[Cite as In re D.W., 2020-Ohio-2707.]


                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



IN RE: D.W., a minor child.             :      APPEAL NOS. C-180644
                                                            C-180654
                                        :       TRIAL NOS. 18-5090 X
                                                           18-3794 X

                                        :          O P I N I O N.




Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: April 29, 2020




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

Timothy Young, Ohio State Public Defender, and Timothy B. Hackett, Assistant
State Public Defender, for Appellant D.W.
                       OHIO F IRST DISTRICT COURT OF APPEALS



CROUSE, Judge.

       {¶1}   D.W. appeals from judgments of the Hamilton County Juvenile Court

that adjudicated him delinquent for having engaged in conduct which, if it had been

engaged in by an adult, would have constituted the offense of aggravated robbery with a

firearm specification. For the reasons set forth below, we affirm the juvenile court’s

judgments.

                               Facts and Procedure

       {¶2}   In the case numbered 18-3794X, D.W. was accused of being delinquent

for committing an act which, if it had been committed by an adult, would have

constituted the offense of aggravated robbery in violation of R.C. 2911.01(A). In the

case numbered 18-5090X, D.W. was further accused of being delinquent for

committing an act which would have constituted the offense of robbery in violation

of R.C. 2911.02(A)(1). Each offense was supplemented with one- and three-year gun

specifications pursuant to R.C. 2941.141 and 2941.145. Prior to trial, D.W. stipulated to

his participation in the robbery. However, he elected to proceed to a joint bench trial

with S.D. on the aggravated-robbery charge and the firearm specifications; the key

inquiry at trial being whether they used firearms during the offense.

       {¶3}   At trial, the state presented the testimony of Mark Brady and Detective

Joseph Coombs. Brady, a pizza delivery driver, testified that he went to an address in

the Price Hill neighborhood of Cincinnati to make a delivery. When he knocked on

the door, no one answered. According to Brady, he called the number associated

with the order and an unidentified individual told him to “wait there, I’m in the

bathroom.”

       {¶4}   As Brady waited, three people approached him. Brady testified, “One

was standing by my car, and one was on the corner of the street, and one come up to



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me.” According to Brady, two of the individuals were holding what he believed to be

firearms. Brady described one as a black pistol and one as a gray gun with holes in

the barrel. Brady denied seeing orange tips on either of the guns, which would have

been indicative of BB guns.1 Brady testified that one of the individuals instructed

him not to move while the guns were visibly held at the individuals’ sides. The

individual later identified by Brady as S.D. then reached into Brady’s pockets, took

his money, his wallet, his phone, and the pizzas, and fled. Brady returned to work

and contacted the police.

         {¶5}     Coombs, a member of the Cincinnati Police Investigative Unit, testified

that he questioned S.D. and D.W. about their interaction with Brady. According to

Coombs, S.D. admitted his involvement in the robbery, but denied having a firearm.

S.D. also identified D.W. as the person who placed the delivery order and stated that

D.W. was armed with what S.D. believed to be a 9 mm handgun. According to

Coombs, D.W. also admitted his involvement in the robbery, but maintained that he

had only a BB gun. However, D.W. later admitted to Coombs that he had told S.D.

and the other involved individual that it was a 9 mm handgun. Coombs testified that

when asked to locate the gun, S.D. and D.W. both stated it was “gone.” Neither S.D.

nor D.W. testified.

         {¶6}     At the close of trial, the magistrate adjudicated D.W. and S.D.

delinquent for having engaged in conduct which, if it had been engaged in by an adult,

would have constituted the offense of aggravated robbery with a firearm specification.

Without objection from D.W., the juvenile court adopted the magistrate’s decision.

         {¶7}     D.W. filed this timely appeal and raises the following assignments of

error:

1
 Although never expressly stated, it is apparent from the trial transcript that the magistrate and the parties
were operating under the presumption that orange tips are characteristic of BB guns.



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       1. D.W.’s due process and Confrontation Clause rights were plainly

           violated when the State introduced inculpatory statements of an

           alleged co-defendant through the surrogate testimony of an

           investigating detective.

