In re D.C.

149 N.E.3d 989

2019 Ohio 4860

IN RE: D.C.

NO. C-180354

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: November 27, 2019

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

Stagnaro Hannigan Koop, Co., LPA, and Michaela M. Stagnaro, for Appellant D.C.

OPINION .

Crouse, Judge.

{¶1} Appellant D.C. was 13 years old at the time he shot another teenager in the stomach, causing serious injuries that required a prolonged hospital stay. D.C. was adjudicated delinquent for committing an act that, had he been an adult, would have constituted felonious assault with an accompanying firearm specification under R.C. 2903.11 and 2941.145. He has appealed, raising three assignments of error: (1) the juvenile court erred by overruling his motion to suppress the eyewitness identification; (2) his adjudication was not supported by sufficient evidence and was against the manifest weight of the evidence; and (3) the juvenile court erred in its disposition of D.C. For the following reasons, the assignments of error are overruled, and the judgment of the juvenile court is affirmed.

Factual Background

{¶2} Two brothers, B.B. and H.B., were walking down the street when they came across a group of teenagers, including D.C. Words were exchanged, and then D.C. shot B.B. in the stomach. B.B. and H.B. both testified and identified D.C. as the shooter.

{¶3} D.C.'s defense was that he was present for the confrontation, but was not the shooter. His only witness was A.S. A.S. testified that he and D.C. were standing with the group during the confrontation with B.B. and H.B., but that he and D.C. were not participating, and were looking at A.S.'s phone when they heard the gunshot. A.S. testified that D.C. was not the shooter.

{¶4} However, A.S.'s testimony conflicted with statements D.C. made to Specialist Longworth shortly after the shooting. Longworth testified that D.C. told him that during the argument, he witnessed B.B. go into a nearby house and come back out with a gun wrapped in a blanket. At that point, D.C. ran, and only heard the gunshot as he was running away.

{¶5} The magistrate adjudicated D.C. delinquent and the juvenile court adopted the magistrate's decision as its own in its judgment entry. For the sake of clarity, we discuss D.C.'s assignments of error out of order. In his second assignment of error, D.C. claims that his adjudication was not supported by sufficient evidence and was against the manifest weight of the evidence.

Sufficiency of the Evidence

{¶6} The standard of review when determining whether a juvenile court's adjudication of delinquency is supported by sufficient evidence is the same as the standard used in an adult criminal case. See In re M.M. , 1st Dist. Hamilton Nos. C-140628, C-140629, C-140630, and C-140631, 2015-Ohio-3485, 2015 WL 5084233, ¶ 22, citing State v. Jenks , 61 Ohio St.3d 259, 574 N.E. 2d 492 (1991), paragraph two of the syllabus. We must determine "whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Jenks at paragraph two of the syllabus.

{¶7} To convict D.C. of felonious assault, the state was required to prove that D.C. knowingly caused or attempted to cause serious physical harm to B.B., or caused or attempted to cause physical harm to B.B. by means of a deadly weapon or dangerous ordnance. See R.C. 2903.11(A). To convict D.C. of the firearm specification, the state was required to prove that D.C. had a firearm on or about his person or under his control while committing the felonious assault, and displayed, brandished, or indicated that he possessed the firearm, or used it to facilitate the offense. See R.C. 2941.145(A).

{¶8} B.B. testified that he and H.B. were walking down the street listening to music when D.C. and a group of at least five other people walked past and said something to them. He did not hear what was said, but the two groups stopped roughly 15 feet apart. As B.B. turned around to face D.C. and his group, he saw D.C. pull a gun out of his pants, point it at B.B., and pull the trigger. B.B. testified that he looked at D.C.'s face for five to ten seconds as D.C. was pointing the gun at him. After B.B. was shot, he fell to the ground. H.B. picked him up and carried him to a friend's house, where 911 was called. B.B. identified D.C. as the shooter both pretrial and in court.

{¶9} H.B. testified that as he and B.B. walked past D.C. and his group, somebody said, "Stop F'n playin', I got the gun on me." The two groups started arguing, exchanging words back and forth. Multiple teens in D.C.'s group passed the gun back and forth. H.B. testified that as he and B.B. started walking away, a girl in the group said, "Just shoot him." D.C. got the gun, cocked it back, and shot once, hitting B.B. H.B. identified D.C. as the shooter both pretrial and in court.

