[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In 

re E.S., Slip Opinion No. 2023-Ohio-4273.]

 

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2023-OHIO-4273

IN RE E.S.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as In re E.S., Slip Opinion No. 2023-Ohio-4273.]

Criminal law—Juvenile law—R.C. 2152.12—Juv.R. 30—Probable cause—The 

state’s burden in establishing probable cause for purposes of binding a 

juvenile over to adult court is to produce evidence that raises more than 

mere suspicion of juvenile’s guilt—Evidence presented by the state was 

sufficient to establish probable cause to believe that juvenile committed 

involuntary manslaughter—Court of appeals’ judgment reversed and cause 

remanded to juvenile court.

(No. 2022-0993—Submitted June 27, 2023—Decided December 1, 2023.)

APPEAL from the Court of Appeals for Cuyahoga County,

No. 110378, 2021-Ohio-4606.

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SUPREME COURT OF OHIO

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DETERS, J.

{¶ 1} In this appeal by the state of Ohio, we are asked to determine the 

quantum of evidence that satisfies the probable-cause standard for deciding whether 

a juvenile-court offender may be bound over to adult court. We reaffirm that the 

state’s burden in that regard is to produce evidence that “ ‘raises more than a mere 

suspicion of guilt,’ ” State v. Martin, 170 Ohio St.3d 181, 2022-Ohio-4175, 209 

N.E.3d 688, ¶ 19, quoting State v. Iacona, 93 Ohio St.3d 83, 93, 752 N.E.2d 937 

(2001). To require more of the state is error.

{¶ 2} Following a car chase involving a stolen car, police discovered E.M., 

the driver of the stolen car, on the ground outside the car dead from a gunshot 

wound. A handgun was found under the car’s front passenger seat, where appellee, 

E.S., then 16 years old, had been seated during the car chase. E.S.’s DNA 

accounted for most of the DNA that was found on the trigger and the grip of the 

gun, and a bullet that had been fired from the gun was found in the driver’s side 

front door. E.S. was charged in juvenile court with multiple offenses relating to the 

stolen car, the gun, and E.M.’s death. Presented with this evidence, the juvenile 

court determined that although there was probable cause to believe that E.S. had 

possessed the gun found in the car while under a disability, see R.C. 2923.13(A)(2), 

had improperly handled the gun in the car, see R.C. 2923.16(B), and had received 

stolen property, see R.C. 2913.51(A), there was no probable cause to believe that 

E.S. had committed the involuntary manslaughter of E.M., see R.C. 2903.04(A), or 

the reckless homicide of E.M., see R.C. 2903.041(A).

{¶ 3} We conclude that the juvenile court improperly went beyond the role 

of gatekeeper for determining whether there was probable cause to believe that E.S. 

had committed the offenses and instead acted as the ultimate fact-finder. Because 

the evidence presented by the state was sufficient to establish more than a mere 

suspicion that E.S. committed involuntary manslaughter, we reverse the judgment 

of the Eighth District Court of Appeals affirming the juvenile court’s probable-
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3

cause determination regarding the involuntary-manslaughter charge,

1

and we 

remand this case to the juvenile court for further proceedings.

BACKGROUND

{¶ 4} In July 2020, 16-year-old E.S. was charged in Cuyahoga County 

juvenile court with involuntary manslaughter, reckless homicide, having a weapon 

while under a disability, receiving stolen property, and improperly handling a 

firearm in a motor vehicle. The involuntary-manslaughter, reckless-homicide, and 

receiving-stolen-property charges included firearm specifications. The charges 

arose from an incident during which E.S.’s friend, E.M., was killed by a gunshot 

wound to his chest.

{¶ 5} The state filed a notice of mandatory bindover to adult court, see 

R.C. 2152.10(A)(2), and a motion requesting that the juvenile court relinquish 

jurisdiction over the case, see R.C. 2152.10(B) and Juv.R. 30(A). The juvenile 

court held a hearing to determine whether there was probable cause to believe that

E.S. had committed the offenses charged. See Juv.R. 30(A). The following 

evidence was presented during the probable-cause hearing.

