COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70215 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION LAURESE GLOVER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 16, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-324431(B) JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor By: MICHAEL D. HORN (#0019476) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DANIEL W. TAYLOR (#0020978) 2200 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1901 - 2 - SPELLACY, C.J.: Defendant-appellant Laurese Glover ("appellant") appeals his conviction for murder. Appellant assigns the following errors for review: I. MR. GLOVER'S DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AS HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. II. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSES HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. III. THE TRIAL COURT ERRED BY DENYING LAURESE GLOVER'S CRIMINAL RULE 29 MOTION FOR ACQUITTAL WHERE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION, THEREBY VIOLATING DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER THE FOURTEENTH AMENDMENT AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION. IV. THE TRIAL COURT ERRED BY DEPRIVING LAURESE GLOVER OF DUE PROCESS OF LAW, THEREBY VIO- LATING DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS AND SEC- TION 10 ARTICLE I OF THE OHIO CONSTITUTION. V. LAURESE GLOVER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN HIS COUNSEL FAILED TO OBJECT TO THE PRIVATE MEETING CONDUCTED BETWEEN THE TRIAL COURT AND THE JURY DURING THE COURSE OF ITS DELIBERATIONS. VI. THE JUVENILE COURT ERRED BY BINDING OVER LAURESE GLOVER TO BE (SIC) THE TRIAL COURT TO STAND TRIAL AS AN ADULT. - 3 - Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. Shortly before 6:00 p.m. on February 10, 1995, nineteen-year old Clifton Hudson was gunned down as he stood on the sidewalk of Strathmore Road in East Cleveland. Later that night, appellant and Derrick Wheat were arrested at Wheat's home for the shooting. Appellant, born on May 19, 1978, was sixteen years and nine months of age. Early the next morning, Eugene Johnson, a companion of appellant and Wheat, also was arrested. A complaint was brought in juvenile court alleging appellant was a delinquent child because he unlawfully and purposefully caused the death of Hudson. Juvenile court held a hearing on the matter for all three of the boys. Juvenile court found the evidence presented at the hearing to be sufficient to establish probable cause. Juvenile court found appellant would not be amenable to juvenile treatment or rehabilitation. The motion to transfer jurisdiction of the case to the court of common pleas was granted. Appellant was bound over to be tried as if he were an adult. Appellant, Wheat, and Johnson were indicted for aggravated murder with a firearm specification. Trial commenced on January 8, 1996. The three were tried together. Oral statements made to police by the defendants shortly after their arrest were introduced into evidence. Wheat's statement was that on February 10, 1995, at - 4 - around 5:30 p.m., he was being driven home by appellant in appellant's black Chevy Blazer. Wheat sat in the front passenger's seat while Johnson rode in the back. Appellant drove north on Strathmore Road until he reached a stop sign. Wheat observed the victim walking on the sidewalk on Strathmore. The victim was approached by a tall, slender, young male wearing a dark blue jacket. The male pulled out what Wheat believed to be a revolver and shot the victim about five times. Wheat saw the shooter stand over the victim. Appellant drove to a house on Shaw Avenue and parked in the driveway. Appellant then walked across the street to his girlfriend's house. Wheat and appellant met up later that night and went to Wheat's house where they were arrested. Appellant stated he, Wheat, and Johnson left appellant's home at 1838 Knowles at approximately 5:00 p.m. The three drove to Strathmore in appellant's black Blazer. Appellant stopped the Blazer at the stop sign at the corner of Strathmore and Manhattan. He observed a tall, slim, black male wearing blue jeans, and a dark hooded sweatshirt under a blue coat walking down Strathmore. Another male was standing near the stop sign. The male in the blue coat tapped the second male on the shoulder. When the second male turned around he began to run. The male in the blue coat shot the victim several times. Appellant turned right on Manhattan, almost striking another vehicle. He drove to Shaw and parked in the driveway of a home there. Appellant walked across Shaw to his girlfriend's house. Appellant left several hours later and - 5 - returned to his home. He and Wheat were arrested later at Wheat's home. Johnson stated that about 2:00 p.m., on February 10, 1995, he was at appellant's house with appellant and Wheat. The three talked and smoked marijuana. They left around 5:30 p.m. in appellant's black Chevy Blazer. Wheat sat in the