Court of Appeals of Ohio, Eighth District, Cuyahoga
IN RE D.W. A Minor Child
Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division Case No. DL-171116581
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,
JOURNAL ENTRY AND OPINION
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
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.
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 commenced on August 27, 2018. The
following facts are deduced from the testimony presented at
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
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. 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?
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.,  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.
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
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
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
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
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
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
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.
Law and Analysis
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
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
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
[DETECTIVE CUEVAS]: The first suspect we identified was
[D.H.], also known ...