Regarding manipulation, Gregory told Dr. Fujimura during her se cond evaluation that he would prefer to stay in the juvenile system because he had hear d he could get out when he was 21. She ascribed his improvement in behavior in recent months to his realization that he would have less time and less consequences if he stayed in the juvenile system.

Id . at p. 85. {¶ 58} Given Gregory’s failure to provide accurate information, Dr. Fu jimura stated that she was concerned about his amenability to being treated s uccessfully within the system and within the time before he turned 21. In this regard , the doctor stressed that: If the information that Kylen gives changes, is not complete, i f there’s denial or difficulties, it’s going to make it really difficult to come up with-25-

accurate treatment. Over the past three years, he’s had many opportunities to speak with many different staff people, teachers, therapists, psychiatrist s, detention staff, and under this detention program, they look for the posi tives. Regardless of what charges the youths come in with, the staff l ook for the positives. They encourage the positives. They really work ver y hard with the youths to give them every possible opportunity. Teachers o ffered many times to work with Kylen individually, and he still was no t able to complete his work. So given that, with all of this opportunity, if Kylen doesn’t c hoose to be accurate with the information to really step up to the plate and say, I have those issues, * * * I really want to get the help – if he doesn ’t do that, no treatment is going to be effective. Amenability Tr. at p. 70. {¶ 59} Dr. Fujimura also expressed concerns over community safety if G regory were kept within the juvenile system and then released, stating that: Combining the logs with his reports, it still shows he tends to underestimate. He’s told his probation officer, I haven’t been getting into trouble. I look at the logs and see that he has been having pr oblems. He would tell the psychiatris t, I’m not having any issues in – with my behavior, but that wasn’t the case. So I was able to compare w ith that. If he’s not been forthright and he’s manipulative and he’s not engaging in treatment and he’s selective with what he’s telling people, it’s-26- hard to get an accurate assessment of risk. It’s hard to get a n accurate assessment of what treatment he needs or how long it will be ef fective.” Amenability Tr. at p. 71. {¶ 60} Based on what Dr. Fujimura reviewed and observed, she diagnosed Gregory with oppositional defiance disorder and conduct disorde r. Id . at p. 103-105. Her opinion, based on a reasonable degree of psychological prob ability, was that Gregory had “the ability to participate in treatment and do well academ ically,” but was not “amenable to treatment services in the juvenile justice system based on his own

behaviors.” Id . at p. 111. {¶ 61} In light of the above discussion, we conclude that substantial, not just some rational and factual evidence, supported the juvenile court’s r emand decision. Howard , 2d Dist. Montgomery No. 17298, 2018-Ohio-1863, at ¶ 15-16. Furthermore, the court was not required to accept the testimony of any witness. “The weight to be given to the evidence and the credibility of t he witnesses are issues for th e trier of fact.” State v.

Anderson , 2015-Ohio-888, 30 N.E.3d 176, ¶ 39 (5th Dist.). As a result, the court did not have to credit the testimony of Michael Wallace, who was one of Gregory’s youth supervisors. {¶ 62} In addition, without casting any aspersion whatsoever on Wallac e’s credibility, the fact is that Wallace was not with Gregory all the time; he was simply one of many youth supervisors and teachers. As Dr. Fujimura noted, Gregory presented himself in different ways to different people. {¶ 63} In addition, Wallace’s testimony was simply incorrect in some r espects. For example, Wallace testified that Gregory always wore a black shirt, and that Gregory-27- had always been a “level three,” which is the best behavior lev el. Amenability Tr. at p. 300. According to Wallace, a yellow shirt is worn for level on e, an orange shirt is worn for level two, and a black shirt is worn for level three. Leve l three is for the best behavior,

while level one is for the worst behavior. Id

. {¶ 64} Contrary to Wallace’s statement, however, Gregory was at a leve l one or level two behavior for the majority of the time he was in deten tion. See Joint Ex. 2A-2D. As one example, Gregory was reduced from level two to level one on July 4, 2018, for instigating a fight with another youth. He remained at level o ne until July 30, 2018. In the meantime, Gregory had some other major disciplinary problem s, like instigating a fight/horseplay on July 7, 2018, possessing contraband on July 14, 2018, and talking, on July 19, 2018, about a television show that taught people how t o escape. After going back to level two on July 30, 2018, Gregory was again returned to le vel one on September 6, 2018, for having contraband. Id . at Ex. 2C. {¶ 65} In fact, Gregory did not reach level three until October 28, 20 18, which was more than two years after he entered confinement. Id . He then remai ned on level three until July 24, 2019, when he was reduced to level one for having contraband. Id

