Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division Case No. DL18107149
Timothy Young, Ohio State Public Defender, and Timothy
Hackett, Assistant State Public Defender, for appellant
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Nora Caitlin Bryan, Assistant Prosecuting
Attorney, for appellee.
JOURNAL ENTRY AND OPINION
MICHELLE J. SHEEHAN, JUDGE
1} The Cuyahoga County Court of Common Pleas
Juvenile Court found that appellant SA. III ("SA.")
committed acts that, if committed by an adult, would
constitute the offenses of robbery, in violation of R.C.
2911.02(A)(2) and 2911.02(A)(3), and possessing criminal
tools, in violation of R.C. 2923.24(A). SA. appeals the
court's denial of his motion to suppress and the
court's adjudication of delinquency. Upon a thorough
review of the record, we find (1) the juvenile court did not
error in failing to determine S.A.'s motion to suppress
before proceeding to a trial on the merits; (2) trial counsel
was not ineffective in agreeing to defer the suppression
hearing; (3) the victim's identification at the
cold-stand identification procedure was reliable; and (4) the
juvenile's court's finding of delinquency was
supported by the evidence. We therefore affirm the juvenile
court's denial of the motion to suppress and the
court's adjudication of delinquency.
Procedural History and Substantive Facts
2} On June 6, 2018, S.A. was charged in juvenile
court as follows: Count 1 - robbery in violation of R.C.
2911.02(A)(2); Count 2 -robbery in violation of R.C.
2911.02(A)(3); Count 3 - possessing criminal tools in
violation of R.C. 2923.24(A); and Count 4 - failure to
disclose personal information. At the time the complaint was
filed, S.A. was 15 years old.
3} The complaint stems from an incident that
occurred at approximately 10:00 p.m. on June 5, 2018,
involving the victim, Barbara Blue, who reported to the
Lakewood police department that she had been robbed in a
neighbor's driveway. After receiving Ms. Blue's 911
call, an officer was dispatched to the victim's location.
Shortly thereafter, officers in the vicinity indicated that
they had a suspect in custody matching the description given
by the victim. The officers, after driving Ms. Blue to the
suspect's location, conducted a "cold-stand" or
show-up identification, where Ms. Blue positively identified
S.A. as the individual who had robbed her.
4} On August 7, 2018, SA. filed a timely motion to
suppress the victim's out-of-court identification. In
support, S.A. argued that the "cold-stand"
procedure of identification utilized by the Lakewood police
officers was so impermissibly suggestive as to cause an
unreliable identification, and the identification must
therefore be suppressed. The state opposed the motion to
suppress. The record demonstrates that sometime before the
start of trial, the parties agreed to the court's
decision to defer its consideration of the motion to suppress
until testimony had been presented by the witnesses at trial.
Thereafter, on August 16, 2018, a bench trial proceeded.
5} At the conclusion of the proceedings, the trial
court heard from the parties on the alleged delinquent's
motion to suppress. Thereafter, the court made findings
concerning the cold-stand procedure and the victim's
identification and it denied the motion to suppress. Defense
counsel then moved for a Crim.R. 29 dismissal, which the
trial court denied as to Counts 1 through 3 but granted as to
Count 4. Following closing arguments, the trial court found
all of the elements of Counts 1 through 3 had been
established. The court further found that the evidence
established beyond a reasonable doubt that SA. was the
individual who committed the offenses. The court then
adjudicated SA. delinquent of Counts 1 through 3. Proceeding
directly to disposition, the court committed SA. to the
department of youth services for a minimum period of 12
months and a maximum period not to exceed S.A.'s
attainment of the age of 21 years.
6} On September 24, 2018, S.A. appealed the
court's order denying his motion to suppress as well as
the court's adjudication. On January 4, 2019, S.A. filed
a motion to supplement the appellate record with an
investigating officer's body camera video footage.
According to S.A's appellate counsel, the video was not
formally admitted into evidence at the hearing and
consequently did not become part of the appellate record.