{¶ 6} At around 5:15 a.m. on June 9, 2020, Cuyahoga Heights Police 

Officer Kevin Stack saw a silver car being driven in a 35 m.p.h. zone at a high 

speed. Officer Stack and his partner, Cuyahoga Heights Police Officer Matthew 

Kontura, followed the car in their police cruiser and eventually learned that the car

had been reported stolen and had been involved in an attempted robbery. In light 

of that information, the officers attempted to initiate a stop of the car by turning on 

their cruiser’s siren and overhead lights. The car did not stop, and a chase ensued.

{¶ 7} At some point, the chase proceeded into a field. Although the fleeing 

car was being driven quickly through the field, the police officers pursued it slowly 

because it was still dark outside and visibility was further diminished because the 

1. The state has not challenged on appeal the juvenile court’s determination that there was no 

probable cause regarding the reckless-homicide charge.
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fleeing car was sending dust into the air. When the officers were about 500 feet 

behind the car, Officer Stack “saw the [car] kind of tilt forward and stop.”

{¶ 8} The officers continued to move toward the stopped car. As Officer 

Stack got out of the cruiser to approach the car, he saw a black male and a black 

female climbing up the embankment near where the car had crashed into a ditch. 

Officer Kontura pursued the male and the female on foot while Officer Stack went 

to the car to confirm that no one else was in it. He observed that the two passengerside doors were open and that the driver’s side front door was closed. Officer Stack 

went to the driver’s side of the car to turn the car off.

{¶ 9} After “clearing” the car and turning its engine off, Officer Stack 

attempted to use the police cruiser to join Officer Kontura in his pursuit of the male 

and the female. However, he was unable to drive the cruiser across the ditch, so he 

walked back to the scene of the crash to attempt to follow his partner on foot. He 

then saw a black male, who was later determined to be E.M., lying face down on 

the ground near the car. Officer Stack drew his weapon and issued verbal 

commands, but E.M. did not respond.

{¶ 10} During the car chase, Officer Stack told the police dispatcher for his 

department to notify the Cleveland Police Department of the location where he and 

Officer Kontura were pursuing the car. Cleveland Police Department Detective 

Samuel Pelsnik, who was a patrol officer at the time of the incident, testified that 

he arrived at the scene about 30 seconds after Officer Stack discovered E.M. on the 

ground. Detective Pelsnik described having seen Officer Stack standing with his 

gun drawn about ten feet from a man (E.M.) who was lying face down on the 

ground. E.M. was about 20 feet in front of the crashed car. The detective

recounted, “I went over to the male. I asked [Officer Stack] if he needed assistance 

detaining the male. He said yes.” Detective Pelsnik explained that he approached

E.M. and determined that he was unresponsive. He then rolled E.M. over and began 

to perform CPR on him. Detective Pelsnik testified that when he and Officer Stack 
January Term, 2023

5

lifted E.M.’s shirt, he saw that E.M. had been shot. The attempt at CPR was 

unsuccessful.

{¶ 11} Cleveland Police Department Detective David Arkley, who also 

arrived at the scene soon after the crash, testified that he examined the Cuyahoga 

Heights police officers’ guns and their magazines at the scene and determined that 

no ammunition was missing from them. Cleveland Police Department Homicide 

Unit Detective Raymond Diaz also examined the Cuyahoga Heights officers’ guns 

and determined that no rounds had been fired from them.

{¶ 12} The car E.M. had been driving was taken to a police impound lot, 

where it was later processed by Cleveland Police Department Detective Tommy 

Manson. Detective Manson testified that a fired bullet was recovered from inside 

the driver’s side front door. Also, a 9 mm handgun with one fired cartridge case 

and six live rounds was recovered from under the front passenger seat.

{¶ 13} Jeffrey Oblock, a DNA analyst with the Cuyahoga County Regional 

Forensic Science Laboratory, testified about DNA evidence. A swab of the trigger 

and the grip of the gun found in the car contained a mixture of DNA from five 

contributors. According to Oblock, “[a] match” was identified between the DNA 

in the swab and E.S.’s DNA that was “51.8 quintillion times more probable than a 

coincidental match to an unrelated African American person, 82.2 sextillion times 

more probable than a coincidental match to an unrelated Caucasian person, and 

14.1 sextillion times more probable than a coincidental match to an unrelated 

Hispanic person.” Oblock further testified that “match support for [E.M.] to [the 

DNA in the swab was] inconclusive and no statistical support for a match was 

identified between [the DNA in the swab] and [the female who had fled the car].” 

