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In re T.H.

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 14, 2018

IN RE: T.H. Minor Child

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL 16107976

          ATTORNEYS FOR APPELLANT Mark A. Stanton Cuyahoga County Public Defender

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Theodore Parran Assistant County Prosecutor

          Also Listed: K.H. N.J.

          BEFORE: Stewart, J., McCormack, P.J., and E.T. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          MELODY J. STEWART, JUDGE

         {¶1} The juvenile court found that appellant T.H. committed acts that, if committed by an adult, would constitute the crime of aggravated robbery. In this appeal, T.H. complains that the adjudication of delinquency is against the manifest weight of the evidence, that trial counsel was ineffective for failing to seek the suppression of a photo array used to identify him, and that he was denied his right to confront the police officer who administered the photo array to the victim.

         I. Weight of the Evidence

         {¶2} T.H. complains that the victim's testimony identifying him as the perpetrator of an automobile theft by force was unbelievable because it was not based on a specific description, but on a cold-stand identification. He claims this rendered the victim's identification unreliable.

         {¶3} The manifest weight of the evidence standard requires the reviewing court to examine "the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Otten, 33 Ohio App.3d 339, 340, 515 N.E.2d 1009 (9th Dist.1986). This is a difficult burden for an appellant to overcome because the trier of fact has the sole responsibility to resolve factual issues. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Because the standard of review uses the word "manifest, " it means that we can only reverse the trier of fact if its decision is very plainly or obviously contrary to the evidence.

          {¶4} The victim testified that he drove to his fiancée's house to give her some money. Because he was not planning to stay, he kept his car running on the street despite his fiancée's warning that three or four males were walking down the street. When one of those males entered the car, the victim ran toward the open driver's side window to stop him. The driver pulled away with the victim hanging on - he had caught his arm in the window. As the victim tried to stop the thief, the victim said the thief "reached and tried to pull out a weapon." The victim then freed his arm while the thief drove away. The victim and the fiancée used her car to search the neighborhood for the stolen vehicle, but to no avail. The police later located the victim's car with three males inside who exited the car and ran off before they could be stopped. The victim's car was recovered, but was a total loss.

         {¶5} A few days later, the victim saw the person who took his car. He testified that "[m]e and him locked eyes, like I will never forget his eyes. I locked eyes with him again for the second time." He called the police, but the police did not respond until he told them that "if you do not do nothing [sic], then I'm gonna handle matters in my own hands, and the outcome that, you know - the outcome that you all don't want may happen." The police eventually took a person into custody and asked the victim to walk by a police cruiser to identify that person. The victim identified T.H. About one month later, the police asked the victim if he would be able to identify T.H. from a photo array. Saying "yeah, I'll never forget his face because I was eye to eye, " the victim identified T.H. with "100 percent" certainty.

          {¶6} T.H. argues that the state failed to offer any evidence of how the victim described his assailant, with no mention of age, skin color, glasses, or hair. A police officer who responded to the initial report of the stolen car testified that the victim "didn't give me any real actual description due to the fact that he was frantic and everything due to the fact that his vehicle was just taken."

         {¶7} The victim said that his mental state immediately after the car had been stolen did not allow him to give the police a description of T.H. However, a police officer did not find that unusual, testifying that "anyone would be frantic or a little bit scared" after enduring what the victim endured. Viewing the evidence in this light, this is not a case where the victim could not describe his assailant because he did not see who committed the offense. The court made this precise finding when denying T.H.'s Juv.R. 29(F)(1) motion to dismiss the complaint, stating that "[t]he only thing" that prevented the victim from identifying T.H. was that the victim "was just so highly agitated and upset that he couldn't describe him at that time and that it took them time to just calm him down because of the frustration that he was dealing with at that particular time." The court found the victim "very credible" because he provided specific statements about the theft, including his ...


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