. at Ex. 2D. Ironically, this infraction occurred on the same da y that Gregory met with a probation officer who was conducting the court investigation fo r the amenability hearing. This officer met with Gregory at 10:00 a.m. and explained that he would be preparing a court investigation for the upcoming hearing. The officer also encouraged Gregory to make good choices, avoid any conflict, and follow the detention rules. Id

. {¶ 66} However, later that day, during the second shift, which is from 3:00 p.m. to 11:00 p.m., Gregory received a fine for contraband and was redu ced to a level one. Id

.-28- Gregory also was written up for major contraband on September 5 , 2019, about a month before the amenability hearing began. {¶ 67} There is no question that some progress toward rehabilitation o ccurred during the three years that Gregory was in detention. Dr. Fuji mura acknowledged that in some ways, Gregory had made progress. Amenability Tr. at p. 65. Nonetheless, for the reasons discussed above, she did not believe adequate time remained for Gregory to be successfully treated and rehabilitated within the juvenile s ystem. {¶ 68} Like Dr. Fujimura, Dr. Davis diagnosed Gregory with oppositiona l defiant

disorder and adolescent onset conduct disorder. Id . at p. 176. While Dr. Davis found that the scale tipped toward amenability, his opinion could rea sonably be classified as only lukewarm. Id . at p. 181. Dr. Davis agreed with Dr. Fujimura that “the exte nt [to which] Kylen decides to genuinely * * * address various factors , these factors to change his behaviors, is of paramount importance related to this deter mination.” Id . In addition, Dr. Davis stated that while Gregory had “a moderate degree of p sychological factors for amenability, he could not “give an opinion within a reasonable degree of psychological certainty that [Gregory] is amenable due to the nature of the c ase and the nature of the

research.” Id . at p. 188. {¶ 69} Even if Dr. Davis had been more positive, the juvenile court co uld give the weight it desired to the expert opinions and did not have to ac cept Dr. Davis’s conclusions. A juvenile court has discretion “to assess the significance of the psychological evaluation's findings, including its weight and credibility, an d then consider the totality of the circumstances presented in the case.” Davis , 11th Dist. Lake No. 2002-L-127, 2003- Ohio-6741, at ¶ 31.-29- {¶ 70} We further stress the repeated recognition of Ohio courts “ ‘th at “[t]he more serious the offense, the less amenable the juvenile will be to rehabilitation in the juvenile system.” ’ ” Howard , 2d Dist. Montgomery No. 27198, 2018-Ohio-1863, at ¶ 33, quoti ng State v. Johnson , 2015-Ohio-96, 27 N.E.3d 9, ¶ 43 (8th Dist.). (Other citation omitted.) Notably, Gregory was convicted of a very serious offense. Whil e the jury found Gregory had committed reckless homicide rather than murder, R.B. was no t the only victim; three other individuals were also feloniously assaulted and harmed. {¶ 71} Finally, as to Gregory’s remorse, Dr. Fujimura stated that Greg ory had not shown empathy for his own family, and that while Gregory said h e was sorry for killing R.B., he did not accept responsibility – he only said that it w as not supposed to happen.

Id . at p. 92-83. Again, the juvenile court is the judge of credi bility and chose to credit Dr. Fujimura’s opinion. {¶ 72} Based on the preceding discussion, we find no error in the juve nile court’s decision to find that Gregory was not amenable to rehabilitatio n in the juvenile system and to remand the case to adult court. Accordingly, Gregory’s Second Assignment of

Error is overruled.

IV. Conclusion {¶ 73} Both of Gregory’s assignments of error having been overruled, t he judgment

is affirmed.

. . . . . . . . . . . . . DONOVAN, J. and FROELICH, J., concur.-30-

Copies sent to: Mathias H. Heck, Jr. Andrew T. French Ben M. Swift Hon. Mary E. Montgomery