[Cite as State v. Hughes, 2019-Ohio-4590.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                Plaintiff-Appellee,                :
                                                                   No. 18AP-837
v.                                                 :            (C.P.C. No. 17CR-4801)

Daiquan T. Hughes,                                 :           (REGULAR CALENDAR)

                Defendant-Appellant.               :


                                             D E C I S I O N

                                   Rendered on November 7, 2019


                On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                Prichard, for appellee.

                On brief: Timothy Young, Ohio Public Defender, and Victoria
                Bader, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

NELSON, J.
        {¶ 1} Daiquan T. Hughes pleaded guilty to aggravated murder in having shot Brian
Woodson to death on Halloween night 2016. "I hope you can forgive me," he told the
sentencing judge. "I hope God can forgive me." September 25, 2018 Change of Plea and
Sentencing Transcript at 15. Assisted by counsel and with a gun specification no longer at
issue, Mr. Hughes joined with the state in recommending a prison term of 25 years to life,
which sentence the court then imposed. October 1, 2018 Judgment Entry.
        {¶ 2} Mr. Hughes was 17 years old when he committed the murder. See, e.g., Plea
Tr. at 9. On appeal, he submits only one assignment of error, arguing that the juvenile court
lacked probable cause on which to bind him over to the common pleas court's general
division. In violation of the Ohio and federal constitutions, he recites, "[t]he juvenile court
violated [his] right to due process when it found probable cause to believe that he
No. 18AP-837                                                                                2

committed the alleged offense, in the absence of sufficient, credible identification
evidence." Appellant's Brief at 7. Because we accord appropriate deference to the juvenile
court's finding that the eyewitness was "very credible" in attesting that Mr. Hughes twice
had returned to an already injured Mr. Woodson to shoot him multiple times and that Mr.
Hughes then had returned to the victim yet once more to shoot him in the head, and because
we find as a matter of law that the juvenile court did not err in concluding that probable
cause existed for each element of the offense of murder as then charged, we will overrule
the assignment of error and affirm the conviction.
       {¶ 3} We dispense at the outset with the state's position that by pleading guilty, Mr.
Hughes has waived his probable-cause-based argument that he was denied due process by
the bindover proceeding. See Appellee's Brief at 4-8. This court recently has reiterated the
understanding, shared by a variety of appellate districts across Ohio, that "because a proper
bindover procedure, which includes the determination of the existence of probable cause,
is necessary to transfer jurisdiction, it cannot be waived," and (to much the same effect)
that "because a finding of probable cause based on [assertedly] insufficient evidence
[would] contravene[] the procedures established under R.C. 2152.12 for the transfer of
jurisdiction to the general division of a common pleas court, we review whether the
[juvenile] court's finding of probable cause was based on sufficient evidence." State v. E.T.,
10th Dist. No. 17AP-828, 2019-Ohio-1204, ¶ 44-45 (citations omitted). That remains our
view of the role the law assigns to us here.
       {¶ 4} In conducting that review, "we defer to the trial court's determinations
regarding witness credibility, but we review de novo the legal conclusion whether the state
presented sufficient evidence to demonstrate probable cause to believe that the juvenile
committed the acts charged." In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, ¶ 51. "For
purposes of finding probable cause * * *, the state need only provide credible evidence that
raises more than a mere suspicion of guilt, but need not provide evidence proving guilt
beyond a reasonable doubt." State v. E.T., 2019-Ohio-1204, ¶ 66, citing In re A.J.S. at ¶ 42.
We appreciate, therefore, that the juvenile court was charged with assessing witness
credibility and determining whether the state presented credible evidence for each element
of the offense, but that it was " 'not permitted to exceed the limited scope of the bindover
No. 18AP-837                                                                                 3

hearing or to assume the role of the fact-finder at trial.' " State v. E.T. at ¶ 32 (citations
omitted).
        {¶ 5} The only aspect of probable cause that Mr. Hughes contests in this appeal
relates to the eyewitness's identification of him as the shooter: reliance on "unreliable
identification testimony violates due process," he argues, and here the witness's "in-court
identification [was under conditions that were] inherently suggestive" and did not arise
from circumstances that would tend to support its reliability. Appellant's Brief at 8, 9, 10-
15. He does not otherwise challenge as deficient evidence for any element of the offense.
Id.
        {¶ 6} Although Mr. Hughes through counsel says that the eyewitness made "his
first identification of Daiquan Hughes as a suspect * * * at Daiquan's probable cause
hearing," Appellant's Brief at 2-3, and that his "first-time" identification came "[m]ore than
six months" after the event, id. at 15, that is not what the transcript of the bindover hearing
reflects. Eyewitness T.B., a 26-year-old employed high school graduate, initially told police
that he had not seen what happened ("[b]ecause I was scared"), but "four or five weeks
later" he "was ready to * * * talk" and gave his account to police. May 17, 2017 Transcript
of Proceedings at 34, 37, 39 (adding that he was shown photo arrays then). At that time,
according to his testimony, "I talked to * * * the detective. I told them everything because I
seen it all." Id. at 91 .
        {¶ 7} Thus, by his account, T.B.'s courtroom identification of Mr. Hughes (as
wearing a "[j]ail uniform," id. at 15) was not the first time he had identified Mr. Hughes to
authorities as the shooter. Despite some initial confusion over which actor he was talking
about, see id. (at first referring to Mr. Hughes by the nickname of another, before averring
that he knows Mr. Hughes as "Dai Dai"), the in-court identification suggests no taint or
undue suggestiveness with regard to someone T.B. had known "[n]ot too long," but who
had been to his apartment and with whom he "used to play [Xbox One] and stuff like that,
you know, like kick it." Id. at 16-17.
        {¶ 8} We previously have cited the United States Supreme Court's decision in Perry
v. New Hampshire, 565 U.S. 228 (2012), for the point that " 'due process concerns arise
only when law enforcement officers use an identification procedure that is both suggestive
and unnecessary,' " State v. E.T., 2019-Ohio-1204, ¶ 48, quoting Perry at 238-39, citing
No. 18AP-837                                                                                4

