In re D.M.S.

170 N.E.3d 61

IN RE: D.M.S.

No. 28783

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on April 9, 2021

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellant.

JON PAUL RION, Atty. Reg. No. 0067020 and CATHERINE H. BREAULT, Atty. Reg. No. 0098433, 130 West Second Street, Suite 2150, Dayton, Ohio 45402, Attorneys for Defendant-Appellee.

OPINION

TUCKER, P.J.

{¶ 1} The State of Ohio appeals from the order of the Montgomery County Court of Common Pleas, Juvenile Division, which concluded that the State had not established probable cause that D.M.S. had committed an offense which, if committed by an adult, would constitute reckless homicide. For the following reasons, we reverse and remand.

I. Facts and Procedural History

{¶ 2} On Friday, December 13, 2019, D.M.S. and Jarell Roberts arrived at the apartment of their friend, Noah Channell, between 4:00 and 5:00 p.m. The three young men were "hanging out," discussing their plans for the night, and smoking marijuana. At approximately 6:00 p.m., D.M.S. and another friend, D.P.C., began a video FaceTime call. During the call, D.P.C. observed D.M.S. waving a handgun.¹ He also observed D.M.S. pull back the slide on the gun. At some point, D.M.S. turned his cellular telephone around so that D.P.C. could see what D.M.S. was observing. D.P.C. described what he saw as being akin to a first person video game. D.P.C. could see that D.M.S. was holding his gun directly under his telephone in such a manner that D.P.C. could see the barrel of the gun and the direction in which it was aimed. D.P.C. observed D.M.S. point the gun at Channell. He also saw Channell rise out of his chair, then heard a bang and saw a white flash. D.P.C. testified that the screen then went dark, and he heard D.M.S. say, "Noah," and "oh no."

{¶ 3} Kettering Police Officer Devin Maloney responded to Channell's apartment following a report of a shooting. When he entered the apartment, he observed Channell on the floor in the doorway connecting the dining and living rooms. Maloney also observed two other young men in the dining room. Maloney observed a gun on a shelf that was just below his eye level.

{¶ 4} According to Maloney, D.M.S. was highly emotional, crying, and yelling. When Maloney asked him what had occurred, D.M.S. made a motion like he was pulling a slide on a gun. D.M.S. then pulled his arm backward as if demonstrating a recoil after firing. D.M.S. then stated, "it just went off." Tr. p. 59. Prior to that moment, Maloney had believed Channell's injury had been self-inflicted.

{¶ 5} Maloney took D.M.S. outside, at which time a neighbor with a cellular telephone approached. The neighbor handed the telephone to D.M.S. and indicated that Channell's mother was on the telephone. Maloney heard D.M.S. say "he was sorry and that Noah was shot." Tr. p. 62. Maloney then took the telephone and informed Channell's mother that her son was being transported to the hospital. Another officer placed D.M.S. into a cruiser. Maloney then met Channell's father who had just arrived home; Maloney informed him about the shooting and that Channell was being transported to a hospital. Maloney then went to Miami Valley Hospital, where he learned that Channell had died.

{¶ 6} D.M.S. was taken to the police department where he was interviewed by Kettering Detective Douglas Kowalski. Initially, D.M.S. told Kowalski that he had had the gun in his waistband. He indicated he removed it and was laying it on the dining room table when it discharged and struck Channell, who was on the opposite side of the dining room table. D.M.S. stated he did not think his finger had been on the trigger. D.M.S. would not discuss how he obtained the gun but indicated he had it for protection. D.M.S. stated the gun's magazine had 11 bullets, but a bullet was in the chamber. He further indicated he knew how to handle and use a gun because he had been to a shooting range when he was younger. At that point, Kowalski halted the interview in order to speak with D.P.C.

{¶ 7} When Kowalski returned to the interview room, he confronted D.M.S. with D.P.C.’s statement that D.M.S. had been playing with the gun, had pointed it at both Channell and Roberts, and had pulled the gun's trigger. At this point, D.M.S. admitted his actions were similar to playing a video game called "Call of Duty," which Kowalski described as a first-person shooting game in which the player has the viewpoint of a video character. D.M.S. admitted he was playing with the gun while on the telephone with D.P.C., but stated the magazine was not in the gun when he pointed it at his friends and pulled back the slide. He insisted he had double-checked to make sure the magazine was not in the gun, and he did not pull the trigger when aiming at Channell. D.M.S. indicated that he then reinserted the magazine and placed the gun into his waistband. D.M.S. claimed he then pulled the gun out of his waistband and was placing it on the table when it discharged. D.M.S. stated he did not know how a bullet was inserted into the gun's chamber and then, contrary to his earlier statement, indicated he was not sure how guns work.

