State v. E.T. , 2019 Ohio 1204 ( 2019 )

[Cite as State v. E.T., 2019-Ohio-1204.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 17AP-828
v. : (C.P.C. No. 15CR-6021)
[E.T., Jr.], : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on April 2, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and Valerie
Swanson, for appellee. Argued: Valerie Swanson.
On brief: Timothy Young, Ohio Public Defender, and
Timothy B. Hackett, for appellant. Argued: Timothy B.
Hackett.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, E.T., Jr., appeals the October 25, 2017 decision of the
Franklin County Court of Common Pleas. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} This matter arises out the homicide of Jaurice Blakely which occurred on or
about the late evening of January 12, 2015 to the early morning hours of January 13, 2015
at Players Family Billiards ("pool hall") in Franklin County.
{¶ 3} On January 14, 2015, a complaint of delinquency was filed in the Franklin
County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch ("juvenile
court"). The complaint charged appellant with the offense of murder, in violation of R.C.
No. 17AP-828 2
2903.02(A), an unclassified felony. On January 22, 2015, the juvenile court filed an order
amending the complaint to include a firearm specification pursuant to R.C. 2941.145.
{¶ 4} On January 22, 2015, plaintiff-appellee, State of Ohio, filed a motion to
relinquish jurisdiction pursuant to R.C. 2152.12(B) and Juv.R. 30 and transfer the cause to
the Franklin County Court of Common Pleas, General Division ("trial court"). On the same
date, an entry was filed in the juvenile court notifying appellant that proceedings would
occur to determine whether the court's jurisdiction would be relinquished and the case
transferred to a court having jurisdiction over the matter. Appellant's counsel signed the
entry acknowledging notification on behalf of appellant and appellant's parent, guardian,
or custodian. On February 10, 2015, the juvenile court filed an entry accepting the
stipulations of the parties, finding that all parties had been properly served with the
January 22, 2015 motion to relinquish jurisdiction, and finding appellant was 14 years of
age at the time of the alleged offense.
{¶ 5} On July 15, 2015, the juvenile court held a probable cause hearing on the
motion to relinquish jurisdiction. At the hearing, Ralph Rickels, a detective of the Whitehall
Division of Police, testified he investigated a homicide at the pool hall between January 12
and 13, 2015. Rickels testified he obtained surveillance video from the pool hall.
{¶ 6} John Dickey, a detective of the Whitehall Division of Police, testified he
responded to the report of a homicide at the pool hall after midnight on January 13, 2015.
Dickey testified that when he reviewed the surveillance video from the pool hall, he
observed a male who appeared to be firing a gun at a vehicle outside the pool hall. After
locating the vehicle, Dickey found a bullet hole in the left front quarter panel of the vehicle
as well as two bullet holes in the hood. Dickey spoke with the vehicle's owner, Layshonda
Quintero, who stated that she and MarQeal Fox were present at the pool hall on the night
of the incident.
{¶ 7} Mark Hopper, a detective of the Whitehall Division of Police, testified he
investigated the incident in question. Hopper testified he recovered three shell casings and
two bullets from inside the pool hall and five shell casings were recovered outside the pool
hall.
{¶ 8} James Reichgott testified that on January 12, 2015, he was working at the
pool hall until between 8:00 and 9:00 p.m. when his shift ended. After he finished his shift,
No. 17AP-828 3
he joined some friends at the pool hall to watch Ohio State play in the college football
national championship game. Between 12:15 and 12:30 a.m. on January 13, 2015, after he
finished watching the game, he was preparing to leave when a fight started. According to
Reichgott, two men were involved in the fight, including a "black male with light
complexion * * * who was approximately 5'7", 170 pounds" and another man "who was also
5'7", 170 pounds with an afro style haircut." (July 15, 2015 Tr. at 66-67.) He also observed
two women involved with the situation, but did not recall whether they were fighting.