Manson v. Brathwaite, 432 U.S. 98, 107 (1977). We have no particular reason to believe
that this case involves impermissibly suggestive identification procedures. We therefore
see no reason to reach the second part of the "two-step analysis" Mr. Hughes urges in saying
that we "must determine whether 'under the totality of the circumstances, the identification
was nonetheless reliable and therefore admissible.' " Appellant's Brief at 8, citing State v.
Johnson, 163 Ohio App.3d 132 (10th Dist.2005), as citing United States v. Hill, 967 F.2d
226, 230 (6th Cir.1992). Hill makes clear that the "two-step analysis" Mr. Hughes invokes
reaches the second step only "if the defendant proves that the identification procedures
were impermissibly suggestive," a predicate that we do not think applies here where the
eyewitness testified that he knew and recognized the shooter and that he had relayed
"everything" to police. Compare, e.g., State v. Albert, 10th Dist. No. 06AP-439, 2006-
Ohio-6902, ¶ 45 ("[i]If the defendant does not satisfy his burden to prove that the
procedures were suggestive, then the court need not address the likelihood of irreparable
misidentification") (citations omitted); Perry, 565 U.S. at 223 ("[w]hen no improper law
enforcement activity is involved * * * it suffices to test reliability through the rights and
opportunities generally designed for that purpose * * *").
       {¶ 9} In any event, even apart from our conclusion that Mr. Hughes has not shown
the identification process itself to have been tainted, our review of the bindover transcript
—which does show sufficient evidence to demonstrate probable cause—reveals no
likelihood of misidentification under the totality of the circumstances. Although we do not
believe it necessary under state or federal precedents for us to engage in the "step two"
reliability review that Mr. Hughes urges, we address his points by way of outlining the direct
eyewitness testimony that established probable cause for the juvenile court.
       {¶ 10} "In determining whether an identification was unreliable under the totality
of the circumstances, a court must consider (1) the opportunity of the witness to view the
criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of
the witness's prior description of the criminal, (4) the level of certainty demonstrated by
the witness at the confrontation, and (5) the length of time between the crime and the
confrontation." State v. E.T., 2019-Ohio-1204, ¶ 48, citing State v. Broom, 40 Ohio St.3d
277, 284 (1988); Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
No. 18AP-837                                                                                      5

       {¶ 11} Eyewitness T.B. told the court that he had known the 42-year-old victim,
Brian Woodson, for a few months and had lived across the way from him in the same
complex. May 17, 2017 Tr. at 13. He had known Mr. Hughes ("Dai Dai") for "[l]ike a couple
months" and only in the company of Mr. Hughes's eventual codefendant Devon, who had
on occasion joined Mr. Hughes in T.B.'s apartment to play video games and "kick it." Id. at
73, 16-17; see also id. at 72 (Q: "you've had him in your place and everything?" A: "Yes").
       {¶ 12} T.B. was home with some guests on Halloween evening 2016 when he heard
a shot from outside his kitchen window. Id. at 26. Looking out, he saw "Dai Dai and Devon
chasing Brian." Id. at 46. He then heard Brian Woodson screaming for help, and moved
to "peek through the blinds" of his living room window. Id. at 27-28. "It wasn't close to
gettin[g] dark yet," he testified; although "it's getting there * * * * it was still light outside."
Id. at 48. He saw Mr. Woodson (who he said had run up some steps and fallen to the
ground) being beaten by "Devon and Dai Dai." Id. at 28-29. "Dai Dai hit Brian with [a]
bottle in his head," while Devon "was kicking him" and trying to go through his pockets. Id.
at 29. Then Devon and Mr. Hughes "took off down the steps." The victim was left calling
for help and saying " 'They shot me.' " Id. at 30. T.B. testified that he did not leave his
apartment because Mr. Hughes had a gun, id., but he called the police, id. at 75.
       {¶ 13} Mr. Hughes and Devon quickly returned, T.B. testified, id. at 30-31: "[t]hat's
when they was trying to really kill him; when they came back," id. at 77. Indeed, T.B.'s
account seems to have been that Mr. Hughes "came back three times." Id. at 77 (also
affirming that "they came back three times to shoot him"). The first time, the aggressors
emptied "the whole round; like six" shots before "[t]hey took off running." Id. at 31.
Seconds later, after T.B. had opened his door to go out to help, his friends told him they saw
the pair coming back again. T.B. "went back to the window" and saw that "Dai Dai's still
got the gun * * *. He was shooting [Mr. Woodson] on his body." Id. at 31-32. The two then
"ran off again," but "Brian was still screaming, and he was holding on." Mr. Hughes "[c]ame
back the third time, stood over Brian, * * * * looked at Brian in his face and he shot him in
his head. The whole round, six." Id. at 33.
       {¶ 14} The coroner's report, which details at least 14 bullet wounds, including seven
to Mr. Woodson's head and neck area, notes the cause of death as "[g]unshot wounds to the
head and trunk." State's Bindover Ex. 1.
No. 18AP-837                                                                                 6

