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In Re: Robert M.

October 6, 2011

IN RE: ROBERT M. A MINOR CHILD


Civil Appeal from the Juvenile Division of Cuyahoga County Court of Common Pleas Case No. DL 10115998

The opinion of the court was delivered by: Patricia Ann Blackmon, J.:

Cite as In re Robert M.,

JOURNAL ENTRY AND OPINION

JUDGMENT:

AFFIRMED

BEFORE: Blackmon, J., Kilbane, A.J., and Celebrezze, J.

{¶1} Appellant Robert M.*fn1 appeals the juvenile court adjudicating him a delinquent minor and committing him to the Department of Youth Services. Robert M. assigns the following errors for our review:

"I. Robert M. was denied his right to due process and a fair trial when the State inexplicably lost the photo lineup that was crafted out of the investigating officer's cell phone pictures and used to bolster the victim's identification of Robert as the perpetrator of the crime. Fifth and Fourteenth Amendments to the United States Constitution, Section 16, Article I of the Ohio

Constitution."

"II. Robert M. was denied his right to due process and a fair trial when the trial court permitted testimony regarding an inherently suggestive and unreliable lineup that was used against Robert even though it was never provided to defense counsel, despite numerous discovery requests, and was never produced at trial."

"III. Robert M. was denied his right to the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution when counsel failed to file a motion to suppress or object to identification evidence, which would have been supported by the trial court."

"IV. Robert M.'s adjudication and commitment must be reversed and remanded for a new trial because his adjudication was against the manifest weight of the evidence. Fifth and Fourteenth Amendments to the United States Constitution, Article I, Section 16 of the Ohio Constitution."

{¶2} Having reviewed the record and pertinent law, we affirm Robert

M.'s adjudication as a delinquent minor. The apposite facts follow.

{¶3} On October 24, 2009, Delance Tyler was shot as he stood on his front porch. On August 16, 2010, the state filed a complaint alleging that Robert M. was delinquent of felonious assault with one and three-year firearm specifications attached; improper discharge of a firearm into a habitation; and carrying a concealed weapon. On September 15, 2010, Robert M. pleaded not guilty at his arraignment. Thereafter, several pretrials were conducted and on December 1, 2010, a bench trial commenced.

Bench Trial

{¶4} At trial, the victim, Tyler, age 41, testified that on October 24, 2009, while on his way home from work, he stopped at a corner store a block from his house. As he exited the store, he heard a lot of noise from across the street. Tyler assumed the noise was coming from kids playing, but moments later he heard footsteps to the side of him and thought it was one of the kids who knew him from the neighborhood.

{¶5} Tyler testified that when he turned to look, he saw a young man, later identified as Robert M., who asked him where he was from, and Tyler responded that he lived down the street. Tyler stated that Robert M. said "we about to work," a street parlance indicating that he wanted to fight, and then proceeded to take off his jacket.

{¶6} Tyler testified that he told Robert M. that he was not about to fight him because he was old enough to be his father, at which time, eight or nine other boys walked up, and Robert M. suggested that Tyler fight one of the older boys. Tyler refused and continued walking towards his house, Robert M. and the others followed, and someone shouted "Goonies," the name of a street gang that operates in the neighborhood.

{¶7} As Tyler reached his house and was about to open the door, he found it locked. He turned around and saw Robert M. at the curb. Tyler testified that Robert M. produced a gun, proceeded to fire four times, and three bullets hit him in the legs. Tyler attempted to take cover behind the brick wall on the porch, fully expecting that Robert M. would approach and kill him, but he fled along with the others down the street.

{ΒΆ8} Tyler was taken to the hospital and provided a description of his assailant to the police, indicating that he recognized Robert M. from the neighborhood. Tyler subsequently identified Robert M. ...


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