front passenger seat while Johnson sat in the back. When stopped at Strathmore and Manhattan, Johnson observed the victim walking down Strathmore toward Manhattan. The victim was approached from behind by a young, tall, slender male wearing a dark brown jacket. This male had a gun and appeared to be robbing the victim. Johnson heard about six gunshots as he observed the suspect stand over the victim. Appellant turned right onto Manhattan and dropped Johnson off at his home. Tamika Harris, age fifteen years old at the time of trial, testified that on February 10, 1995, at about 5:45 p.m., she was walking home on Strathmore in the company of her friend, Monique. Harris heard two gunshots but did not see from where the gunshots were fired. Monique turned and ran back toward her home. Harris observed a black four-by-four vehicle stopped in the street. Harris saw a male in the street, coming from around the vehicle. The male stood in the street and fired five more shots at Hudson who was on the sidewalk. The black four-by-four was stationary on Strathmore while the shooting took place. After the last shot was fired, the vehicle made a right turn onto Manhattan, swerving - 6 - around another car to avoid hitting it. The shooter passed by Harris' position as he ran after the black Blazer. The vehicle slowed down as the shooter ran after it. Harris saw the face of the male as he ran past her. Harris had observed two black people in the front seat of the Blazer. Harris talked to the police at the scene and made a statement that day at the police station. In her statement, Harris said she saw a guy get out of a black, four-by-four with tinted windows and pull a gun from his pants. At trial, Harris testified she did not observe a male get out of the black vehicle and did not see from where the gun came. Harris testified she assumed the male came from the Blazer. In the statement, Harris said she did not see the face of the shooter that clearly and could not identify him. She also stated the suspect was 5'7" in height or taller with a medium complexion. The perpetrator was wearing a red and blue Tommy Hilfiger coat, a black skullcap and black pants. Harris returned to the police station the next day and was shown pictures of the three defendants. Harris identified Johnson's picture without hesitation as being that of the shooter. She also identified a maroon, blue, and green Nautica coat and black hooded sweatshirt as the clothing worn by the suspect. The clothing belonged to Johnson. Harris testified that Nautica and Tommy Hilfiger coats are very similar. Harris was shown appellant's vehicle, a GMC Jimmy, which she identified as the one she observed at the scene of Hudson's murder. - 7 - The police tested the hands and clothing of all three defendants for gunshot residue. The results from both of Wheat's hands were consistent with gunshot residue. The test indicates whether a person has either recently fired a gun or has been in close proximity of a gun discharged. If a significant reaction for antimony and barium is found, the quantity of both indicates the source was a gunshot. Neither appellant's nor Johnson's hands tested positive for gunshot residue. Two nitrite particles were found in the back left sleeve of Wheat's Indians jacket. Both appellant's jacket and that of Johnson tested negative for blood and nitrite particles. Gloves found in the pocket of Johnson's jacket also were tested. Antimony and barium consistent with gunshot residue were found on the palm of the left glove. The palm of the right glove yielded an inconclusive reaction. Appellant's vehicle was tested for the presence of lead residue and nitrites. The presence of lead was detected on the bottom of the front passenger's seat, the armrest on the passenger's side door, and on the exterior of the passenger's side door below the window. The residue was consistent with a firearm having been discharged. After the prosecution rested, the defense made a Crim.R. 29 motion. The trial court found insufficient evidence to establish prior calculation and design. The charge of aggravated murder was - 8 - dismissed. The trial court found sufficient evidence to proceed on the murder charge. Leroy Malone testified for the defense that on February 10, 1995, he was parking his truck on Ardenall Avenue, which is the next street over from Strathmore. Malone heard two shots fired followed by three additional shots. A black Ford Bronco drove out from under the bridge and onto Ardenall. Another man was running on foot behind the Bronco. That man put something in his pants just before he got to Ardenall. The man then ran down to the railroad tracks toward Shaw. Malone was familiar with all three defendants as they lived in the neighborhood. Malone testified the person he saw running behind the black truck was not any of the defendants. Eric Reed testified he lived on Strathmore at the time of the murder. Reed heard a few shots fired and looked out his window. He saw one man holding