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In re A.S.

Court of Appeals of Ohio, First District, Hamilton

June 14, 2019


          Appeal From Hamilton County Juvenile Court TRIAL NO. 17-2344X

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Appellee State of Ohio,

          Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler, Assistant Public Defender, for Appellant A.S.


          WINKLER, JUDGE.

         {¶1} Appellant A.S. appeals the judgment of the juvenile court adjudicating him delinquent in connection with the robbery of a pizza-delivery driver. For the reasons that follow, we affirm.

         Background Facts and Procedure

         {¶2} A pizza-delivery driver was lured to a home in Price Hill where several young men attacked and robbed her. The victim could not identify any of the suspects. In the course of the police investigation, the police traced the phone number used to order the pizza to a juvenile, M.B. The police interviewed M.B., and during that interview, M.B. identified a juvenile named "Black Tino," and another juvenile, S.F., as also being involved in the incident. The police showed M.B. a photograph of A.S., and M.B. confirmed A.S. was "Black Tino." Police arrested A.S. in connection with the robbery. The matter proceeded to a trial before the magistrate.

         {¶3} At trial, the victim testified that she had driven her car to a house in Price Hill to deliver a pizza. She pulled up to the house and five black males were standing outside. One of the males stated that his mom would be out. When no one came out of the house, the victim called the customer's number, but the call went straight to voicemail. One of the males stated that his mom went to the store and would be right back. At this point, the victim told the group that she had other deliveries and would return. She put the pizza in the passenger side of her car and locked the doors. She then walked around the back of her car when she heard one of males yell, "Get her." One of the juveniles jumped over the hood of her car and then body slammed her to the ground and started punching her. Another juvenile tried to open the passenger-side car door. The juvenile who had body slammed her and another juvenile tried to grab items out of her pocket. The victim's wallet fell out, and one of the three grabbed it. The juveniles took off running, and the victim tried to pursue them, but could not catch them.

         {¶4} M.B. testified that he had been among the group that had ordered pizza, and that a "fistfight" had occurred with the delivery driver. M.B. testified that A.S. also had been a part of that group, and M.B. identified A.S. in court. M.B. initially stated that he had "not really" seen what A.S. had done during the course of the robbery because M.B. "wasn't paying attention." When questioned by the magistrate, M.B. said that he had seen A.S. punch the victim. On cross-examination, M.B. admitted that when investigators had first approached him about the robbery, he lied about an incident that had occurred a week after the robbery, in which M.B. had sustained a gunshot wound. M.B. told police that he had been shot in the course of a drive-by shooting by an unknown person, but M.B. later admitted to police that he had been holding a gun when it accidentally discharged. The state did not file a complaint against M.B. for false reporting or for the robbery.

         {¶5} In addition to M.B.'s testimony, the state presented testimony from two police officers in the criminalistics unit who perform fingerprint analysis. The police had obtained fingerprints from the pizza driver's vehicle. An officer testified that she used the prints that she had received from the driver's vehicle and put them into a database. The database matched the prints to "A.S."

         {¶6} The magistrate recommended that A.S. be adjudged delinquent. A.S. filed objections. A.S. objected to the magistrate's admission of the fingerprint evidence, arguing that the evidence had not been properly authenticated. A.S. argued that the state had failed to prove that the prints belonged to A.S., and not another person with the same name. A.S. also argued that the state had failed to prove beyond a reasonable doubt that A.S. had been one of the perpetrators.

         {¶7} The juvenile court sustained A.S.'s objection as to the fingerprint evidence. The trial court determined that with respect to A.S.'s adjudication, the magistrate had not "fully considered]" M.B.'s testimony, and "instead relied heavily on the fingerprint evidence." The juvenile court excluded the fingerprint evidence in conducting an independent review, and found that M.B. had identified A.S. as "Black Tino" to police, and that M.B. had seen A.S. punch the victim. The juvenile court determined M.B.'s testimony to be "consistent and credible." The juvenile court adjudged M.B. delinquent of robbery and imposed a suspended commitment to the Department of Youth Services.

         {¶8} A.S. has appealed.

         Manifest Weight of the Evidence

         {¶9} In his first assignment of error, A.S. contends that his adjudication was against the manifest weight of the evidence.

         {¶10} In reviewing whether a juvenile court's adjudication of delinquency is against the manifest weight of the evidence, this court applies the same standard of review applied to criminal defendants. See In re B.M., 1st Dist. Hamilton No. C-170103, 2018-Ohio-1733, ¶ 9. In reviewing a manifest-weight challenge, the court of appeals sits as a "thirteenth juror" and "review[s] the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [factfinder] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed * * *." State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

         {¶11} A.S. argues that the juvenile court erred in relying on M.B.'s testimony, because it was inconsistent and not credible. As to M.B.'s lack of credibility, A.S. argues that M.B. admittedly lied to police about the source of a gunshot wound, and the state did not press charges against M.B. in connection with the false report or the pizza-delivery robbery. As to the substance of M.B.'s testimony, A.S. argues that M.B. first stated that three people had been involved in the robbery, including himself, but later stated that four people had been involved, and none of M.B.'s testimony matched the victim's account that five people had been involved. M.B. also denied that he had been holding anything in his hands during the robbery, but the victim testified that the two boys who had been observing the event had been holding florescent lights. A.S. also points out that M.B. described the entire event as a "fistfight" between the boys and the delivery driver, which could not be considered credible. A.S. also argues that M.B. stated several different times that he had not been paying attention and did not remember what had occurred. A.S. also argues that M.B.'s initial identification of A.S. was "suspect" because M.B. did not identify A.S. by name, but by the nickname "Black Tino," at which point the police provided M.B. with a single photograph-that of A.S. Finally, A.S. argues that the juvenile court lost its way in adjudicating him delinquent because the state provided alternate theories by which A.S. had been involved in the crime: (1) that A.S. had punched the victim, (2) that A.S. had tried to get into the victim's vehicle, and (3) that A.S. had tried to steal items from the victim's vehicle after the victim pursued the suspects.