Counsel stated, however, that the video was played during
cross-examination and was therefore considered by the trial
court. Counsel submits in his motion that this court should
likewise consider the contents of the officer's body
camera footage on appeal. The state did not oppose SA.'s
7} The record indicates that just prior to trial
counsel's recross-examination of the victim, counsel
requested to play the video, stating, "Your Honor,
I'd like at this point just to play a brief video clip.
It's gonna be just a couple of minutes. I want to just
play the whole thing. It's some body cam footage. And
I'll ask a question." At that point, counsel asked
the victim to clarify her identification. The state did not
object to the playing of the body camera video footage during
8} This court granted SA.'s motion to supplement
the record but deferred to the panel the issue whether the
video footage would be considered in resolving the appeal.
Because the video was played in open court during
recross-examination, without objection, we presume the trial
court considered the video prior to reaching its decision on
the motion to suppress and its adjudication. We therefore
consider the officer's body camera video footage on
Evidence at Trial
9} The state presented the testimony of the victim,
Barbara Blue, and Lakewood police officers, Ryan Summerville
and Frederick Mance. The state also submitted as evidence the
audiotaped 911 call placed by the victim.
10} Ms. Blue testified that she had been at a
nursing care facility caring for her elderly father on the
evening of June 5, 2018. She left the nursing facility at
approximately 9:30 p.m., arriving near her home in Lakewood
at approximately 10:00 p.m. She parked her car on Roycroft
Avenue, looked at the back end of the car and then the front
end, to evaluate her parking. She then noticed a bicycle on
the sidewalk, thinking perhaps it belonged to a neighbor.
Carrying her purse and two grocery bags, she proceeded to
walk to her home when "a young man passed on [her] left
very quickly and very close." She stated that the young
man startled her, she exclaimed "ooh," and then she
apologized to the individual. Ms. Blue stated that the young
man did not say anything to her and he proceeded north on
Roycroft Avenue. She observed him "moving on," and
she turned to walk up the driveway to proceed home.
11} Ms. Blue testified that she was halfway up the
driveway when she noticed someone standing to the left side
of her. She testified that she turned to face him and he
said, "I'm going to hurt you, give me your
purse." The individual was thin, a "very light
build, not really filled out with muscle," young, and
"about 5 foot 6, 5 foot 7," and wearing blue jeans
and a gray top. He had his hand under his shirt, pointing.
Assuming he was pointing with his hand, Ms. Blue decided that
she did not want to give the young man her purse and she told
him to go away. Rather than leaving, the individual grabbed
the victim's purse, turned, and ran down the driveway.
Ms. Blue ran after him, yelling for him to stop. When she
noticed the bicycle was gone, she realized that "it was
futile" to try and chase him. She then called 911 with
her cell phone. In her 911 call, Ms. Blue reported that the
suspect was a "black guy" on a bike, a teenager,
thin, "about as tall as [she is]," which she stated
was 5 foot 10". Ms. Blue also reported that the alleged
robber was traveling north on Larchmont Avenue.
12} When the police officer arrived, Ms. Blue
reported what had happened. She testified that the officer
indicated that he "think[s]" the police "have
the person who did this," and the officer asked her to
get into the back seat of his patrol car and he would take
her to identify the suspect. Upon arriving at the
suspect's location, the officers brought the suspect out
of a patrol car. Ms. Blue testified that while she could not
"perfectly pick out his face because there was a
reflection * * * from the streetlight," she identified
him by his "total physique," his clothing - blue
jeans and a gray top, his hair style, his
"slimness," "his skin color, being somewhat
dark," and "the way he carried himself." The
victim also identified the bicycle the suspect was riding.
Ms. Blue identified S.A. in the courtroom as the young man
who robbed her on the evening of June 5, 2018.
13} Officer Summerville testified that he was on
patrol on the evening of June 5, 2018, when he responded to a
call from dispatch at approximately 10:04 p.m. for a report
of a robbery on Roycroft Avenue, adjacent to Larchmont
Avenue. Officer Summerville testified that he proceeded to
the victim's location and took the victim's
statement. He received from the victim a description of the
suspect as a slender black male in a gray shirt and jeans
riding a bike. Approximately four to five minutes after
receiving the call from dispatch, Officer Summerville
received a call from another officer that a suspect had been
located one block away from the victim. At this point,
Officer Summerville drove the victim to that location to
identify the suspect, arriving at approximately 10:20 p.m.