{¶10} When viewed in the light most favorable to the prosecution, the evidence presented was sufficient for the juvenile court to find all of the essential elements of felonious assault and the firearm specification proven beyond a reasonable doubt.

Manifest Weight of the Evidence

{¶11} The standard of review when determining whether a juvenile court's adjudication of delinquency was against the manifest weight of the evidence is the same as that in an adult criminal case. See In re Walker , 1st Dist. Hamilton No. C-040568, 2005-Ohio-2452, 2005 WL 1185613, ¶ 11, citing State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). This court must

review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the 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 adjudication must be reversed and a new trial ordered.

Walker at ¶ 11.

{¶12} A.S. was steadfast in his assertion that D.C. did not shoot B.B., but his testimony was confusing and contradictory, and did not match statements D.C. made to Longworth shortly after the shooting.

{¶13} There were some discrepancies between B.B.'s and H.B.'s testimony, but nothing so substantial as to indicate that the magistrate clearly lost his way in resolving conflicts in the evidence presented and weighing the credibility of the witnesses. D.C.'s adjudication was not against the manifest weight of the evidence. His second assignment of error is overruled.

Motion to Suppress

{¶14} In his first assignment of error, D.C. argues that the juvenile court erred in overruling his motion to suppress B.B.'s pretrial identification of D.C.

{¶15} We review a trial court's ruling on a motion to suppress under a mixed question of law and fact. State v. Williams , 2011-Ohio-6032, 968 N.E.2d 1038, ¶ 5 (1st Dist.). We accept the court's findings of fact if they are supported by competent, credible evidence, but we review the application of the law to those facts de novo. Id.

{¶16} "Convictions based on eyewitness identification at trial, following a pre-trial identification by photograph, will be set aside only if the photographic identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." State v. Perryman , 49 Ohio St.2d 14, 358 N.E.2d 1040 (1976), paragraph two of the syllabus, vacated on other grounds , 438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1156 (1978).

{¶17} When reviewing an eyewitness identification, courts employ a two-part test. State v. Neal , 1st Dist. Hamilton No. C-140667, 2015-Ohio-4705, 2015 WL 7082149, ¶ 28, citing Perry v. New Hampshire , 565 U.S. 228, 132 S.Ct. 716, 724, 181 L.Ed.2d 694 (2012). First, the court must determine whether the identification procedure employed by law enforcement was "both suggestive and unnecessary." Id. This step does not concern the reliability of the identification; rather it "turns on the presence of state action and aims to deter the police from rigging the identification process." Id. at ¶ 30. Only if the court finds the procedure to be unduly suggestive and unnecessary does it move to the second step. Id. at ¶ 29.

{¶18} In the second step, the court inquires whether,

under the totality of the circumstances, the identification was reliable even though the confrontation procedure was suggestive. Id. The court should focus on a number of factors in evaluating the witness's ability to make an accurate identification, including (1) the witness's opportunity to view the defendant during the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the suspect, (4) the witness's certainty, and (5) the time elapsed between the crime and the identification.

Id. at ¶ 28.

{¶19} In Neal , the witness failed to identify Neal in a photo lineup two days after the shooting. Id. at ¶ 38. A month later, after Neal had been arrested, the witness went to police and identified Neal as the shooter. She explained that she had been in an intimate relationship with Neal, whom she knew as "Chucky." Id. The police then showed her a single photograph of Neal to confirm that they were talking about the same person—that the person she knew as Chucky was indeed Neal. Id. This court stated that "while the use of a one-photo procedure was arguably suggestive," the identification was reliable under the totality of the circumstances. Id. at ¶ 41. When police showed the witness Neal's photo, she had already told them that she had known Neal for several months and had been in an intimate relationship with him. Id. The officer showed her Neal's photo not to identify an unknown person, but to verify that the person she knew as Chucky was in fact Neal. Id.

{¶20} In State v. Huff , 145 Ohio App.3d 555, 558-559, 763 N.E.2d 695 (1st Dist.2001), a...