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In re D.W.

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 1, 2019

IN RE D.W. A Minor Child

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL-171116581

         JUDGMENT: AFFIRMED

          Mark A Stanton, Cuyahoga County Public Defender, and Britta M. Barthol, Assistant Public Defender, for appellant.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Megan Helton, Assistant Prosecuting Attorney, for appellee.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., P.J.

         {¶ 1} Defendant-appellant, D.W. ("appellant"), brings the instant appeal challenging his adjudications of assault and aggravated riot. Specifically, appellant argues that the trial court erred when it admitted out-of-court statements in violation of the Confrontation Clause; he was denied the effective assistance of counsel; and his adjudications were based on insufficient evidence and against the manifest weight of the evidence. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶ 2} Appellant brings the instant appeal from a juvenile case in which, after a jury trial, he was found guilty of assault and aggravated riot in Cuyahoga J.C. No. DL-171116581.

         {¶ 3} Appellant was charged in juvenile court by complaint with one count of felonious assault, in violation of R.C. 2903.11(A)(1), a second-degree felony, with a serious youthful offender specification, in violation of R.C. 2152.011, and one count of aggravated riot, in violation of R.C. 2917.02(A)(2). The state filed a discretionary bindover motion pursuant to R.C. 2152.10(B) seeking to transfer the case to adult court.

         {¶ 4} On April 6, 2018, a probable cause hearing was held on the state's bindover motion. The juvenile court found that probable cause existed to transfer the case to adult court. An amenability hearing was then held on July 3, 2018, to determine if appellant was amenable to the juvenile court system. The juvenile court found appellant amenable and the case was not transferred to adult court.

         {¶ 5} Subsequently, on July 18, 2018, the Cuyahoga County Grand Jury returned a two-count indictment that included identical charges as the juvenile complaint.

         {¶ 6} The matter remained in juvenile court and a jury trial[1] commenced on August 27, 2018. The following facts are deduced from the testimony presented at trial.

         {¶ 7} On October 7, 2017, John Lykes ("Lykes") was attacked and beaten by eight juveniles at 1:00 a.m. as he sat waiting for a bus at a bus stop on Cleveland's east side. Lykes had finished a shift at a local store and was awaiting his bus ride back to a homeless shelter where he was staying at this time. Lykes left the store and walked to the bus stop at East 79th Street and Euclid Avenue. A few minutes after Lykes arrived at the bus stop and sat down on a bench, one of the juveniles approached Lykes and knocked Lykes's hat off his head, presumably in a taunting manner. At that same moment, the juvenile began punching Lykes. The other juveniles then immediately began attacking Lykes, punching and kicking him.

         {¶ 8} Lykes sustained injuries from the attack and was transported to St. Vincent Charity Hospital that night. Lykes testified that he sustained a cut on the right side of his face that required stitches and resulted in a scar. Further, Lykes testified that he sustained bruised ribs from the attack.

         {¶ 9} The Greater Cleveland Regional Transit Authority Police Department ("RTA") arrived on the scene and assisted Lykes. Lykes reported to the RTA officers that some of the juveniles arrived on foot and some arrived on bikes. Lykes stated that the juveniles were all boys and appeared to be 14 and 15 years old. RTA conducted an investigation into the attack. Through this investigation, RTA officers obtained a surveillance video from the bus stop where the attack occurred.[2] Detective Alfredo Cuevas was assigned to the case. Detective Cuevas obtained still images from the video in an attempt to assist him in identifying the subjects. Detective Cuevas took these still images to local recreation centers and schools in an attempt to identify the juveniles. Detective Cuevas testified that

If we had a named suspect and we were able to pull up either that child's school identification, then we would show the school that and say, do you have this named student? If we didn't have that named student, then we would show up to the school with the pictures and say, do you have any children here that possibly could be this student?

(Tr. 281.)

         {¶ 10} Detective Cuevas's investigation led him to Thurgood Marshall Recreation Center in Cleveland. Detective Cuevas provided the still image of the video surveillance to staff members. Detective Cuevas learned from one of the rec center staff members that one juvenile depicted in the images, D.H., [3] regularly frequented the rec center. Detective Cuevas testified that in the course of his investigation, he utilized a Cleveland Metropolitan School District ("C.M.S.D.") database that enabled him to search for D.H.'s name to determine which school D.H. attends.

         {¶ 11} Detective Cuevas's investigation then led him to the name of another juvenile who was believed to be one of the attackers. Detective Cuevas testified that he spoke with that juvenile and it was discovered that this juvenile was not involved in the attack. As a result of his interview with this juvenile, Detective Cuevas did, however, learn the names of other juveniles who were involved in the attack. Detective Cuevas testified in particular that "now we had more names, and [the juvenile] had named quite a few other suspects, and we started to investigate both social media and looking in local schools to see if we could potentially locate any of the suspects that he had named." (Tr. 264.)

         {¶ 12} Through Detective Cuevas's investigation, he was able to obtain appellant's name and date of birth. Further, Detective Cuevas was able to utilize the C.M.S.D. database to determine that appellant attended Jamison Elementary School in Cleveland. Detective Cuevas went to appellant's school and spoke with Principal Sharon Cooper, and provided her with images of who at this point, Detective Cuevas believed to be appellant. After his conversation with Principal Cooper, Detective Cuevas was able to confirm appellant's identity. At Detective Cuevas's request, the school turned appellant over to his custody.