{¶ 9} Reichgott observed the fight as it moved from one pool table to another in the
pool hall until he heard someone say, "[H]e's got a gun." (July 15, 2015 Tr. at 63.) Reichgott
then sustained a gunshot wound to his right leg and fell to the ground. He heard between
three and four gunshots, but did not see the person who shot him. Reichgott observed
another man on the floor by the door to the patio. Reichgott was rushed to the hospital
where he received treatment for his injury. He missed two months of work and now has
arthritis in his leg.
{¶ 10} Shakil Gardner testified that on the evening of January 12, 2015, he went to
watch the national championship game at the pool hall with his girlfriend and other friends,
including Jaurice Blakely. While there, Gardner played pool and drank beer and liquor.
{¶ 11} During his game of pool, Gardner observed a man walk past him and give him
"a certain type of look." (July 15, 2015 Tr. at 117.) Gardner looked back at the man for about
two to three seconds until the man asked Gardner whether he remembered him. When
Gardner replied in the negative, the man stated something about going to middle school
together. Gardner replied that he did not remember the man. Eventually the man walked
away and Gardner resumed playing pool.
{¶ 12} Gardner's friends asked what the exchange between Gardner and the man
had concerned. Gardner replied that he believed the man was upset that Gardner did not
remember him. Gardner observed that the man had walked to another group of people
who were staring at him and pointing.
{¶ 13} Gardner and Blakely went to the bar together and observed that two men, one
in red with long dreadlocks and another who was tall and wearing a red hat, were staring at
them. After Gardner and Blakely left the bar area and resumed playing pool, they were
approached by the two men who were staring at them at the bar. Gardner and Blakely
No. 17AP-828 4
exchanged words with the two men and followed them outside, believing that they wanted
to fight. The two men denied wanting to fight and walked to a vehicle. Gardner thought the
two men had a gun in the car, so he told Blakely to end the situation and return inside.
{¶ 14} Gardner and Blakely returned inside and confronted the first person who
approached Gardner. Gardner tried to calm everyone down and resumed playing pool. At
some later point, Gardner returned to the bar when he heard that a fight had started.
Gardner walked toward the fight, observing a lot of wrestling and commotion, but was
unable to see his friend. Gardner testified that as he was walking toward the fight:
I see like a gun -- before I even see the person's face or anything,
I see somebody like this holding a gun, like -- like in their
waistband or their pocket. That's when like I -- I like I paused
in my stepping and looking and I am just steadily watching the
gun, I'm like I'm still trying to look for my friend at the same
time. So I'm trying to tell * * * him * * * somebody got a gun you
feel me, like they wrestling. Then the -- the wrestling stopped
like I'm thinking everybody see the gun, people trying to get
ready to get to leave; that's when I -- I lose sight of him again
[because] I'm * * * trying to look and see where everybody at.
And then another -- another scuffle break out and as soon as
that scuffle break out, I hear gun shots.
(July 15, 2015 Tr. at 120-21.)
{¶ 15} Immediately after hearing the shots, Gardner ran out of the building. As he
ran away from the building, about halfway across the street, he "started hearing the gun
shots and I stopped and turned back around and seen somebody holding -- pointing a gun
towards me." (July 15, 2015 Tr. at 121-22.) Gardner stated, "I stopped and looked back.
Like seeing somebody, I mean, it was dark, but I seen the same person who I seen inside
with the gun and then I kept running." (July 15, 2015 Tr. at 108.) Gardner testified that
the person who was pointing the gun at him was "the same person with the same clothes
the same everything" as the person he saw inside with the gun. (July 15, 2015 Tr. at 108.)
He resumed running until he found his friends and got in a car with them.
{¶ 16} Approximately one week after the incident, Gardner was called to speak to a
detective and view a photo array. Before viewing the photo array, Gardner spoke with the
detective about the incident. Gardner stated the shooter was wearing a hooded sweatshirt
and a toboggan. Gardner also viewed a video of the incident, but he could not recall whether
he viewed the video before the photo array.