          {¶12} A juvenile court is free to believe some, all, or none of a witness's testimony. In re L.S., 6th Dist. Ottawa No. OT-17-021, 2018-Ohio-4758, ¶ 28. Moreover, "[i]f evidence is susceptible to more than one construction, reviewing courts must give it the interpretation that is consistent with the verdict and judgment." In re B.Z., 11th Dist. Geauga No. 2016-G-0089, 2017-Ohio-5638, ¶ 18, quoting Warren v. Simpson, 11th Dist. Trumbull No. 98-T-0183, 2000 WL 286594, *3 (Mar. 17, 2000). Therefore, the juvenile court was free to resolve the inconsistencies in M.B.'s testimony, consider M.B.'s credibility issues as brought out on cross-examination, and still find credible M.B.'s statements to police and at trial implicating A.S. in the robbery. During trial, the magistrate asked M.B. what he had seen A.S. do during the event. M.B. replied, "Just punch her."

         {¶13} After reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of the witnesses, we cannot say that the juvenile court clearly lost its way and created such a manifest miscarriage of justice that A.S.'s adjudication must be reversed. See Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. Thus, A.S.'s adjudication was not against the manifest weight of the evidence. We overrule the first assignment of error.

         Review of Magistrate's Credibility Determination

         {¶14} In his second assignment of error, A.S. argues that the juvenile court violated Juv.R. 40 by failing to give deference to the magistrate's credibility determinations. Juv.R. 40(D)(4) provides in relevant part:

(b) Action on Magistrate's Decision. Whether or not objections are timely filed, a court may adopt or reject a magistrate's decision in whole or in part, with or without modification. A court may hear a previously-referred matter, take additional evidence, or return a matter to a magistrate.
(c) If No Objections Are Filed. If no timely objections are filed, the court may adopt a magistrate's decision, unless it determines that there is an error of law or other defect evident on the face of the magistrate's decision.
(d)Action on Objections. If one or more objections to a magistrate's decision are timely filed, the court shall rule on those objections. In ruling on objections, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law. Before so ruling, the court may hear additional evidence but may refuse to do so unless the objecting party demonstrates that the party could not, with reasonable diligence, have produced that evidence for consideration by the magistrate.

         {¶15} A.S. argues that neither party objected to the magistrate's finding that M.B. was not credible, and therefore, under Juv.R. 40, the juvenile court was not permitted to disagree with the magistrate's credibility determination. A.S.'s argument that the juvenile court should have deferred to the magistrate's credibility determination assumes that the magistrate found M.B.'s testimony not credible, which is not supported by the magistrate's decision. The magistrate found that M.B.'s testimony was not consistent and "at times" not credible, but the magistrate specifically found M.B.'s testimony credible with respect to the other juvenile being tried with A.S. for the robbery. The magistrate determined that "even without M.B.'s testimony," A.S. should be found delinquent because of the state's fingerprint evidence. The magistrate's partial disregard of M.B.'s testimony as to A.S. in this case does not equate to a finding by the magistrate that M.B.'s testimony as to A.S. was not credible, but a recognition that A.S.'s fingerprints on the vehicle of the victim was in and of itself sufficient evidence of A.S.'s involvement in the crime.

         {¶16} Furthermore, A.S. specifically objected to the magistrate's decision on the basis that "the greater weight of the credible evidence does not support [his] adjudication." Therefore, the weight of the evidence and the credibility of the witnesses, which would include M.B.'s credibility, was squarely before the juvenile court for an independent review.

         {¶17} A.S. further argues that even if the juvenile court could review the magistrate's credibility determination under Juv.R. 40, it should have given deference to the magistrate's determination. A.S. cites to In re X.B., 10th Dist. Franklin Nos. 16AP-243 and 16AP-277, 2016-Ohio-5805. In In re X.B., father filed an action in domestic-relations court seeking to establish parentage and custody of his alleged child, and seeking custody of another child. Maternal grandmother had been given emergency custody of the children. The magistrate held a four-day trial where it was undisputed that father had met mother through a Craigslist ad for a massage, and that the first time they met, they engaged in sexual relations. At the time, mother was just 16 years old, and father was in his early 40s. Although father claimed that he did not know mother was a minor when they met, he admitted that he found out at some point that mother was underage, but he continued to have sex with her. Mother, as well as other witnesses, testified that father had a pattern of engaging in sex acts with minors and paying them with either money or drugs, and that father prostituted girls.

         {¶18} The magistrate in In re X.B. determined that grandmother's witnesses were credible, and recommended an award of custody to grandmother. On objections, the juvenile court granted father's objections and awarded custody to father. The trial court found that the testimony of grandmother's witnesses was not credible, and that insufficient evidence existed to find that father was an unsuitable parent. Grandmother appealed. The Tenth District reversed the trial court, holding that the trial court abused its discretion. The Tenth District determined that "[a]lthough a trial court must still independently assess the evidence and reach its own conclusions when reviewing a magistrate's recommendation, we believe the trial court's credibility assessment here was in error." Id. at ΒΆ 20. The appellate court determined that the magistrate "as the true trier of fact, was in the ...

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