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In re W.K.

Court of Appeals of Ohio, Eighth District

September 19, 2013

IN RE: W.K. A Minor Child

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL 12102379

ATTORNEYS FOR APPELLANT Timothy Young State Public Defender Charlyn Bohland Assistant State Public Defender.

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor Andrew T. Gatti Assistant County Prosecutor.

BEFORE: Kilbane, J., Jones, P.J., and Rocco, J.



(¶ 1} Appellant, W.K., a minor child, appeals his adjudication of delinquency in juvenile court for burglary and theft. For the reasons set forth below, we reverse and remand.

(¶2} In February 2012, a complaint was filed against W.K., then 16 years old, alleging that he was a delinquent child for committing burglary in violation of R.C. 2911.12(A)(2) (second degree felony) and theft in violation of R.C. 2913.02 (first degree misdemeanor). W.K. denied the allegations in the complaint, and the matter proceeded to an adjudicatory hearing in October 2012. The following evidence was adduced at the hearing.

(¶3} Mitchell Earley ("Earley") testified that on February 8, 2012, he lived in an apartment located on Richfield Road in Cleveland Heights. When he returned to his apartment from work that evening, he found his kitchen window "busted out." Earley testified that he looked through the window and noticed that his apartment was ransacked. He then called the police. Cleveland Heights police officer James Hood ("Hood") responded to the scene. Hood cleared the apartment and took an inventory of the missing items. Earley testified that his TV, DVD player, wallet, old cell phone, medications, jacket, watch, and some liquor bottles were taken from his home. Earley further testified that no one else lives with him in the apartment, and he and the landlord were the only people with keys to the apartment.

(¶ 4} Hood testified that after he processed the inside of Earley's apartment, he went outside and canvassed the area. Upon doing so, Hood made contact with John Lally ("Lally"), Earley's neighbor. Lally had installed exterior surveillance cameras on the adjacent apartment building, and both Hood and Lally watched the surveillance video. Hood testified that in video, he observed two tall, African American males standing outside in front of Earley's apartment. A few moments later, a third African American juvenile male opened the front door from the inside, and the two other males then entered the apartment. The three males were inside for an unspecified amount of time. The three males then exited, with the juvenile carrying a bag and the two taller males carrying a large object that appeared to be a TV covered in a blanket. Lally testified that he could not identify any of the individuals in the video. He further testified that a group of three or four males entered Earley's apartment and then left.

(¶ 5} Cleveland Heights Lieutenant Christopher Britton ("Britton") testified that in January and February 2012 there were "a rash of burglaries" taking place in Cleveland Heights. On February 10, 2012, which was two days after the burglary at Earley's, he staked-out an apartment building at Mayfield and Belmar Roads because it was burglarized the previous night. He observed three males walk around the building. These males were arrested for trespassing behind a private apartment building. Britton identified the individuals as 21-year-old Mark Lasiter, W.K., and W.K.'s co-delinquent, D.B. Britton interviewed D.B. in the presence of D.B.'s mother. As a result of the interview, a search was conducted of the duplex where W.K. resides. Two bottles of the same brands of liquor taken from Earley's home were found in the vacant downstairs portion of the duplex.

(¶6} The State then called D.B. to testify.[1] Prior to his testimony, the State advised the trial court that it "anticipates that [D.B.] will be a hostile witness." D.B. testified that he and W.K. hung out together and played on the same football team. He remembered being interviewed by the police after he was arrested on February 10, 2012. The State questioned D.B. about his interview with the police. At first, D.B. stated that his mother was not present at the interview. The State then played a portion of the recorded interview and asked D.B. if his mother was present. D.B. responded, "[y]eah. I might have got mixed up because I got picked up by the police two times."

(¶ 7} The State asked D.B. about what he told the police during the interview. D.B. stated that he did not remember. The State then asked D.B. that if it played the interview, would that "help [D.B.] remember?" D.B. then stated that he told the police that "I broke in some houses[.]" He further stated that he was with W.K. earlier in the day, but only he and another individual, K.W. ("K.W."), broke into the houses. The State asked which day D.B. was referring to, and D.B. responded that he did not remember and did not want to answer any more questions.

(¶ 8} The State then requested that the court deem D.B. as a hostile witness. The trial court granted the State's request. The State again asked D.B. about his interview with the police. The State asked if he admitted to the police that he broke into some houses. D.B. responded that he "probably said that but I was probably lying." D.B. testified that only he and K.W. went to Earley's apartment. He then stated that he "plead[s] the fifth" and "[t]ake me back to the looney bin." At that point, the State wanted to play a portion of D.B.'s recorded interview and then asked D.B. "if that's an accurate recitation of his interview[.]" The court allowed the State to play the interview over defense counsel's objection. D.B. admitted that in the interview, he told the police that he, W.K., and K.W. broke into Earley's house. D.B. rang the doorbell to check if anyone was home. He then looked out while someone else broke the back window and unlocked the front door. D.B. then stated that he lied to the police when he implicated W.K. He already had a pending arson charge and wanted to get less time in prison. He testified that he and K.W. took the items stolen from Earley's home to the vacant downstairs unit of W.K.'s home. D.B. further testified that W.K. knew that he brought these items into his home.

(ΒΆ 9} At the conclusion of the hearing, the trial court adjudicated W.K. delinquent of both the burglary and theft. The court dismissed the theft charge, and on the burglary charge, the court committed W.K. to the legal custody of the Ohio Department of Youth Services for an indefinite term, consisting of a minimum period of ...

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