         {¶ 13} Detective Cuevas arrested appellant and transported him to the RTA police department. The school notified appellant's mother of the matter and thereafter, at the RTA police department, Detective Cuevas spoke with appellant with his mother present. Detective Cuevas testified that during the interview with appellant, appellant admitted that he participated in the attack and identified himself in the bus stop surveillance video. Detective Cuevas also testified that appellant was 14 years old at the time of the offense.

         {¶ 14} One of the other juveniles charged in the matter, CM., testified against appellant at trial. CM. was charged with one count of felonious assault and one count of aggravated riot. CM. struck a plea deal with the state wherein the state would dismiss the felonious assault count in exchange for C.M.'s testimony at appellant's trial.

         {¶ 15} At trial, CM. was initially uncooperative with the prosecution's questions on direct examination. Pertaining to the attack on Lykes, CM. stated that "we was riding around. Then that's when we seen the old man and we started to beat him up." (Tr. 240.) When asked by the prosecutor who he was riding around with, CM. stated that he "forgot their names." (Tr. 240.) After a brief recess, and after CM. conferred with his own counsel, CM. testified that he and seven other juveniles "jumped on an old man." (Tr. 246.) CM. further testified that appellant was one of the eight individuals who participated in the attack. CM. also identified appellant in court as one of the eight individuals.

         {¶ 16} At the close of the state's case-in-chief, appellant's counsel moved for a Crim.R. 29 judgment of acquittal. The juvenile court denied appellant's motion. On August 29, 2018, the jury returned its verdict and found appellant not guilty of the felonious assault count, but found appellant guilty of the lesser included offense of assault, a first-degree misdemeanor. The jury also returned a guilty verdict as to the aggravated riot count. Appellant was adjudicated delinquent and the matter was set for disposition.

         {¶ 17} On October 19, 2018, the juvenile court committed appellant to 90 days at the Cuyahoga County Juvenile Detention Center on Count 1; and six months at the Ohio Department of Youth Services on Count 2, which was suspended. Appellant was additionally placed on community control sanctions for one year.

         {¶ 18} On November 16, 2018, appellant filed a notice of appeal. Appellant assigns five errors for our review.

I. The trial court erred when it improperly admitted out-of-court statements at trial in violation of the rules of evidence and appellant's state and federal right to confrontation.
II. Plain error occurred with the admission of evidence in violation of the Ohio Rules of Evidence and appellant's right to state and federal confrontation.
III. Appellant 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.
IV. The evidence was insufficient as a matter of law to support a finding beyon[d] a reasonable doubt that appellant was guilty of assault and aggravated riot.
V. Appellant's convictions were against the manifest weight of the evidence.

         II. Law and Analysis

         A. Out-of-Court Statements

         {¶ 19} In his first assignment of error, appellant argues that the trial court erred when it admitted out-of-court statements at trial. More specifically, appellant argues that these out-of-court statements were inadmissible hearsay and admitted in violation of the Sixth Amendment's Confrontation Clause.

         {¶ 20} Appellant argues that Detective Cuevas was not permitted to testify to other individuals' statements regarding the identification of appellant. Appellant argues that the trial court permitted Detective Cuevas to testify to statements made to him by D.H., Cooper, and other individuals.

         1. Hearsay

         {¶ 21} Appellant argues that these out-of-court statements were inadmissible hearsay. A trial court has broad discretion regarding the admission of evidence, including whether such evidence does in fact constitute hearsay and whether it is admissible hearsay. Solon v. Woods, 8th Dist. Cuyahoga No. 100916, 2014-Ohio-5425, ¶ 10. This court will not disturb a trial court's decision regarding the admissibility of hearsay evidence absent an abuse of discretion. State v. Maurer, 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984). "Absent an abuse of discretion resulting in material prejudice to the defendant, a reviewing court should be reluctant to interfere with a trial court's decision in this regard." State v. Shropshire, 2017-Ohio-8308, 99 N.E.3d 980, ¶ 19 (8th Dist.), citing State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987).

         {¶ 22} Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). In this regard, "[i]f either element is missing - (1) a statement or (2) offered for its truth - the testimony is not hearsay." State v. Wingfield, 8th Dist. Cuyahoga No. 107196, 2019-Ohio-1644, ¶ 30, citing State v. Holt, 9th Dist. Lorain No. 97CA006985, 1999 Ohio App. LEXIS 4149, 8 (Sept. 8, 1996), citing Maurer at 262.

         {¶ 23} Appellant argues that Detective Cuevas testified to other individuals' statements that implicated appellant in the attack. To this end, appellant argues that these individuals did not testify at trial, and the statements were offered for the truth of the matter asserted, and thus, the testimony was inadmissible hearsay. The testimony with which appellant takes issue is as follows:

[PROSECUTOR]: Okay. So Detective, who was the first person you identified?
[DETECTIVE CUEVAS]: The first suspect we identified was [D.H.], also known ...

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