STATE OF OHIO, PLAINTIFF-APPELLEE, v. KORBEN R. EVERHARDT, DEFENDANT-APPELLANT.
CASE NO. 5-17-25
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY
April 2, 2018
[Cite as State v. Everhardt, 2018-Ohio-1252.]
Appeal from Hancock County Common Pleas Court Trial Court No. 2017 CR 179
Judgment Affirmed
Date of Decision: April 2, 2018
APPEARANCES:
Howard A. Elliot for Appellant.
Phillip A. Riegle for Appellee.
{¶1} Defendant-appellant, Korben Everhardt (“Everhardt“), brings this appeal from the August 24, 2017, judgment of the Hancock County Common Pleas Court sentencing Everhardt to an aggregate 5-year prison term after Everhardt pled no contest to, and was found guilty of, Felonious Assault in violation of
Relevant Facts and Procedural History
{¶2} On November 20, 2016, Everhardt went to a parking lot to engage in a fistfight with T.G., a 17-year-old male who was dating Everhardt‘s ex-girlfriend. Everhardt brought a 9mm handgun to the scene and he shot T.G. in the stomach. T.G. suffered significant injuries requiring immediate surgery, though he ultimately survived the gunshot wound.
{¶3} On November 21, 2016, a complaint was filed in the Hancock County Common Pleas Court, Juvenile Division, alleging that Everhardt was a delinquent child by means of committing Felonious Assault in violation of
{¶4} On November 21, 2016, the State filed a “Motion to Relinquish Jurisdiction,” requesting that Everhardt‘s case be transferred to the general division of the common pleas court.
{¶5} On May 22, 2017, the Juvenile Court held a hearing on the State‘s motion to relinquish jurisdiction. At the inception of the hearing, the parties entered into a number of stipulations. They included, inter alia,
2. The alleged delinquent child, [Everhardt]‘s date of birth is February 15, 2000 and he was sixteen (16) years of age on the date of the acts charged in the Complaint[;]
* * *
5. [Everhardt] stipulates to this Court finding that Probable Cause exists as to the acts charged in the Complaint. * * *
6. More specifically, * * * on November 20, 2016, [Everhardt] shot [T.G.] * * * in the stomach with a Hi-Point Model C-9, 9mm Luger handgun * * * at approximately 5:25 p.m., in the Family Center parking lot located * * * in the City of Findlay, in Hancock County, Ohio. Further, the parties stipulate and agree that said handgun was test-fired by Detective Matthew Tuttle of the Findlay Police Department on December 6, 2016, and the same was found to be a properly functioning firearm[;]
7. The parties further stipulate that [T.G.] suffered serious physical harm * * * as a result of the acts charged in the Complaint as defined in
Ohio Revised Code §2901.01(A)(5) [.]* * *
19. The parties herein stipulate to the admission into evidence of * * * a photograph of a screen shot of [Everhardt‘s] Facebook posting pointing a handgun taken at 6:02 p.m. on November 20, 2016 [the date of the incident], and said photo was posted on Facebook three (3) hours earlier [prior to the incident][.] * * *
23. Likewise, the parties stipulate to the admission into evidence * * * of [a search on Everhardt‘s cell phone that read] “How many years do you get for attempted mu[.]”
* * *
29. The parties hereby stipulate that on November 20, 2016, the date of the acts charged in the Complaint * * * Everhardt, was awaiting adjudication for:
a) a juvenile tobacco offense contrary to
Ohio Revised Code §2151.87 in Hancock County Juvenile Court No. 20162197 which was filed on August 30, 2016 and the same was subsequently dismissed without prejudice by this Court on December, 2016, due to other pending matters; andb) a delinquency offense of Possession of Drugs, which would be a minor misdemeanor if committed by an adult contrary to
Ohio Revised Code §2925.11(A) and2152.02 , from the alleged date of violation of September 22, 2016, in Hancock County Juvenile Court Case No. 20162223, and said matter is still pending in this Court[.]30. The parties agree and stipulate that [T.G.] was unarmed during the incident[;]
31. Also, the parties stipulate and agree that the only weapon the police found in the vehicle that [the victim] traveled to the Family Center * * * in was a small folding knife[.]
(Doc. No. 1o, Journal Entry of Stipulations).
