[Cite as In re Robert M., 2011-Ohio-5177.]




          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                                    No. 96278




                                 IN RE: ROBERT M.
                                             A Minor Child



                                             JUDGMENT:
                                              AFFIRMED


                                  Civil Appeal from the
                                   Juvenile Division of
                         Cuyahoga County Court of Common Pleas
                                 Case No. DL 10115998

              BEFORE:             Blackmon, J., Kilbane, A.J., and Celebrezze, J.

              RELEASED AND JOURNALIZED:                      October 6, 2011
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                                                  -i-

ATTORNEY FOR APPELLANT

Timothy Young
Ohio Public Defender

Brooke M. Burns
Assistant State Public Defender
250 E. Broad Street, Suite 1400
Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

Milko Cecez
Assistant Prosecuting Attorney
Juvenile Division
2210 Cedar Avenue, 3rd Floor
Cleveland, Ohio 44115



PATRICIA ANN BLACKMON, J.:

       {¶ 1} Appellant Robert M. appeals the juvenile court adjudicating him
                                          1




a delinquent minor and committing him to the Department of Youth Services.

Robert M. assigns the following errors for our review:



       1
        The juvenile is referred to herein by his first name and the initial of his last name in
accordance with this court’s established policy regarding non-disclosure of identities in all juvenile
cases.
                                    3
      “I. Robert M. was denied his right to due process and a fair
      trial when the State inexplicably lost the photo lineup that
      was crafted out of the investigating officer’s cell phone
      pictures and used to bolster the victim’s identification of
      Robert as the perpetrator of the crime.           Fifth and
      Fourteenth     Amendments      to    the    United    States
      Constitution, Section 16, Article I of the Ohio
      Constitution.”

      “II. Robert M. was denied his right to due process and a
      fair trial when the trial court permitted testimony
      regarding an inherently suggestive and unreliable lineup
      that was used against Robert even though it was never
      provided to defense counsel, despite numerous discovery
      requests, and was never produced at trial.”

      “III. Robert M. was denied his right to the effective
      assistance of counsel as guaranteed by the Sixth and
      Fourteenth Amendments to the United States Constitution
      and Section 10, Article I of the Ohio Constitution when
      counsel failed to file a motion to suppress or object to
      identification evidence, which would have been supported
      by the trial court.”

      “IV. Robert M.’s adjudication and commitment must be
      reversed and remanded for a new trial because his
      adjudication was against the manifest weight of the
      evidence.   Fifth and Fourteenth Amendments to the
      United States Constitution, Article I, Section 16 of the
      Ohio Constitution.”

      {¶ 2} Having reviewed the record and pertinent law, we affirm Robert

M.’s adjudication as a delinquent minor. The apposite facts follow.

      {¶ 3} On October 24, 2009, Delance Tyler was shot as he stood on his

front porch.   On August 16, 2010, the state filed a complaint alleging that

Robert M. was delinquent of felonious assault with one and three-year
                                         4
firearm specifications attached; improper discharge of a firearm into a

habitation; and carrying a concealed weapon.        On September 15, 2010,

Robert M. pleaded not guilty at his arraignment.          Thereafter, several

pretrials were conducted and on December 1, 2010, a bench trial commenced.

                                    Bench Trial

      {¶ 4} At trial, the victim, Tyler, age 41, testified that on October 24,

2009, while on his way home from work, he stopped at a corner store a block

from his house. As he exited the store, he heard a lot of noise from across the

street. Tyler assumed the noise was coming from kids playing, but moments

later he heard footsteps to the side of him and thought it was one of the kids

who knew him from the neighborhood.

      {¶ 5} Tyler testified that when he turned to look, he saw a young man,

later identified as Robert M., who asked him where he was from, and Tyler

responded that he lived down the street. Tyler stated that Robert M. said

“we about to work,” a street parlance indicating that he wanted to fight, and

then proceeded to take off his jacket.

      {¶ 6} Tyler testified that he told Robert M. that he was not about to

fight him because he was old enough to be his father, at which time, eight or

nine other boys walked up, and Robert M. suggested that Tyler fight one of

the older boys.   Tyler refused and continued walking towards his house,
                                      5
Robert M. and the others followed, and someone shouted “Goonies,” the name

of a street gang that operates in the neighborhood.

      {¶ 7} As Tyler reached his house and was about to open the door, he

found it locked. He turned around and saw Robert M. at the curb.         Tyler

testified that Robert M. produced a gun, proceeded to fire four times, and

three bullets hit him in the legs. Tyler attempted to take cover behind the

brick wall on the porch, fully expecting that Robert M. would approach and

kill him, but he fled along with the others down the street.

      {¶ 8} Tyler was taken to the hospital and provided a description of his

assailant to the police, indicating that he recognized Robert M. from the

neighborhood. Tyler subsequently identified Robert M. when he was shown a

photo array several months later.

      {¶ 9} Officer William Cunningham, II testified that he interviewed

Tyler at the hospital shortly after the shooting took place.            Officer

Cunningham testified that Tyler indicated that he recognized the shooter.

Officer Cunningham later learned through his investigation in the

neighborhood that the shooter’s name was “Rob,” but that individual was

then serving a six-month sentence in the Ohio Department of Youth Services.

 Officer Cunningham arrested Robert M. shortly after his release, developed

a photo array, showed it to Tyler, who identified Robert M. as the shooter.
                                     6
      {¶ 10} Robert M. took the stand in his own defense and testified that he

was currently on parole for being inside a stolen vehicle. Robert M. denied

any involvement in the shooting.

      {¶ 11} The trial court found Robert M. delinquent on all counts and

sentenced him to a minimum of two years at the Ohio Department of Youth

Services. Robert M. now appeals.

                                   Photo Array

      {¶ 12} We will address the first two assigned errors together because of

their common basis in fact and law. Robert M. argues he was denied a fair

trial because the state lost the photo array and because the trial court

permitted testimony about the allegedly suggestive and unreliable photo

array.

      {¶ 13} In Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 333, 102

L.Ed.2d 281, the United States Supreme Court addressed the issue of

whether a criminal defendant is denied due process of law by a state’s failure

to preserve evidence. The court stated the following:

      “The Due Process Clause of the Fourteenth Amendment, *
      * *, makes the good or bad faith of the State irrelevant
      when the State fails to disclose to the defendant material
      exculpatory evidence. But we think the Due Process
      Clause requires a different result when we deal with the
      failure of the State to preserve evidentiary material of
      which no more can be said than that it could have been
      subjected to tests, the result of which might have
                                     7
      exonerated the defendant. * * * We think that requiring
      a defendant to show bad faith on the part of the police
      both limits the extent of the police’s obligation to preserve
      evidence to reasonable bounds and confines it to that class
      of cases where the interests of justice most clearly require
      it, i.e., those cases in which the police themselves by their
      conduct indicate that the evidence could form a basis for
      exonerating the defendant. We therefore hold that unless
      a criminal defendant can show bad faith on the part of the
      police, failure to preserve potentially useful evidence does
      not constitute a denial of due process of law.” (Citations
      omitted.)

      {¶ 14} Therefore, the United States Supreme Court established two

tests: one that applies when the evidence is “materially exculpatory” and one

that applies when the evidence is “potentially useful.” If the state fails to

preserve evidence that is materially exculpatory, the defendant’s rights have

been violated. Id. “However, evidence is material only if there is a reasonable

probability that had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” State v. Schurlock, 5th Dist. No.

05-CA-116, 2006-Ohio-4445. “To be materially exculpatory, ‘evidence must

both possess an exculpatory value that was apparent before the evidence was

destroyed, and be of such a nature that the defendant would be unable to

obtain comparable evidence by other reasonably available means.’” State v.

Colby, 11th Dist. No. 2002-P-0061, 2004-Ohio-343, quoting California v.

Trombetta (1984), 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413.
                                       8
      {¶ 15} If, on the other hand, the state fails to preserve evidence that is

potentially useful, the defendant’s rights have been violated only upon a

showing of bad faith. Schurlock, supra. The term “bad faith” implies

something more than bad judgment or negligence; “it imports a dishonest

purpose, moral obliquity, conscious wrongdoing, breach of a known duty

through some ulterior motive or ill will partaking of the nature of fraud. It

also embraces actual intent to mislead or deceive another.” State v. Franklin,

Montgomery 2d Dist. No. 19041, 2002-Ohio-2370.

      {¶ 16} In the instant case, it is appalling that the state lost the photo

array, nevertheless, we find that it was potentially useful, rather than

materially exculpatory.     Officer Cunningham testified that he used his

cellular phone to photograph Robert M., created a photo array using

individuals with similar appearances, and then showed the array to Tyler.

Officer Cunningham stated that Tyler identified Robert M. without any

suggestions or prodding. Officer Cunningham subsequently forwarded the

photo array to the detective bureau.

      {¶ 17} Here, we find no evidence of bad faith, dishonest purpose, moral

obliquity, or conscious wrongdoing. More importantly, we find that the loss

of the photo array was not prejudicial.
                                      9
      {¶ 18} Tyler recognized Robert M. from seeing him in the neighborhood

and also had ample opportunity to observe him at the time of the attack.

At trial, the following exchange took place:

      “Q. Okay. Just to make sure, a couple more things. You
      stated that you were positive.  How do you know that this is
      the young man that shot you that day?

      “A.      Because he was standing right next to me.

      “Q.      Did you see the guys - -

      “A. Before - - when he first came, he was standing right next
      to me, like right here. Our first initial conversation was right
      here.” Tr. 23-24.

      “* * *

      “Q. Okay. And did you give a description of the person who
      shot you to Officer Cunningham?

      “A.      Yes.

      {¶ 19} “Q.      And what was that description?

      “A.      Brown skinned and short haircut.

      “Q.      Okay.

      “A. And I let the officer know that I knew his face, I knew who
      he was.” Tr. 26.

      {¶ 20} The above excerpt, and elsewhere in the record, establishes that

Tyler had no problem identifying Robert M. as the person who shot him that

day. In State v. King (Dec.19,1995), 10 Dist. 95APA04-421, a case involving
                                      10
a similar fact pattern, a police detective investigating the robbery of a gas

station showed the cashier a photographic array the day after the robbery.

The cashier chose the pictures of the two defendants and indicated that she

was absolutely certain they were the robbers.

      {¶ 21} However, eight years later, the cashier could not identify the

defendant in court. In addition, the photographic array was lost during one

of the defendant’s appeals and could not be used at the trial. The defendant

filed a motion to suppress the cashier’s pretrial identification, which the trial

court denied.

      {¶ 22} On appeal, the court reiterated that reliability is the “linchpin” in

determining the admissibility of identification testimony. The court stated:

      “In this case, Higgins testified that she saw two robbers when
      they asked for cigarettes and pop. She could clearly see their
      faces because they were not wearing masks. She stated that the
      station was well-lit. She testified that the two men were
      probably in the station for ten to fifteen minutes. The next day
      she was asked to look at the photos and she was absolutely
      positive that the two pictures she chose were the robbers.
      Under these circumstances, the prior identification was
      reliable.” Id.

      {¶ 23} Likewise, Tyler had ample opportunity to observe him as they

walked from the corner store to Tyler’s house.       Given Tyler’s unequivocal

identification of Robert M., we conclude he was not prejudiced by the loss of
                                        11
the photo array constructed by Officer Cunningham.               Accordingly, we

overrule the first and second assigned errors.

                         Ineffective Assistance of Counsel

      {¶ 24} In the third assigned error, Robert M. argues defense counsel was

ineffective for failing to file a motion to suppress the identification evidence.

      {¶ 25} In order to prevail on a claim for ineffective assistance of counsel,

the defendant must show (1) that counsel’s performance was deficient, and (2)

that the deficient performance prejudiced the defense so as to deprive the

defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136,

538 N.E.2d 373.

      {¶ 26} Counsel’s performance may be found to be deficient if counsel

“made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Strickland at 687. To

establish prejudice, “the defendant must prove that there exists a reasonable

probability that, were it not for counsel’s errors, the result of the trial would

have been different.” Bradley at 143.

      {¶ 27} In determining whether counsel’s performance fell below an

objective standard of reasonableness, “[j]udicial scrutiny of counsel’s

performance must be highly deferential.” Strickland at 689. Because of the
                                     12
difficulties inherent in determining whether counsel rendered effective

assistance in any given case, a strong presumption exists that counsel’s

conduct fell within the wide range of reasonable, professional assistance. Id.

      {¶ 28} Failure to file a motion to suppress may constitute ineffective

assistance of counsel if there is a solid possibility that the court would have

suppressed the evidence.     State v. Pimental, Cuyahoga App. No. 84034,

2005-Ohio-384. Courts apply a two-prong test to determine the admissibility

of challenged identification testimony. First, the defendant bears the burden

of demonstrating that the identification procedure was unduly suggestive. To

meet this burden, the defendant must show that the procedure was unduly

suggestive and resulted in an unreliable identification. Unreliable means that

the suggestive procedure is capable of resulting in an irreparable mistaken

identity. Simmons v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 19

L.Ed.2d 1247; State v. Page, Cuyahoga App. No. 84341, 2005-Ohio-1493.

      {¶ 29} To determine if the procedure was impermissibly suggestive, the

courts look at the totality of the circumstances, including the victim’s

opportunity to view the defendant during the offense, her degree of attention,

the accuracy of descriptions given to the police, her level of certainty, and

lapse of time from the event to the time of identification. State v. Goza,

Cuyahoga App. No. 89032, 2007-Ohio-6837, citing State v. Caldwell (Sept. 27,
                                     13
1984), Cuyahoga App. No. 45112. Then, even if the court finds the procedure

suggestive, the identification would still be admissible if the identification

itself was adequately reliable. Id., citing State v. Moody (1978), 55 Ohio St.2d

64, 67, 377 N.E.2d 1008.

        {¶ 30} Here, as discussed in the previous assigned errors, Tyler was

positive that Robert M. was the shooter, having recognized him from seeing

him around the neighborhood. In addition, Tyler had ample opportunity to

observe Robert M., who walked beside Tyler for some distance prior to the

shooting. Further, when Tyler reached his house and found the front door

locked, he turned around and was face to face with Robert M. before he was

shot.

        {¶ 31} We conclude, Tyler’s unequivocal identification of Robert M.

would have made filing a motion to suppress the identification evidence futile.

 As such, defense counsel was not ineffective for failing to file such a motion.

Accordingly, we overrule the third assigned error.

                         Manifest Weight of the Evidence

        {¶ 32} In the fourth assigned error, Robert M. argues his convictions

were against the manifest weight of the evidence.
                                      14

      {¶ 33} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865

N.E.2d 1264, the Ohio Supreme Court addressed the standard of review for a

criminal manifest weight challenge, as follows:

      “The criminal manifest-weight-of-the-evidence standard
      was explained in State v. Thompkins, 78 Ohio St.3d 380,
      1997-Ohio-52, 678 N.E.2d 541. In Thompkins, the court
      distinguished between sufficiency of the evidence and
      manifest weight of the evidence, finding that these
      concepts differ both qualitatively and quantitatively. Id.
      at 386, 678 N.E.2d 541. The court held that sufficiency of
      the evidence is a test of adequacy as to whether the
      evidence is legally sufficient to support a verdict as a
      matter of law, but weight of the evidence addresses the
      evidence’s effect of inducing belief. Id. at 386-387, 678
      N.E.2d 541. In other words, a reviewing court asks whose
      evidence is more persuasive—the state’s or the
      defendant’s? We went on to hold that although there may
      be sufficient evidence to support a judgment, it could
      nevertheless be against the manifest weight of the
      evidence. Id. at 387, 678 N.E.2d 541. ‘When a court of
      appeals reverses a judgment of a trial court on the basis
      that the verdict is against the weight of the evidence, the
      appellate court sits as a “thirteenth juror” and disagrees
      with the factfinder’s resolution of the conflicting
      testimony.’ Id. at 387, 678 N.E.2d 541, citing Tibbs v.
      Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d
      652.”

      {¶ 34} As previously discussed, Tyler unequivocally identified Robert M.

as his assailant. After listening to all the evidence, the trial court stated:

      “Robert, I got to decide whether the evidence is sufficient
      to prove beyond a reasonable doubt. I didn’t believe your
      testimony when you came up here. I have no reason to
      doubt the victim’s testimony. So I find you guilty of all
      the charges.” Tr. 63-64.
                                      15


      {¶ 35} The determination of weight and credibility of the evidence is for

the trier of fact. State v. Chandler, 10th Dist. No. 05AP-415, 2006-Ohio-2070,

citing State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212.            The

rationale is that the trier of fact is in the best position to take into account

inconsistencies, along with the witnesses’ manner and demeanor, and

determine whether the witnesses’ testimonies are credible. State v. Williams,

10th Dist. No. 02AP-35, 2002-Ohio-4503.

      {¶ 36} Accordingly, an appellate court may not substitute its view for

that of the jury, but our role “in resolving conflicts in the evidence” is to

determine whether the jury lost its way thereby creating a manifest

miscarriage of justice that requires a new trial. Thompkins at 387, 678

N.E.2d 541.

      {¶ 37} Here, we are not disposed to reach such a conclusion.          After

reviewing the entire record, we cannot conclude that any of the evidence

weighs heavily against the trial court’s finding of guilt.      Accordingly, we

overrule the fourth assigned error.

      Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
                                         16
      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.      The defendant’s finding of delinquency having

been affirmed, any bail pending appeal is terminated. Case remanded to the

trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, JUDGE

MARY EILEEN KILBANE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