       2. The Hamilton County Juvenile Court committed plain error when

           it adopted the Magistrate’s Decision because the Magistrate’s

           operability and deadly weapon findings were against the

           sufficiency and manifest weight of the evidence.

       3. D.W. was deprived of the effective assistance of counsel.

                                  Law and Analysis

                            I.   Confrontation Clause

       {¶8}    In his first assignment of error, D.W. argues that the juvenile court

erred in considering Detective Coombs’s testimony regarding S.D.’s out-of-court

confession statements. The statements include, “[S.D.] said that [D.W.] was armed

with a gun.”; “[S.D.] believed it was possibly real by [D.W.’s] mannerisms, the way he

carried it—”; “[D.W.] said it was a nine-millimeter. * * * The statement was made [to

S.D.] earlier in the day.”; and all relevant discussions therein.

       {¶9}    Because D.W. failed to file objections to the magistrate’s decision, he

waived all but plain error. Juv.R. 40(D)(3)(b). To prevail on a claim of plain error,

the appellant must show that an error occurred, that the error was plain, and that the

error affected the outcome of the trial—i.e., there exists a reasonable probability that,

but for the error, the result of the proceeding would have been different. Crim.R.

52(B); State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22.




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       {¶10} Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476

(1968), governs the admissibility of inculpatory statements made by a nontestifying

codefendant. In Bruton, the United States Supreme Court held that, in the context of

a joint trial, the admission of a nontestifying codefendant’s confession that

implicates the defendant violates the defendant’s rights under the Confrontation

Clause.    The Bruton decision recognized that a nontestifying codefendant’s

confession is “inevitably suspect” and “[t]he unreliability of such evidence is

intolerably compounded when the alleged accomplice * * * does not testify and

cannot be tested by cross-examination.” Id. at 135-136. Based on these concerns, the

Court found that when such powerfully incriminating statements are spread before

the jury in a joint trial, jurors could not be presumed to ignore the statements when

considering the guilt or innocence of the fellow defendant. Id.

       {¶11} However, the same concerns are not present in the case of a bench

trial. In a bench trial, the trial court is presumed to apply the law correctly and to act

properly in considering the evidence. In re Watson, 47 Ohio St.3d 86, 91, 548

N.E.2d 210 (1989). Therefore, this court has held Bruton to be inapplicable to bench

trials. In re Jones, 1st Dist. Hamilton Nos. C-090497, C-090498 and C-090499,

2010-Ohio-3994, ¶ 24. Instead, there exists a “rebuttable presumption that the trial

court [is] capable of disregarding inadmissible extrajudicial statements implicating

[the defendant].” Id. at ¶ 25.

       {¶12} A review of the record in this case demonstrates that the magistrate

improperly considered S.D.’s confession statements to Coombs as substantive

evidence against D.W. Three of the magistrate’s factual findings relied upon S.D.’s

statements. In rendering her decision, the magistrate found the following: “[S.D.]

also stated that while he had a BB gun, [D.W.] had a real gun during the commission



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of the offense.”; “While [S.D.] admitted that his co-defendant [D.W.] was holding a

firearm, he wants the Court to believe that he was holding a BB gun during the

offense.”; and “The evidence also established that [S.D.] stated that he saw [D.W.]

with a firearm during the commission of offense.” Because these findings of fact

were approved and adopted by the juvenile court, the juvenile court used S.D.’s

confession statements against D.W. in violation of the Confrontation Clause.

         {¶13} However, based on a review of the record, the juvenile court’s error

does not rise to the level of plain error. At trial, Brady testified that three individuals

surrounded him, two holding what he believed to be firearms. Brady described one

as a black pistol and one as a gray gun with holes in the barrel. Brady denied seeing

orange tips on either of the guns.        Brady testified that one of the individuals

instructed him not to move while the guns were visibly brandished at the individuals’

sides.

         {¶14} Although Brady could not identify D.W. as one of the individuals

involved in the offense, D.W. admitted to Coombs his involvement in the robbery

and his possession of a gun, albeit a BB gun. At trial, Coombs testified that he and

D.W. “talked about the gun, whether it was a BB gun or not and why somebody

would think that it might be a real gun.” According to Coombs, D.W. admitted that

“he told [the other individuals involved in the robbery] that it was a nine, nine-

millimeter handgun. * * * And he told people that that’s what it was that day, same

day as the robbery.” Coombs stated that a “nine,” when used in that manner, does

not refer to a BB gun.