No. 17AP-828 5
{¶ 17} The detective placed the photo array in front of Gardner, stated the photos
were in no particular order, and asked whether he saw the person with the gun. Gardner
testified the photo array consisted of six pictures on a single sheet of paper, three in one
row on the top, and three in another row below that. Gardner testified that after viewing
the photo array, he stated:
I told him like I can't say a hundred percent that I seen him
based off of these pictures. And he said if you -- if you had to --
if you think you seen -- do -- he said is any of them close to it?
I pointed at this picture like yeah, I say, I mean it kind of looked
like him, but to me like a lot of the people in the picture look a
like and the person had on a hoodie. And then * * * I said I can't
really tell off of like basically a 2D portrait of it. And he said if
you have to say a percentage what would you say? I said I said
it was like 50-50 for real.
(July 15, 2015 Tr. at 110.)
{¶ 18} On cross-examination, appellant's counsel showed Gardner the photo array
and engaged in the following dialogue:
[Appellant's Counsel]: And do you recall telling him that * * *
you could eliminate five photos, but you were only about 50
[percent] sure that that was him, correct?
[Gardner]: Yeah.
[Appellant's Counsel]: And that person who you identify as him
is this individual right here, correct?
[Gardner]: I mean, yeah. I don't know is it, I mean, it's a picture
of -- they look alike, but like I said it's different from me seeing
a picture and as in real life like as me seeing the person again
like a 3D, you know what I am saying?
[Appellant's Counsel]: I don't know what you're saying. You
know that that person you circled is this individual, correct.
[Gardner]: Yeah. It looked like him.
[Appellant's Counsel]: Okay. You know it's him, correct? And
this was seven days after the shooting, correct?
[Gardner]: Yeah.
[Appellant's Counsel]: And then seven days after the shooting
you were only 50 [percent] sure that's him, right?
[Gardner]: Fifty percent sure that this picture, yeah.
(July 15, 2015 Tr. at 111-12.)
No. 17AP-828 6
{¶ 19} At the hearing, Gardner identified appellant in the courtroom as the person
he saw with a gun at the pool hall on the night of the incident. Gardner stated that he was
within five to six feet of the shooter before the shooting occurred.
{¶ 20} John Grebb, a sergeant in the detective bureau of the Whitehall Division of
Police, testified that he was assigned to investigate Blakely's homicide. On January 15,
2015, Grebb produced the photo array that was shown to Gardner. Grebb testified Gardner
circled one photo on the array, which was appellant's photo. The photo in question was
taken in late 2013, making it one and one-half years old at the time it was shown to Gardner.
{¶ 21} Grebb testified he did not personally show the photo array to Gardner, but
instead employed a blind administrator. Grebb testified he did not use a folder system, but
stated that "the person that showed the photo array had not seen the suspect's photo at all.
They don't know anything about it." (July 15, 2015 Tr. at 130.) Grebb stated that "Gardner
did not give a description of the suspect to me. The lineup was prepared prior, you know,
it was a lineup that was prepared for use in the investigation." (July 15, 2015 Tr. at 133.)
Grebb testified he "was not present in the room or in line of sight or any other manner to
[Gardner] when he viewed [the photo array]." (July 15, 2015 Tr. at 135-36.)
{¶ 22} On July 30, 2015, the juvenile court filed a judgment entry finding there was
probable cause to believe appellant committed the alleged offense. In preparation for a
hearing to determine amenability to rehabilitation within the juvenile justice system, the
juvenile court ordered a social investigation and mental examination of appellant.
{¶ 23} On November 23, 2015, the juvenile court held an amenability hearing. On
December 1, 2015, the juvenile court filed an entry sustaining the state's January 22, 2015
motion to relinquish jurisdiction. On December 8, 2015, the juvenile court filed a judgment
entry ordering the relinquishment of jurisdiction over the matter and the transfer of the
matter to the trial court.
{¶ 24} On December 11, 2015, an indictment was filed in the trial court charging
appellant with 13 criminal counts: one count of aggravated murder, in violation of R.C.