Oblock further opined, “Likely in this case the majority of that DNA was [E.S.’s].” 

And he testified that E.S.’s DNA had probably been on the trigger and the grip of 

the gun because of primary transfer of the DNA, which occurs when “an individual 

directly leaves [his or her] DNA onto an item.”
SUPREME COURT OF OHIO

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{¶ 14} Kristin Koeth, a firearm and toolmark examiner with the Cuyahoga 

County Regional Forensic Science Laboratory, testified about her analysis of the 

fired bullet that was found in the driver’s side front door of the car, a bullet fragment

that was found in the car, and the handgun and cartridge case that were found in the 

car. She concluded that the fired bullet and the cartridge case had been fired by the 

gun that was found under the front passenger seat but that the bullet fragment had 

not been fired by that gun.

{¶ 15} Dr. Elizabeth Mooney, who performed the autopsy on E.M., testified 

that E.M. died from a gunshot that had entered his upper right chest just below the 

collarbone and exited his upper left back near the armpit. Dr. Mooney opined that 

based on the gunpowder stippling found on E.M.’s body and the lack of soot on 

E.M.’s body, the gun that fired the bullet had been at least a foot away from E.M.

when it was fired. She explained that it would take “some time” for a person with 

such a gunshot wound to lose consciousness, but “not more than a minute * * * or 

so.”

{¶ 16} M.W. was identified as the female who ran from the stolen car after 

it crashed. She testified that E.M. and E.S. were giving her a ride home from a 

party when the police chase started. She confirmed that E.M. was driving the car. 

When asked whether she heard anything when the crash occurred, she testified that

“[i]t was like a crash” and that she heard a ringing noise. This testimony differed 

from the statement she had given to Detective Diaz, who testified that M.W. had 

told him that “there was a loud bang.” According to M.W., E.M. exited the car 

from the driver’s side front door at the same time that she and E.S. exited from the 

passenger-side doors but that E.M. had run in the opposite direction of her and E.S. 

M.W. stated that she never saw a gun in the car.

{¶ 17} Throughout the probable-cause hearing, the juvenile-court judge 

actively questioned many of the state’s witnesses and seemed skeptical about the 

police investigation regarding the incident. For example, when Detective Diaz 
January Term, 2023

7

suggested during his testimony that the fired bullet’s having been found in the 

driver’s side front door was consistent with E.M.’s having been shot while in the 

driver’s seat, the court interjected, “Really?” The court again interjected, “Excuse 

me. Really? Upper chest, comes out his armpit, but the bullet defect is on the top 

of the door above the exit handle and the window. Was he standing up in the car?” 

When Detective Diaz responded, “I don’t know that, ma’am,” the court asked, 

“Seriously, Detective, what’s your theory? Was he standing up in the car?” 

Likewise, the court seemed very concerned that the car had not been processed for 

gunshot residue, and it questioned Detective Manson about why no effort had been 

made to do so.

{¶ 18} Following the probable-cause hearing, the juvenile court issued a 

decision finding that the state had not established probable cause to believe that

E.S. had committed involuntary manslaughter or reckless homicide. However, the 

court found that there was probable cause to believe that E.S. had committed the 

remaining offenses—having a weapon while under a disability, receiving stolen 

property, and improperly handling a firearm in a motor vehicle.

{¶ 19} The state appealed the juvenile court’s judgment to the Eighth 

District, arguing that the juvenile court had erred by finding that there was no 

probable cause to believe that E.S. had committed involuntary manslaughter. In a 

two-to-one decision, the court of appeals affirmed the juvenile court’s judgment. 

2021-Ohio-4606, ¶ 41-44. Like the juvenile-court judge, the court of appeals’ 

majority expressed skepticism about the state’s investigation, stating, “While it is 

credible evidence that E.S.’s DNA was on [the gun found in the car], the evidence 

also shows there were four other individuals’ DNA present there as well. And while 

the state made sure to test to see whether E.M.’s or M.W.’s DNA was a match, they 

did not attempt to match anyone else’s DNA,” id. at ¶ 37. The court noted, “Even 

more strikingly,” the bullet that was found in the driver’s side front door was never 

tested to determine whether it had E.M.’s DNA on it and that “[s]imilarly, the state 
SUPREME COURT OF OHIO

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failed to swab the vehicle for gunpowder residue to at least firmly establish the 

firearm was discharged in the vehicle.” Id. at ¶ 38.

{¶ 20} We accepted the state’s appeal to consider the following proposition 

of law:

In a juvenile bindover probable cause hearing, circumstantial 

evidence is entitled to the same weight as direct evidence in 

determining whether there is probable cause and a reviewing court 

should examine the evidence and inferences in a light most 

favorable to the prosecution.

See 168 Ohio St.3d 1418, 2022-Ohio-3752, 196 N.E.3d 853.

ANALYSIS

{¶ 21} Under Ohio’s statutory scheme, a juvenile’s case is subject to 

mandatory or discretionary transfer to adult court if certain elements are met. 

R.C. 2152.10. But before a juvenile court may transfer a case to adult court, it must 

determine whether there is probable cause to believe that the juvenile committed 

the offense or offenses charged. R.C. 2152.12; Juv.R. 30(A).

Probable cause in juvenile cases

{¶ 22} This court recently clarified what is required to establish probable 

cause. See Martin, 170 Ohio St.3d 181, 2022-Ohio-4175, 209 N.E.3d 688. “The 

substance of all the definitions of probable cause is a reasonable ground for belief 

of guilt. Thus, probable cause exists when the facts and circumstances are sufficient 

to provide a reasonable belief that the accused has committed a crime. The inquiry 

requires the judge to review all the circumstances and make a practical, commonsense decision as to whether probable cause is present.” (Cleaned up.) Id. at ¶ 17.

{¶ 23} In the context of establishing probable cause for purposes of binding 

a juvenile over to adult court, “[t]he state must provide credible evidence of every 
January Term, 2023

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element of an offense to support a finding that probable cause exists to believe that 

the juvenile committed the offense.” Iacona, 93 Ohio St.3d 83, 752 N.E.2d 937, at 

paragraph three of the syllabus. At the probable-cause stage of the proceedings, the 

state need not prove a juvenile’s delinquency beyond a reasonable doubt; instead, 

the state’s burden is to produce evidence that “ ‘raises more than a mere suspicion 

of guilt,’ ” Martin at ¶ 19, quoting Iacona at 93. There is no additional burden on 

the state “to disprove alternate theories of the case at a bindover proceeding.” In re 

A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 61, citing Iacona 

at 96. Nor is there an obligation on the state’s part “to marshal all of its evidence 

at the probable-cause phase.” Martin at ¶ 30.

{¶ 24} In Martin, we also addressed the juvenile court’s role in determining 

whether the state presented sufficient evidence to support a finding of probable 

cause. We concluded that the juvenile court’s assessment of the credibility of the 

state’s evidence is “entitled to deference on review” but that “the juvenile court ‘is 

not permitted to exceed the limited scope of the bindover hearing or to assume the 

role of the ultimate fact-finder.’ ” Id. at ¶ 23, quoting A.J.S. at ¶ 44. “Rather, it is 

tasked only with determining whether the state presented sufficient credible 

evidence of probable cause, and that determination is reviewed de novo.” Id. at

¶ 24.

Probable cause to believe that E.S. committed involuntary manslaughter

{¶ 25} E.S. was charged with involuntary manslaughter in violation of 

R.C. 2903.04(A), which provides, “No person shall cause the death of another * * * 

as a proximate result of the offender’s committing or attempting to commit a 

felony.” “[R.C. 2903.04(A)] requires two things for an involuntary-manslaughter 

conviction: (1) that a felony was committed and (2) that a person’s death was a 

proximate result of the commission of that felony.” State v. Crawford, 169 Ohio 

St.3d 25, 2022-Ohio-1509, 201 N.E.3d 840, ¶ 14.
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{¶ 26} According to the juvenile complaint against E.S., the state alleged 

that E.M.’s death was the proximate result of at least one of three felonies

committed by E.S.: (1) improper handling of a firearm in a motor vehicle, (2) 

having a weapon while under a disability, or (3) receiving stolen property. The 

juvenile court concluded that there was probable cause to believe that E.S. had 

committed the three underlying felonies, so the question is whether there was 

probable cause to believe that E.M.’s death was the proximate result of E.S.’s 

commission of at least one of those felonies. See R.C. 2903.04(A).

{¶ 27} Here, the state presented sufficient evidence raising more than a 

mere suspicion that E.M.’s death was the proximate result of E.S.’s having had a 

weapon while under a disability or having improperly handled that weapon while 

in the stolen car. The state presented evidence during the probable-cause hearing 

showing (1) that the gun that was the basis of the weapons-under-disability and 

improper-handling charges was found under the front passenger seat where E.S. 

had been seated during the car chase, (2) that E.S.’s DNA accounted for most of 

the DNA found on the trigger and the grip of that gun, (3) that a bullet that had been 

fired from that gun was found in the driver’s side front door, (4) that E.M. had been 

in the driver’s seat when the car crashed, (5) that the location of the bullet found in 

the door was consistent with E.M.’s having been shot while he was seated in the 

driver’s seat, and (6) that E.M. died from a gunshot wound. The state’s case was 

built, in part, on circumstantial evidence, but “ ‘circumstantial evidence has no less 

value than [direct or testimonial evidence],’ ” State v. Nicely, 39 Ohio St.3d 147, 

151, 529 N.E.2d 1236 (1988), quoting 1A Wigmore, Evidence, Section 24, at 944

(Tillers Rev.1983).

{¶ 28} The juvenile court’s summary decision does not explain why the 

court did not find probable cause regarding the involuntary-manslaughter charge. 

However, the court’s questions and statements during the probable-cause hearing 

give some insight on how it reached that conclusion, and they suggest that the court 
January Term, 2023

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improperly expected the state “to disprove alternate theories of the case,” A.J.S., 

120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, at ¶ 61, and “marshal all of 

its evidence at the probable-cause phase,” Martin, 170 Ohio St.3d 181, 2022-Ohio4175, 209 N.E.3d 688, at ¶ 30. The court seemed troubled that the state had not 

ruled out other possible causes of E.M.’s death—even going so far as to insinuate 

during the hearing that the Cuyahoga Heights police officers could have been 

responsible, despite the state’s having presented undisputed testimony from 

Detectives Arkley and Diaz that the officers’ guns had not been fired. The court 

also expressed concern that there had been no processing of the car for gunshot 

residue and that the bullet that was retrieved from the driver’s side front door had 

not been tested for the presence of DNA. The court’s questions and statements in 

that regard illustrate that it was functioning not as a gatekeeper for determining 

whether there was probable cause but rather as the ultimate fact-finder. This was 

error.

{¶ 29} While the juvenile court’s reasons for its determination that there 

was no probable cause to believe that E.S. had committed involuntary manslaughter 

must be gleaned from the court’s questions and statements during the hearing, the 

court of appeals’ decision lays bare its errors in reviewing the juvenile court’s 

judgment. In the court of appeals’ decision, the majority questions why the state 

did not “attempt to match anyone else’s DNA” to the DNA on the firearm, 2021-

Ohio-4606 at ¶ 37, and why the bullet that was found in the driver’s side front door 

was not tested for DNA, id. at ¶ 38. And the court takes the state to task for having 

failed to process the stolen car for gunshot residue “to at least firmly establish the 

firearm was discharged in the vehicle.” Id. But at the probable-cause stage of the 

proceedings, the state was not required to eliminate any alternative theories or to 

“firmly establish,” id., any fact. The court of appeals erred when it determined that 

the state’s evidence was insufficient to establish probable cause regarding the 

involuntary-manslaughter charge.
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CONCLUSION

{¶ 30} Both the juvenile court and the court of appeals held the state to a 

burden not required for the purpose of establishing probable cause in a bindover 

proceeding. The evidence presented by the state—both circumstantial and direct—

was sufficient to establish probable cause to believe that E.S. had committed the 

offense of involuntary manslaughter. We therefore reverse the judgment of the 

Eighth District Court of Appeals and remand the case to the juvenile court for 

further proceedings consistent with this opinion.

Judgment reversed

and cause remanded.

KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, and 

BRUNNER, JJ., concur.

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Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel 

T. Van, Eben McNair, and Gregory Ochocki, Assistant Prosecuting Attorneys, for

appellant.

Timothy Young, Ohio Public Defender, and Timothy B. Hackett, Assistant 

Public Defender, for appellee.

Dave Yost, Attorney General, Michael J. Hendershot, Chief Deputy 

Solicitor General, and Samuel C. Peterson, Deputy Solicitor General, urging 

reversal for amicus curiae, Ohio Attorney General Dave Yost.

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