         {¶15} D.W.’s confession, when combined with Brady’s testimony, forms

reliable evidence of delinquency. Therefore, while this is certainly a close case, we




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cannot conclude that the juvenile court’s error amounts to plain error. D.W.’s first

assignment of error is overruled.

                 II.    Weight and Sufficiency of the Evidence

       {¶16} In his second assignment of error, D.W. challenges the sufficiency and

weight of the juvenile court’s operability finding. Specifically, D.W. contends that the

state presented insufficient evidence that he used an operable firearm to facilitate the

robbery, and not a BB gun.

       {¶17} To determine whether a conviction is supported by sufficient evidence,

“[t]he relevant inquiry is 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.” State v. Jenks, 61 Ohio

St.3d 259, 274, 574 N.E.2d 492 (1991). In reviewing a challenge to the weight of the

evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997). We must review the entire record, weigh the evidence,

consider the credibility of the witnesses, and determine whether the trier of fact

clearly lost its way and created a manifest miscarriage of justice. Id.

       {¶18} D.W. was adjudicated delinquent for committing an act which, if it had

been committed by an adult, would have constituted the offense of aggravated

robbery with a firearm specification. To establish both the deadly-weapon element

of aggravated robbery and the firearm specification, the state must prove beyond a

reasonable doubt that the offender possessed an operable firearm. State v. Brown,

1st Dist. Hamilton No. C-180180, 2019-Ohio-3349, ¶ 12. When determining whether

a firearm is operable, “the trier of fact may rely upon circumstantial evidence,

including, but not limited to, the representations and actions of the individual

exercising control over the firearm.” R.C. 2923.11(B)(2).



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       {¶19} Where, as here, the alleged firearm is never recovered, proof of its

existence and operability may be based on lay testimony. State v. Murphy, 49 Ohio

St.3d 206, 208, 551 N.E.2d 932 (1990). A witness’s belief that the accused possessed

a gun, coupled with evidence of the accused’s intent to create and use that belief for

his own criminal purpose, is sufficient to prove a firearm specification. State v.

Raheem, 1st Dist. Hamilton No. C-970928, 1998 WL 636984, *6 (Sept. 18, 1998).

Thus, an explicit threat related to a firearm can support a finding of operability. See,

e.g., State v. Obsaint, 1st Dist. Hamilton No. C-060629, 2007-Ohio-2661 (defendant

presented a note to the bank teller indicating that he would shoot her if she did not

comply with his demands); State v. Jeffers, 143 Ohio App.3d 91, 757 N.E.2d 417 (1st

Dist.2001) (defendant verbally threatened to “blow [victim’s] head off” if she refused

to give him the money).

       {¶20} An implicit threat to discharge a brandished gun can also satisfy the

state’s burden of proving that the firearm was operable. Thompkins, 78 Ohio St.3d

380, 678 N.E.2d 541. In Thompkins, the Ohio Supreme Court found the following

facts sufficient to show the operability of a firearm: the defendant had a black gun in

his hand, the victim was frightened, the defendant told the victim that it was a

“holdup,” the defendant repeatedly told the victim to go faster, and the defendant

told the victim not to call the police for ten minutes. Id. at 383. These circumstances

should be distinguished from the mere possession of a firearm which, “without

something more, is not enough to allow for a finding that it is operable.” In re: S.D.,

1st Dist. Hamilton No. C-180651, 2020-Ohio-941, ¶ 11.

       {¶21} Throughout the course of litigation, D.W. has maintained that he

possessed only a BB gun during the robbery. A BB gun is not as a matter of law a

firearm.   State v. Brown, 101 Ohio App.3d 784, 788-789, 656 N.E.2d 741 (1st



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Dist.1995) (holding that the state presented insufficient evidence of the deadly-

weapon element of assault where there was no evidence on the particular BB gun’s

capability of inflicting death). However, the state presented sufficient evidence to

establish that D.W. possessed an operable firearm, not a BB gun.