{¶7} With Everhardt stipulating to his age and the existence of probable cause in this case, the juvenile court proceeded to hold a hearing on the remaining prong of discretionary transfer, specifically whether Everhardt was amenable to treatment in the juvenile justice system. Two witnesses provided testimony at the hearing, beginning with Rich Schmidbauer, the director of the juvenile detention center where Everhardt had been confined.
{¶8} Schmidbauer testified as to Everhardt‘s conduct while he had been in the detention center. Schmidbauer indicated that Everhardt‘s behavior toward others in the detention center was “very nearly predatory.” (Tr. at 23). Schmidbauer testified that Everhardt treated his misdeeds like a joke, such as when he violated rules by spitting in the hallway or telling another individual to hang himself. Schmidbauer also testified that Everhardt initiated contact with other children while in detention and made “constant comments” verbally, that “walked right up to the point of there being threats of fist fights.” (Tr. at 31).
{¶10} Schmidbauer indicated that children were typically in his center for only two weeks and Everhardt was there for a number of months. Schmidbauer testified that he was unsure what to do with Everhardt due to his behavior so he sought help from Timothy Brown, the executive director of the Wood County Juvenile Court. Schmidbauer testified that once Brown began meeting with Everhardt, there was a marked improvement in Everhardt‘s behavior and compliance.
{¶11} Timothy Brown then testified at the hearing. He indicated that he began meeting with Everhardt in March of 2017. Brown testified that he thought
{¶12} Brown testified that when he was brought in to intervene Everhardt was “bad.” (Tr. at 92). Brown believed that Everhardt was easily influenced by his peers but he found Everhardt to be self-reflective and that Everhardt wanted to change. Brown thought Everhardt might respond well to professional help, so he got Everhardt into counseling. Brown indicated that since he had started meeting with Everhardt, the behavior of Everhardt had improved and Brown no longer had the same concerns that he had previously for the safety of his facility.
{¶13} At the conclusion of the hearing, the trial court indicated that it would take the testimony and all the stipulated exhibits under advisement and rule accordingly. Of the most notable information in the exhibits, there were the psychological/psychiatric evaluations of Dr. Tennenbaum and Dr. Sherman opining that Everhardt was not mature enough for transfer to adult court. The reports from Everhardt‘s stay in the juvenile detention center were also included as exhibits, as were the hospital records of the victim, T.G.
{¶14} On June 5, 2017, the Hancock County Common Pleas Court, Juvenile Division, filed its judgment entry transferring Everhardt and binding him over to the Hancock County Common Pleas Court. In its entry, the juvenile court addressed all factors found in
{¶15} On June 13, 2017, Everhardt was indicted in the Hancock County Common Pleas Court for one count of Felonious Assault in violation of
{¶16} Although Everhardt originally pled not guilty, he later tendered a plea of no contest to the charge and the specification. The parties jointly recommended a mandatory prison sentence of 3 years on the firearm specification and 2 years in prison on the Felonious Assault charge, consecutive to each other, for an aggregate 5-year prison term. The trial court accepted Everhardt‘s pleas, had the State recite
{¶17} A judgment entry memorializing Everhardt‘s conviction and sentence was filed August 24, 2017. It is from this judgment that Everhardt appeals, asserting the following assignment of error for our review.
Assignment of Error
The Hancock County Juvenile Court erred and abused its discretion in deciding that the Defendant/Appellant should be bound over to the Hancock County Common Pleas Court to be treated as an adult.
{¶18} In his assignment of error, Everhardt argues that the juvenile court abused its discretion in determining that Everhardt should be bound over to the Hancock County Common Pleas Court. He argues, in part, that the juvenile court did not place enough emphasis on the evaluations by mental health professionals indicating Everhardt was amenable to rehabilitation in the juvenile justice system, and Brown‘s testimony regarding Everhardt‘s vast improvement since Brown‘s intervention during Everhardt‘s detention.
Standard of Review
{¶19} The Supreme Court of Ohio has consistently applied the abuse-of-discretion standard in the review of discretionary-transfer proceedings from juvenile court to the general division of common pleas court. In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, ¶ 14; State v. Watson, 47 Ohio St.3d 93, 95 (1989). “[A]n
The Transfer Process
{¶20}
{¶21} The first two requirements of
{¶22} In determining whether Everhardt should be transferred from the juvenile system a juvenile court must examine factors in
{¶23} The factors favoring transfer are listed in
(D) In considering whether to transfer a child under division (B) of this section, the juvenile court shall consider the following relevant factors, and any other relevant factors, in favor of a transfer under that division:
(1) The victim of the act charged suffered physical or psychological harm, or serious economic harm, as a result of the alleged act.