{¶ 8} Kowalski again halted the interview in order to speak with other officers about the shooting. He then returned to the interview room and informed D.M.S. that D.P.C. saw D.M.S. point the gun at Channell and pull the trigger. D.P.C. also heard a loud bang and observed a white flash. At this point, D.M.S. "indicated that if that's the way that it was described, then that may have been the way that it happened." Tr. p. 95.

{¶ 9} A delinquency complaint was filed in the juvenile court alleging that D.M.S. committed an offense that would constitute reckless homicide if committed by an adult. The State subsequently amended the complaint to add a firearm specification to the charge of reckless homicide. The State also filed a motion for a discretionary bindover to transfer jurisdiction of the case to the common pleas court's general division so that D.M.S. could be prosecuted as an adult.

{¶ 10} The juvenile court conducted a hearing on probable cause during which the above-cited evidence was introduced. The State and D.M.S. stipulated that he was age 17 at the time of the offense.

{¶ 11} After the hearing on the State's motion, the juvenile court found there was not probable cause to find that D.M.S. had committed the act charged. In so finding, the court stated:

The State argues that "a defendant may be guilty of reckless homicide for an unintentional shooting if the evidence supports a finding that he handled a firearm in a reckless manner, resulting in another person's death. * * * D.M.S. asks the Court to consider O.R.C. 2903.05 and the legislative intent behind that statute.

O.R.C. 2903.05(A) directs that "no person shall negligently cause the death of another * * * by means of a deadly weapon or dangerous ordinance." It is well established that "[a] person acts negligently when because of a substantial lapse from due care, the person fails to perceive or avoid a risk that the person's conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, the person fails to perceive or avoid a risk that such circumstances may exist." O.R.C. 2901.22(D). The legislative intent behind O.R.C. 2903.05 was to address "the person who points a firearm in jest and kills the unfortunate at whom it is aimed." 1974 Committee Comment to H511.

The distinction between reckless homicide and negligent homicide is whether the defendant acted with heedless indifference to [the consequences], disregarding a substantial and unjustifiable risk, or whether a defendant failed to perceive or avoid a risk due to a substantial lapse of due care.

The Court has carefully and fully considered the evidence presented, as well as the arguments of the parties, and is simply unable to find the State sufficiently proved that D.M.S. acted with heedless indifference to consequences while disregarding a substantial and unjustifiable risk. The State has failed to contradict the testimony of D.M.S. that he had removed the clip from the gun before he began playing with it and further did not believe that there was a bullet in the chamber of the gun. The evidence further indicated that on the evening of December 13, 2019, D.M.S. was unsure how the weapon discharged. While the events of December 13, 2019, were undeniably catastrophic and heartbreaking, the Court cannot find that a person who accidentally shot another with a gun that he believed to be unloaded by his own hand and therefore harmless acted with heedless indifference to consequences while disregarding a substantial and unjustifiable risk.

Order (Mar. 27, 2020).

{¶ 12} The court thus denied the state's discretionary bindover motion.

{¶ 13} The State appeals.

II. Probable Cause Analysis

{¶ 14} The State's sole assignment of error states as follows:

D.M.S.'S IRRESPONSIBLE USE OF A LOADED GUN AND AIMING IT AT NOAH CHANNELL, ALONG WITH D.M.S.'S PRIOR EXPERIENCE OF FIRING GUNS, UNDERMINES THE TRIAL COURT'S FINDING THAT THE STATE FAILED TO ESTABLISH PROBABLE CAUSE TO BELIEVE THAT D.M.S. RECKLESSLY KILLED NOAH CHANNELL. THE TRIAL COURT ERRED, THEREFORE, IN NOT FINDING PROBABLE CAUSE.

{¶ 15} In challenging the juvenile court's judgment, the State asserts it presented credible evidence of every element of the offense of reckless homicide to support a finding of probable cause to believe that D.M.S. committed an act which, if committed by an adult, would constitute the offense of reckless homicide.

{¶ 16} "A ‘delinquent’ child is one who violates any federal or state law or ordinance of a political subdivision, other than a juvenile traffic offender, if the...