a gun, standing over another male who was lying on the sidewalk. The man holding the gun was described as being about 5'11" in height with a light complexion. He was wearing a dark jacket and a hooded sweatshirt. The jury found appellant guilty of murder and not guilty of the gun specification. Appellant received a sentence of fifteen years to life. II. In his first assignment of error, appellant contends his conviction was not supported by sufficient evidence. Appellant - 9 - argues the only evidence against him came from the testimony of Tamika Harris that she observed a black Blazer near the scene at the time of the murder which was driven away immediately after the shooting. Also, appellant admitted observing the shooting but denied any involvement. Appellant argues his mere presence at the scene does not make him an aider and abettor unless there is evidence he did an overt act in furtherance of the crime. Appellant maintains no such evidence was presented at trial. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. The evidence must be viewed in the light most favorable to the prosecution. State v. Jenks (1991), 71 Ohio St.3d 259. R.C. 2903.02 governs the offense of murder. It provides that no person shall purposely cause the death of another. A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature. R.C. 2901.22(A). Appellant admitted driving the vehicle in which Johnson and Wheat were passengers. Johnson was identified by Harris as the shooter. Wheat's hands and jacket both resulted in test results - 10 - consistent with gunshot residue. Johnson's glove yielded the same result. Lead residue consistent with a gun having been fired was found on appellant's vehicle on the front passenger's seat, the passenger's sidedoor armrest, and below the window on the passenger's door. Appellant and his co-defendants were at the scene at the time of the murder. There was both eyewitness testimony and physical evidence showing that the three were involved in the shooting. The evidence supported the prosecution's theory Wheat and Johnson both shot at Hudson. Wheat and Johnson were passengers in appellant's vehicle at the time. Therefore, appellant, by driving the truck, did an overt act in furtherance of the crime. Appellant's conviction was supported by sufficient evidence. Appellant's first assignment of error is overruled. III. In his second assignment of error, appellant asserts the jury's verdict was against the manifest weight of the evidence. Appellant argues Harris first could not identify the person she saw fire the gun. Also, her description of the shooter changed as did her story of what she observed. Further, testimony was presented that the perpetrator of Hudson's murder was not any of the three defendants. When reviewing a challenge to the weight of the evidence, the test is whether, after reviewing the entire record and probative evidence and the inferences reasonably drawn from the evidence, the - 11 - court determines that the trier of fact clearly lost its way when resolving conflicts in the evidence and created a manifest mis- carriage of justice such that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175. It is the trier of fact who is best able to weigh the evi- dence and pass on the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230. Only if reasonable minds could not fail to find reasonable doubt of a defendant's guilt will an appellate court reverse a conviction as being against the manifest weight of the evidence. State v. Thomas (1982), 70 Ohio St.2d 79. The inconsistencies in the description by Tamika Harris of the person she witnessed shoot Hudson were brought out repeatedly during trial. Primarily, it is for the trier of fact to resolve the inconsistencies and conflicts in the evidence presented at trial. Tamika Harris identified Eugene Johnson as the shooter and stated Johnson was near the back of appellant's vehicle when she first saw him. Johnson, Wheat and appellant all stated Johnson was the backseat passenger in appellant's GMC Jimmy. Harris also identified Johnson's clothing and appellant's vehicle. The changes in her statements with regard to her description of the suspect's clothing and physical appearance were brought out under cross- examination. Those inconsistencies and the presentation of conflicting evidence by other witnesses are best resolved by the trier of fact who has the opportunity to observe the witnesses firsthand and assess their credibility. - 12 - There was ample evidence to support appellant's conviction. Appellant's second assignment of error is overruled. IV. In his third assignment of error, appellant argues the trial court erred by denying his Crim.R. 29 motion for acquittal. Appellant maintains the evidence submitted at trial was insufficient to support his conviction. A motion for acquittal will be sustained if the evidence presented is insufficient as a matter of law to permit a conviction. Crim.R. 29(A). It will not be granted "if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. A trial court must construe the evidence most strongly in favor of the prosecution. State v. Fyffe (1990), 67 Ohio App.3d 608, 613. It already has been determined that the state presented sufficient evidence to support appellant's conviction. Appellant offers no argument different than that in his first assignment of error which has been overruled. Appellant's third assignment of error lacks merit. V. In his fourth assignment of error, appellant contends the trial court deprived appellant of his constitutional right to due process of law. Appellant argues an ex parte meeting between the - 13 - jury and the trial court denied appellant his right to be present at every stage of his trial. Appellant and his two co-defendants moved for a mistrial. The grant or denial of a motion for mistrial rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 182. This is because the trial court is in the best position to determine whether a mistrial is needed. State v. Glover (1988), 35 Ohio St.3d 18, 19. A mistrial should not be ordered in a criminal case merely because some error or irregu- larity has intervened, unless the substantial rights of the accused are adversely affected. State v. Nichols (1993), 85 Ohio App.3d 65, 69. "Mistrials need not be declared only when the ends of justice so require and a fair trial is no longer possible." State v. Franklin (1991), 62 Ohio St.3d 118, 127. During deliberations, the jury sent a note to the trial judge which stated: There are personal concerns, personal concerns relating to protection and safety. We need to speak to the judge privately; not in open court. (Tr. 1355). The trial court contacted the attorneys for the defendants and the state regarding the communication. All agreed to allow the judge to go back into the deliberation room and speak with the jury. After the meeting, the trial court informed the attorneys in chambers that a juror said one of the defendants was behind her in line at the cafeteria. They said hello to each other but had no further conversation. Which defendant was unknown. All - 14 - of the jurors informed the trial court they could follow their oath to decide the case solely on the evidence and the law presented at trial. The attorneys for the defendants based their motions for mistrial on the perception that the jury felt intimidated and threatened by the defendants. There was no argument with regard to the ex parte meeting itself as being a cause for a mistrial. Generally, an appellate court will not consider any error which counsel for a party complaining of the trial court's ruling or judgment could have called to the trial court's attention at the time but failed to do so. Any allegation of error is waived when a party fails to object at a time when such error could have been avoided or corrected by the trial court. State v. Thrower (1989), 62 Ohio App.3d 359. Further, the defense attorneys acquiesced to the trial court's meeting with the jury. A party who invites an error at trial cannot then complain of that error on appeal. State v. Chappell (1994), 97 Ohio App.3d 515, 537. It is must be determined whether the ex parte meeting rose to the level of plain error. Plain error is an error or defect which affects a defendant's substantial rights and may be noticed even though the error was not brought to the attention of the trial court. Crim.R. 52(B). Notice of plain error may be taken by an appellate court if the record reveals that the error resulted in a - 15 - manifest miscarriage of justice. State v. Adams (1980), 62 Ohio St.2d 151. Due process requires a defendant be present to the extent that a fair and just hearing would be thwarted by his absence. Snyder v. Massachusetts (1934), 291 U.S. 97. Not every ex parte conversation between a trial judge and a jury constitutes a deprivation of any constitutional right. A defendant does not have a constitutional right to be present at every interaction between the trial judge and a juror. Rushen v. Spain (1983), 464 U.S. 114, 125-126. See also United States v. Gagnon (1985), 470 U.S. 522. A criminal defendant has the right to be present at all stages of his trial. State v. Benge (1996), 75 Ohio St.3d 136. A criminal defendant cannot be excluded from testimonial proceedings where his knowledge might assist his attorney. State v. Woods (1982), 8 Ohio App.3d 56, 61. If a defendant was not present in a proceeding in which no evidence of guilt was taken, a defendant's absence may be harmless. See State v. Roe (1989), 41 Ohio St.3d 18. In the instant case, the trial judge had an ex parte meeting with the jury. Usually, a trial judge should not communicate with the jury in the defendant's absence. State v. Allen (1995), 73 Ohio St.3d 626. However, not all such ex parte communications necessarily are prejudicial error. State v. Hill (1995), 73 Ohio St.3d 433, 444. See also Bostic v. Connor (1988), 37 Ohio St.3d 144. To prevail on a claim of prejudice due to an ex parte communication