(2) The physical or psychological harm suffered by the victim due to the alleged act of the child was exacerbated because of the physical or psychological vulnerability or the age of the victim.
(3) The child‘s relationship with the victim facilitated the act charged.
(4) The child allegedly committed the act charged for hire or as a part of a gang or other organized criminal activity.
(5) The child had a firearm on or about the child‘s person or under the child‘s control at the time of the act charged, the act charged 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 adjudication or disposition as a delinquent child, was under a community control sanction, or was on parole for a prior delinquent child adjudication or conviction.
(7) The results of any previous juvenile sanctions and programs indicate that rehabilitation of the child will not occur in the juvenile system.
(8) The child is emotionally, physically, or psychologically mature enough for the transfer.
(9) There is not sufficient time to rehabilitate the child within the juvenile system.
The factors that weigh against transfer are listed in
(E) In considering whether to transfer a child under division (B) of this section, the juvenile court shall consider the following relevant factors, and any other relevant factors, against a transfer under that division:
(1) The victim induced or facilitated the act charged.
(2) The child acted under provocation in allegedly committing the act charged.
(3) The child was not the principal actor in the act charged, or, at the time of the act charged, the child was under the negative influence or coercion of another person.
(4) The child did not cause physical harm to any person or property, or have reasonable cause to believe that harm of that nature would 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 psychologically 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 the juvenile system and the level of security available in the juvenile system provides a reasonable assurance of public safety.
Juvenile Court‘s Analysis of
{¶24} In this case, the juvenile court addressed all of the factors in
{¶25} With regard to
{¶26} With regard to factor (D)(2), which concerns whether the age of the victim made him more vulnerable, the juvenile court made no finding under this factor favoring or disfavoring transfer. The victim was 17 at the time of the shooting. The juvenile court found that there was no indication his age made him more vulnerable. However, he was still classified as a child under Ohio law.
{¶27} With regard to factor (D)(3), the juvenile court determined that the relationship between Everhardt and the victim facilitated the offense, favoring transfer. The record indicated that Everhardt and the victim knew each other as the victim was dating Everhardt‘s ex-girlfriend. It was this relationship that caused them to convene for a fist fight on the night of the incident.
{¶28} Factor (D)(4) concerns gang activity or committing the alleged act for hire. There was no evidence of that here, and the juvenile court found that this factor did not apply.
{¶29} Factor (D)(5) concerns Everhardt‘s use of a firearm. Here the parties stipulated that Everhardt used a handgun and shot the victim. There is also a photograph in the record of Everhardt posing with the handgun shortly before the incident. The juvenile court found that this factor weighed in favor of transfer.
{¶31} Factor (D)(7) concerns whether any prior sanctions or programs indicated that rehabilitation of the child would not occur in the juvenile system. Under this factor, the juvenile court noted Everhardt‘s behavior when he first entered the juvenile detention center and the description of him as a “predator, plain and simple.” (Tr. at 53). The juvenile court then went on to note that Everhardt had apparently improved since meeting with Timothy Brown.
{¶32} Nevertheless, the juvenile court found that Everhardt‘s change in behavior was questionable given that the timing coincided with knowledge of the impending amenability hearing. The juvenile court found that the “records show that Everhardt is compliant when things go his way, but very noncompliant when they do not.” (Doc. No. 1s). Thus while the juvenile court noted that there was conflicting evidence on this factor, it ultimately determined that the factor favored transfer.
{¶33} The juvenile court addressed factors (D)(8) and (D)(9) together, which concern whether Everhardt was emotionally, physically, or psychologically mature enough for the transfer and whether there was sufficient time to rehabilitate him
{¶34} However, the juvenile court noted that many of the assertions made by the doctors relied on self-reporting by Everhardt, some of which the juvenile court found was inaccurate. The juvenile court went on to identify and analyze a number of the inaccuracies that Everhardt had self-reported to the doctors, such as his claim that he was under the influence of alcohol at the time of the incident. Nevertheless, the juvenile court ultimately concluded that despite the self-reported inconsistencies, the doctors were experts in their field and the juvenile court would accept their position that factors (D)(8) and (D)(9) weighed against transfer.