2903.01, an unclassified felony; two counts of murder, in violation of R.C. 2903.02,
unclassified felonies; four counts of felonious assault, in violation of R.C. 2903.11, felonies
of the second degree; four counts of attempted murder, in violation of R.C. 2923.02 and
2903.02, felonies of the first degree; one count of carrying a concealed weapon, in violation
No. 17AP-828 7
of R.C. 2923.12, a felony of the fourth degree; and one count of having weapons while under
disability, in violation of R.C. 2923.13, a felony of the third degree. All counts, except for
the count of carrying a concealed weapon and the count of having weapons while under
disability, contained an attached three-year firearm specification.
{¶ 25} On July 14, 2017, the trial court held a plea hearing. The same day, the trial
court filed an entry reflecting that appellant entered a plea of guilty to two criminal counts:
voluntary manslaughter, in violation of R.C. 2903.03, a felony of the first degree; and
felonious assault, in violation of R.C. 2903.11, a felony of the second degree. Both counts
contained an attached three-year firearm specification.
{¶ 26} On October 19, 2017, the trial court held a sentencing hearing. On October 25,
2017, the trial court filed a judgment entry reflecting appellant's convictions, pursuant to a
plea of guilty, and imposing the following sentence: 10 years for the count of voluntary
manslaughter in addition to a mandatory, consecutive 3 years as to the firearm
specification; and 4 years for the count of felonious assault in addition to a mandatory,
consecutive 3 years as to the firearm specification. The court ordered both counts to run
consecutive to each other and consecutive to each of the firearm specifications for a total
period of incarceration of 20 years. The court also imposed a period of post-release control
of up to 5 years.
II. Assignments of Error
{¶ 27} Appellant appeals and assigns the following three assignments of error:
I. The Franklin County Juvenile Court violated [appellant's]
right to due process of law, when it based its probable cause
determination on a vague, uncertain, and unreliable
eyewitness identification, in violation of the Fifth and
Fourteenth Amendments to the United States Constitution;
and, Article I, Section 16 of the Ohio Constitution.
II. [Appellant] was deprived of his right to the effective
assistance of counsel, in violation of the Sixth and Fourteenth
Amendments to the United States Constitution; and, Article I,
Section 10 of the Ohio Constitution.
III. The Franklin County Juvenile Court violated [appellant's]
right to due process of law, because its probable cause
determination was not supported by sufficient, reliable, and
credible evidence, in violation of the Fifth and Fourteenth
No. 17AP-828 8
Amendments to the U.S. Constitution, and Article I, Section
16 of the Ohio Constitution.
{¶ 28} For ease of discussion, we consider appellant's assignments of error out of
order.
III. First and Third Assignments of Error—Probable Cause Determination
{¶ 29} In his first and third assignments of error, appellant asserts that the juvenile
court erred by finding probable cause existed in violation of the Fifth and Fourteenth
Amendments to the United States Constitution and Article I, Section 16 of the Ohio
Constitution. Specifically, appellant contends the trial court's probable cause
determination was erroneous because it was based on an unreliable eyewitness
identification and, therefore, was not supported by sufficient, reliable, and credible
evidence. The state responds appellant waived the right to challenge the juvenile court's
probable cause determination by pleading guilty in the trial court. Before proceeding to our
analysis of the question presented by appellant's first and third assignments of error, we
begin by outlining the relevant statutory and constitutional framework underlying the
process of transferring a juvenile to an adult common pleas court.
A. Applicable Law
1. Jurisdiction of Juvenile Courts
{¶ 30} Pursuant to Article IV, Section 4(B) of the Ohio Constitution, the subject-
matter jurisdiction of the courts of common pleas and the divisions of those courts is
defined by statute. State v. Wilson, 73 Ohio St.3d 40, 42 (1995). R.C. 2151.23 provides the
jurisdiction of juvenile courts, including the "exclusive jurisdiction over children alleged to
be delinquent for committing acts that would constitute a crime if committed by an adult."