between judge and jury, - 16 - the complaining party must first produce some evidence that a private contact, without full knowledge of the parties, occurred between the judge and jurors which involved substantive matters. State v. Jenkins (1984), 15 Ohio St.3d 164, paragraph thirteen of the syllabus. In the instant case, appellant's attorney was aware of the ex parte meeting before it took place and agreed to the meeting. The trial court fully informed defense counsel of what took place at the meeting. The jurors wished to discuss their concerns for their safety privately with the trial judge. The presence of the defendants only could have inhibited discussion of those concerns and not allowed the trial court to discover the full extent of the jurors' fears for their protection and safety. The trial judge gained the jurors' assurance they could fairly decide the case based upon the evidence and law presented at trial. It is presumed the jurors were true to their oaths of impartiality. State v. Wilson (1978), 57 Ohio App.2d 11. Appellant has not shown how he was prejudiced by his absence at the meeting or even how his presence would have aided his case. Appellant was not harmed by the ex parte meeting between the jury and the trial judge. Appellant's fourth assignment of error is overruled. - 17 - VI. In his fifth assignment of error, appellant asserts he was denied effective assistance of counsel. Appellant bases this assertion on his attorney's failure to object to the ex parte meeting between the jury and the trial judge. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 687. Deficient performance means that claimed errors were so serious that the defense attorney was not functioning as the "counsel" that the Sixth Amendment guarantees. Prejudice means that counsel's error compromised the reliability of the trial. State v. Cook (1992), 65 Ohio St.3d 516, 524. A defendant must show there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra, at 694. An objection to the ex parte meeting by appellant's attorney would have made no difference in the outcome of the trial as it already has been determined that any error by the trial court with regard to the meeting was harmless. The reliability of the trial was not compromised. Appellant has presented no evidence to rebut the presumption the jury decided the case based on the evidence admitted at trial and the law. As appellant was not prejudiced by the failure to object to the meeting between the jury and the trial - 18 - court, he received effective assistance of counsel. Appellant's fifth assignment of error is meritless. VII. In his sixth assignment of error, appellant contends the juvenile court erred by binding appellant over to be tried as an adult by the court of common pleas. Appellant asserts juvenile court transferred him to the adult court solely based upon the nature of the offense charged. Appellant argues that, with the exception of his school attendance, all the factors to be considered by the juvenile court under Juv.R. 30 were in appellant's favor. Therefore, appellant was amenable to a rehabilitative program in the juvenile court system. R.C. 2151.26 and Juv.R. 30 provide the procedural mechanism by which a juvenile offender may be bound over to the adult court and then tried as though he was an adult. R.C. 2151.26 provides in pertinent part: (A)(1) Except as provided in division (A)(2) of this section, after a complaint has been filed alleging that a child is a delinquent child for committing an act that would constitute a felony if committed by an adult, the court at a hearing may transfer the case for criminal prosecution to the appropriate court having jurisdiction of the offense, after making the following determinations: (a) The child was fifteen years of age or older at the time of the conduct charged; (b) There is probable cause to believe that the child committed the act alleged; (c) After an investigation, including a mental and physical examination of the child - 19 - made by a public or private agency or a person qualified to make the examination, and after consideration of all relevant information and factors, including any fact required to be considered by division (B)(2) of this section, that there are reasonable grounds to believe that: (i) He is not amenable to care or rehabilitation or further care or rehabilitation in any facility designed for the care, supervision, and rehabilitation of delinquent children; (ii) The safety of the community may require that he be placed under legal restraint, including, if necessary, for the period extending beyond his majority. Juv.R. 30 further provides in pertinent part: (A) Preliminary hearing. In any proceeding where the court may transfer a child fifteen or more years of age for prosecution as an adult, the court shall hold a preliminary hearing to determine if there is probable cause to believe that the child committed the act alleged and that such act would be a felony if committed by an adult. Such