{¶35} After reviewing the factors in
{¶37} With regard to factor (E)(3) concerning whether Everhardt was the principal actor, the juvenile court found that as Everhardt was the principal actor, this factor did not weigh against transfer. Similarly, the victim did suffer serious physical harm, thus (E)(4) did not weigh against transfer.
{¶38} The juvenile court found that Everhardt had not been adjudicated delinquent at the time of the alleged act, weighing against transfer in factor (E)(5), and that (E)(6)/(7) weighed against transfer based on the doctors’ reports stating that Everhardt was not emotionally, physically, and psychologically mature enough for transfer. Finally, with regard to factor (E)(8), the juvenile court found the level of security available in the juvenile system did not provide a reasonable assurance of public safety, thus the juvenile court determined that this factor did not weigh against transfer.
{¶39} On balance, the juvenile court weighed the evidence and reached the following conclusion.
Taking into account the number of services provided to Everhardt, his lack of motivation to change, his failure to take part in previous treatments, his plan in taking a firearm, his act of shooting another juvenile at close range, and his leaving the
scene with seeking no assistance for the victim, the Court finds that the level of security available in the juvenile system does NOT provide a reasonable assurance of public safety.
Based upon the testimony and evidence presented, and after a full review and weighing of the factors in favor of and against transfer of jurisdiction, this Court hereby GRANTS the motion to relinquish jurisdiction. The Court finds that the premeditation by the child, the callousness displayed by the child in the commission of this offense, and the severity of the crime charged provides the Court with NO reasonable assurance of public safety for the community if this child were to remain in the juvenile system.
(Doc. No. 1s).
Argument and Analysis
{¶40} On appeal, Everhardt argues that the juvenile court‘s analysis and its ultimate judgment amounted to an abuse of discretion. Specifically, Everhardt takes issue with the juvenile court‘s failure to weigh the doctors’ evaluations more heavily when balancing the factors. Everhardt also argues that he was doing better after his meetings with Brown and after going to counseling. Combining this with the doctors’ evaluations indicating that Everhardt was not physically and emotionally mature enough for transfer, Everhardt argues that, on balance, the juvenile court abused its discretion and that there was actually sufficient time to rehabilitate him in the juvenile justice system. He contends this is particularly true given that he had a lower IQ, that he may have had some mental health issues, and that he was under some provocation.
{¶42} Notably, the juvenile court expressed some doubts about the authenticity of Everhardt‘s behavioral improvements and it further expressed doubt about the complete accuracy of the doctors’ evaluations given that Everhardt was, at least to some extent, reporting incorrect information. Even with these reservations, the juvenile court still gave some weight and authority to the doctors’ opinions.
{¶43} Importantly, a juvenile court is not bound by any expert opinion, and may assign any weight to the expert opinion that it deems appropriate. Easley, 2016-Ohio-7271 at ¶ 15, citing State v. Reeder, 10th Dist. Franklin No. 15AP-203, 2016-Ohio-212, ¶ 24. Ohio appellate courts have routinely affirmed discretionary transfer determinations even where experts have opined that the juvenile is not mature enough for transfer or opined that the juvenile was otherwise amenable to rehabilitation in the juvenile justice system. See State v. Morgan, 10th Dist.
{¶44} An abuse of discretion standard of review is deferential and does not permit an appellate court to simply substitute its judgment for the trial court. State v. Dyer, --- Ohio St.3d ---, 2017-Ohio-8758, ¶ 24. Here the evidence depicts that Everhardt committed a very serious crime with a firearm, which resulted in serious physical harm to the victim. The record notes a number of difficulties with Everhardt during his stay in the juvenile detention center. While there may have been some improvements in his behavior and the doctors may have recommended that Everhardt remain in the juvenile justice system, we cannot find that under these circumstances the juvenile court abused its discretion when considering all of the evidence before it. The juvenile court simply found that, on balance, the severity of the crime combined with a number of other factors outweighed the doctors’ opinions that Everhardt could be rehabilitated in the juvenile justice system. Although not explicitly listed in
{¶45} For the foregoing reasons Everhardt‘s assignment of error is overruled and the judgment of the Hancock County Common Pleas Court is affirmed.
Judgment Affirmed
ZIMMERMAN and PRESTON, J.J., concur.
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