         {¶ 15} We find no reason to conclude that the juvenile court judge abused her
authority in assessing T.B. (the only bindover witness) to be "a very strong witness, a very
credible witness." May 17, 2017 Tr. at 104. Having seen his testimony first-hand, including
the testimony he gave on cross-examination, the juvenile court judge was " 'in the best
position to [gauge] [his] credibility * * * by assessing [his] demeanor * * * and the manner
in which [he] testified, [his] connection or relationship with the parties, and [his] interest,
if any, in the outcome.' " State v. E.T., 2019-Ohio-1204, ¶ 68, quoting State v. Powell, 10th
Dist. No. 17AP-808, 2018-Ohio-3944, ¶ 15.
         {¶ 16} We find as a matter of law that coupled with the bindover exhibits admitted
by agreement, T.B.'s testimony as to each element of the offense "presented sufficient
evidence to demonstrate probable cause to believe that the juvenile committed the acts
charged." Compare, e.g., In re A.J.S., 2008-Ohio-5307, ¶ 51. The killer returned to the
scene and returned again, in T.B.'s account, to finish off Brian Woodson with multiple
gunshots to the head and body, and Mr. Hughes does not contest the elements of purpose
or causation. He challenges only T.B.'s identification of him as the shooter.
         {¶ 17} But T.B. was unshaken in his insistence that peering through his living room
blinds—and even though "taking turns" of five seconds with his guests in watching events
unfold—given the adequate lighting and his good vision, he had ample opportunity to
observe the acts he described. See, e.g., May 17, 2017 Tr. at 33, 48, 70-71, and 56 ("I could
still see outside"). He testified that because of the proximity of his window to the action,
"when you looking out the window * * * you still got no choice, but to see them. Like * * *
they right there. * * * [T]hat's like me standing outside next to 'em. I can see it --." Id. at
79. Moreover, he averred, "how I actually knew that it was him, is when I was looking out
my window, he looked at my window, 'cause I guess he was trying to see * * * if anybody
was watching * * * but yes, I seen his face * * * * Dai Dai and Devon's face." Id. at 50-51.
And his senses were not beclouded; he said that he does not drink, or smoke anything. Id.
at 73.
         {¶ 18} The circumstances were such, too, that it is reasonable that T.B. would have
recognized immediately the significance of the events and paid keen attention: he first
heard and then later saw the gun being fired; he was on friendly terms with the victim Brian
Woodson; he had had the assailants into his apartment to play games and relax; and he
No. 18AP-837                                                                                            7

recounted that the events did not happen in one instant, but unfolded with Mr. Hughes
leaving the victim, returning to inflict more harm, and then twice more leaving and
returning to shoot again each time.
        {¶ 19} Although that night T.B. denied having witnessed anything ("[b]ecause I was
scared"), id. at 34, we are given no reason to believe that the account he provided police
four or five weeks later (after speaking with the victim's relatives, who were "trying to figure
out, what happened"), id. at 37, 89-91, diverged in any significant way from the testimony
he gave at the bindover hearing some six and a half months after the shooting. Interviewed
individually, id. at 90, he "told them everything," he later testified, "because I seen it all."
Id. at 91. Compare, e.g., Biggers, 409 U.S. at 201 (lapse of even seven months between
rape and confrontation did not undermine witness's good record for reliability). Moreover,
Mr. Hughes's assertion that T.B.'s "memory had significantly eroded" by the time of the
hearing "because memory decays at an 'exponential' rate" does not even attempt to take
into account that T.B. claimed familiarity with Mr. Hughes before these events and
therefore was not basing his account on " 'an initial observation' " of someone from the time
of the crime. Appellant's Brief at 15.
        {¶ 20} And T.B. expressed unwavering certainty in standing by his account: "It's not
a story. It's real -- it's real life stuff that's going on. * * * * I seen it all * * * * Yes, I'm telling
the truth." May 17, 2017 Tr. at 86, 91, 97.
        {¶ 21} The juvenile court did not err in finding the probable cause required for
bindover to the general division of the common pleas court. We overrule Mr. Hughes's
single assignment of error and affirm the judgment of the Franklin County Court of
Common Pleas that convicted him of aggravated murder.
                                                                                  Judgment affirmed.

                        KLATT, P.J. and LUPER SCHUSTER, J., concur.
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