The officer testified that he used his vehicle's
spotlight to light the area to conduct a cold-stand
identification. Officer Summerville testified that the victim
positively identified SA. as the individual who robbed her
that evening. The officer stated that the victim specifically
identified the suspect's blue jeans and gray sweatshirt
with the same height and build and noted that he was on a
14} Officer Mance testified that he was on patrol
the evening of June 5, 2018, when he heard on the police
radio at 10:04 p.m. that a woman had been robbed on Roycroft
Avenue and the suspect was a young black male wearing blue
jeans and a gray jacket and was riding a bicycle. The officer
arrived at the last known location of the suspect within
minutes of hearing the report. He then drove one street east
of the reported location and located a suspect matching the
description. Officer Mance estimated the distance between the
scene of the crime and the location of the suspect to be
approximately one-half mile. The officer testified that he
had the suspect in custody at approximately 10:08 p.m. He
stated that another officer brought the victim to the scene
where she made a positive identification of the suspect as
the individual who robbed her. Officer Mance identified S.A.
in the courtroom as the individual who was identified by the
victim at the scene and the individual he arrested.
15} When Officer Summerville arrived at the
victim's location, his body camera began recording. The
victim explained to the officer what happened, and the
officer told Ms. Blue that "I believe we have him in
custody already." He then asked the victim, "Would
you be able to positively identify him if you saw him?"
Ms. Blue responded, "Yes. I heard his voice, too."
Officer Summerville then advised the victim, "All I need
is if you can positively identify him." The officer then
placed the victim in his patrol car and explained to her,
"I'm going to drive you up to where they're at.
Okay, like I said, the windows are tinted, and it's dark,
so he won't be able to see you, okay? All's I need
from you is to positively identify him, and I will bring you
right back, okay?" Officer Summerville then drove Ms.
Blue to the suspect's location.
16} Upon arriving at the suspect's location, the
following exchange occurred:
Officer: He's going to be right over here, okay, over by
these officers. * * * He's going to have him step out
now, okay? Is that him?
Victim: That's the build. I can't see his face.
Officer: Hold on one second. [And the officer moved his
patrol car presumably closer to the suspect.] Is that better?
Victim: No. I cannot see his face to know. His clothes - [The
officer's radio interrupted with another officer
explaining that the suspect was being uncooperative.]
Officer: I'm sorry. What did you say, Ma'am?
Victim: The clothes. It's his clothes, but I just
can't see the face perfectly.
17} At this point, the officer asked the other
officers to "have [the suspect] step a little
closer." The victim explained that she still could not
see the features of his face, but "it's everything
else." The officers attempted once again to move the
suspect closer. The victim stated "I still don't
know if I could see him" and then repeated that it is
"exactly the clothes." The officer asked,
"That's exactly the clothes he was wearing?"
and the victim replied, "Mhm [and] exactly his
build." The victim then recalled that the young man who
robbed her had a bicycle, "a trick bike" on the
ground. Officer Summerville radioed the officers regarding
the bike, advising the officers that the victim "saw
that also," and those officers rolled a bike into the
victim's view. The victim identified the bike as the one
the alleged robber was riding. Officer Summerville then
advised the other officers that the victim had positively
identified the suspect.
Assignments of Error
I. The juvenile court erred as a matter of law and violated
S.A.'s right to a fair trial when it failed to determine
SA.'s suppression motion prior to trial.
II. SA. was denied his constitutional right to the effective
assistance of counsel when defense counsel unreasonably
acquiesced in the juvenile court's decision to defer the
suppression hearing and ruling until after the contested
evidence had already been introduced at trial.
III. The juvenile court erred as a matter of law and violated
SA.'s constitutional rights when it denied his motion to
suppress, even though the cold-stand procedure was unduly
suggestive and the resulting ...