hearing may be upon motion of the court, the prosecuting attorney or the child. (B) Investigation. If the court finds probable cause, it shall continue the pro- ceedings for full investigation. Such investigation shall include a mental and physical examination of the child by the Ohio Youth Commission (footnote omitted), a public or private agency, or by a person qualified to make such examination. When the investigation is completed, a hearing shall be held to determine whether to transfer jurisdiction. Written notice of the time, place and nature of the hearing shall be given to the parties at least three days prior to the hearing. (C) Prerequisites to transfer. The proceedings may be transferred if the court finds there are reasonable grounds to believe: - 20 - (l) The child is not amenable to care or rehabilitation in any facility designed for the care, supervision and rehabilitation of delinquent children; and (2) The safety of the community may require that the child be placed under legal restraint for a period extending beyond the child's majority. (D) Retention of jurisdiction. If the court retains jurisdiction, it shall set the proceedings for hearing on the merits. (E) Determination of amenability to rehabilitation. In determining whether the child is amenable to the treatment or rehabilitative processes available to the juvenile court, the court shall consider: (1) The child's age and his mental and physical health; (2) The child's prior juvenile record; (3) Efforts previously made to treat or rehabilitate the child; (4) The child's family environment; and (5) School record. The purpose behind both R.C. 2151.16 and Juv.R. 30 is to assess the probability of rehabilitating the child within the juvenile court system. State v. Adams (1982), 69 Ohio St.2d 120. Juvenile court has considerable latitude in which to determine whether it should retain jurisdiction. State v. Carmichael (1973), 35 Ohio St.2d 1, paragraph one of the syllabus. The determination of what constitutes reasonable grounds for relinquishing jurisdic- tion is within the sound discretion of juvenile court after an investigation is made. Id. paragraph two of the syllabus. - 21 - The determination that a juvenile would not be amenable to rehabilitation must be made upon the totality of the evidence. State v. Campbell (1991), 74 Ohio App.3d 352. The consideration of the five factors set forth in Juv.R. 30(E) pertaining to the determination of amenability to rehabilitation need not all be resolved against the child in order to justify transfer to adult court. State v. Oviedo (1982), 5 Ohio App.3d 168. The juvenile court may consider the seriousness of the alleged offense in making its decision of whether the juvenile is not amenable to care or rehabilitation in the juvenile justice system. State v. Watson (1989), 47 Ohio St.3d 93, syllabus. The evidence adduced at the bind-over hearing held before the juvenile court was sufficient to establish probable cause that appellant committed an act which if committed by an adult would be a felonious act. Appellant was sixteen years and nine months old at the time of the offense. Appellant reportedly had a good relationship with his mother and siblings but no contact with his natural father. Appellant stopped attending school during the 1993-1994 school year when he was a ninth-grade student. Appellant had repeated eighth grade and experienced problems with truancy and tardiness. His grades were below average to failing. Appellant is borderline in his intellectual functioning. Appellant's mother was unaware appellant was no longer attending school. Juvenile court found appellant's age and mental and physical condition to be neutral in its determination. Appellant had no - 22 - prior juvenile record so there had been no prior efforts to rehabilitate him as a juvenile offender. The juvenile court found appellant's school record to be poor and that appellant was not accountable to his family. It weighed those two factors against amenability. The juvenile court found the specific facts relating to the offense for which probable cause was found to weigh strongly against amenability. Juvenile court relied mainly on this last factor in deciding to transfer appellant to the court of common pleas. The trial court also found the safety of the community required appellant to be held beyond the age of majority. T h e juvenile court found the first factor set forth in Juv.R. 30(E) to be neutral; the second and third to weigh in appellant's favor, and the fourth and fifth to weigh against appellant. It then considered the specific facts of the incident. Based on all the above, the juvenile court did not abuse its discretion in determining that appellant would be transferred to the court of common pleas for trial. Appellant's sixth assignment of error lacks merit. Judgment affirmed. - 23 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, J. and TIMOTHY E. McMONAGLE, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .