[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-Ohio274 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

5 It 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.