       {¶22} This court decided the sufficiency of the evidence as to the operability

of the firearms in S.D.’s appeal. See In re: S.D. Although this court relied, in part, on

the then-unchallenged statements of S.D., the remaining evidence still supports the

juvenile court’s operability finding.

       {¶23} Brady testified that he saw two firearms during the offense—one

possessed by S.D. and one possessed by another individual. Although Brady could

not identify D.W. as one of the people involved in the offense, D.W. admitted to

participating in the robbery and to bringing a gun to the robbery. While D.W.

claimed he possessed only a BB gun, his actions certainly convinced Brady otherwise.

The record demonstrates that D.W. openly displayed a black pistol at his side—i.e., “a

position one would hold an operable firearm.” Id. at ¶ 12. At the same time, one of

the individuals ordered Brady not to move. Under these circumstances, the evidence

supports a finding that D.W. openly brandished a firearm while Brady was implicitly

threatened. Thus, viewed in the light most favorable to the state, this evidence

establishes that D.W. possessed an operable firearm.

       {¶24} Likewise, we cannot conclude that the juvenile court’s operability finding

was against the manifest weight of the evidence. “[T]he weight to be given the

evidence and the credibility of the witnesses are primarily for the trier of the facts.”

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the

syllabus. “Because the trier of fact sees and hears the witnesses and is particularly

competent to decide whether, and to what extent, to credit the testimony of



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particular witnesses, we must afford substantial deference to its determination of

credibility.” (Internal quotations omitted.) State v. Glover, 1st Dist. Hamilton No. C-

180572, 2019-Ohio-5211, ¶ 30. Here, the magistrate heavily relied on the testimony

of Brady.   The magistrate found Brady to be “a very credible witness” and she

“absolutely believe[d] him.” Brady’s testimony, when combined with D.W.’s own

confession, forms reliable evidence of delinquency. Therefore, in light of the entire

record and the credibility of the witnesses, this is not a case where the trier of fact

clearly lost its way and created such a manifest miscarriage of justice that the

judgments must be reversed.

       {¶25} D.W.’s second assignment of error is overruled.

                   III.   Ineffective Assistance of Counsel

       {¶26} In his third assignment of error, D.W. argues that he was deprived of

the effective assistance of counsel where his trial counsel assented to a violation of

the Confrontation Clause and failed to object to the magistrate’s decision.

       {¶27} To prove ineffective assistance of counsel, the defendant must show (1)

“that counsel’s performance was deficient”; and (2) “that the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). To prove prejudice, the “defendant must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceedings would have been different.” Id. at 694.

       {¶28} The prejudice standard for reviewing plain-error claims is “the same

deferential standard for reviewing ineffective assistance of counsel claims.” State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. Therefore,

having already determined that the juvenile court’s violation of D.W.’s Confrontation




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Clause rights did not amount to prejudicial error, we necessarily find that counsel’s

performance with regard to such violation also does not amount to prejudicial error.

       {¶29} Having already determined that D.W.’s adjudication was supported by

the sufficiency and manifest weight of the evidence, we also conclude that D.W. was

not denied his right to effective assistance of counsel where counsel failed to object to

the magistrate’s decision. See In re Meatchem, 1st Dist. Hamilton No. C-050291,

2006-Ohio-4128, ¶ 32 (“Because we have addressed both the manifest weight of the

evidence and the sufficiency of the evidence in this appeal, trial counsel’s failure to

raise it in the form of an objection to the magistrate’s decision cannot be said to have

been prejudicial.”); see also In re Darvius C., 6th Dist. Erie No. E-00-064, 2002 WL

328377 (Mar. 1, 2002) (holding that even if counsel was deficient in failing to file

objections to the magistrate’s decision, the juvenile was not prejudiced where the

adjudication was supported by the sufficiency and weight of the evidence).

       {¶30} D.W.’s third assignment of error is overruled.

                                     Conclusion

       {¶31} For the foregoing reasons, D.W.’s three assignments of error are

overruled and the judgments of the juvenile court are affirmed.

                                                                     Judgments affirmed.



Z AYAS , P.J., and W INKLER , J., concur.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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