In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, ¶ 11, citing R.C. 2151.23(A). The General
Assembly, however, enacted R.C. 2152.10 and 2151.12, which "creat[e] 'a narrow exception
to the general rule that juvenile courts have exclusive subject matter jurisdiction over any
case involving a child.' " State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, ¶ 2, quoting
Wilson at 43. R.C. 2151.10 and 2151.12, in conjunction with Juv.R. 30, provide for the
mandatory or discretionary "transfer [of] a case involving an alleged delinquent child to the
court that would have had jurisdiction of the offense if it had been committed by an adult"
in what is commonly referred to as a "bindover procedure." Wilson at 43.
No. 17AP-828 9
2. Bindover Procedure
{¶ 31} "When the state requests a discretionary bindover, the juvenile court is * * *
[required] to determine the age of the child and whether probable cause exists to believe
that the juvenile committed the act charged." In re M.P. at ¶ 12, citing R.C. 2152.10(B) and
2152.12(B)(1) and (2). The juvenile court must also order an "investigation into the child’s
social history, education, family situation, and any other factor bearing on whether the child
is amenable to juvenile rehabilitation." R.C. 2152.12(C). See Juv.R. 30(C). The court must
then hold a hearing, considering the factors listed in R.C. 2152.12(D) and (E), to determine
whether the child is " 'amenable to care or rehabilitation within the juvenile system' or
whether 'the safety of the community may require that the child be subject to adult
sanctions.' " In re M.P. at ¶ 12, quoting R.C. 2152.12(B)(3).
3. Probable Cause in Bindover Proceeding
{¶ 32} In order to establish probable cause at a bindover hearing, " '[t]he state must
provide credible evidence of every element of an offense * * * that raises more than a mere
suspicion of guilt, but need not provide evidence proving guilt beyond a reasonable doubt.' "
In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, ¶ 42, quoting State v. Iacona, 93 Ohio
St.3d 83, 93 (2001). See In re D.T.F., 10th Dist. No. 05AP-03, 2005-Ohio-5245, ¶ 12. In its
determination on the existence of probable cause, " 'the juvenile court must evaluate the
quality of the evidence presented by the state in support of probable cause as well as any
evidence presented by the respondent that attacks probable cause.' " (Emphasis sic.) In re
A.J.S. at ¶ 43, quoting Iacona at 93, citing Kent v. United States, 383 U.S. 541 (1966). "The
juvenile court has the duty to assess the credibility of the evidence and to determine
whether the state has presented credible evidence going to each element of the charged
offense, but it is not permitted to exceed the limited scope of the bindover hearing or to
assume the role of the fact-finder at trial." In re D.M., 140 Ohio St.3d 309, 2014-Ohio-
3628, ¶ 10, citing In re A.J.S. at ¶ 44.
{¶ 33} "Because the issue whether the state presented sufficient evidence to
demonstrate probable cause to believe that the juvenile committed the act charged is a
question of law, an appellate court applies a de novo review." In re M.P. at ¶ 13, citing In re
A.J.S. at ¶ 47, 51. See In re D.T.F. at ¶ 14.
No. 17AP-828 10
4. Due Process in Juvenile Bindover Proceedings
{¶ 34} "Due-process rights are applicable to juveniles through the Due Process
Clause of the Fourteenth Amendment to the United States Constitution and Article I,
Section 16 of the Ohio Constitution." Aalim at ¶ 23, citing In re C.S., 115 Ohio St.3d 267,
2007-Ohio-4919, ¶ 79, citing In re Gault, 387 U.S. 1, 41 (1967). The Supreme Court of Ohio
has stated that "in the context of a juvenile-court proceeding, the term 'due process'
' "expresses the requirement of 'fundamental fairness,' a requirement whose meaning can
be as opaque as its importance is lofty." ' " Id., quoting In re C.S. at ¶ 80, quoting Lassiter
v. Dept. of Social Servs. of Durham Cty., North Carolina, 452 U.S. 18, 24-25 (1981). Based
upon the circumstances of a case, "[a] court's task is to ascertain what process is due * * *
while being true to the core concept of due process in a juvenile case—to ensure orderliness
and fairness." In re C.S. at ¶ 81, citing McKeiver v. Pennsylvania, 403 U.S. 528, 541 (1971)
(plurality opinion).
{¶ 35} The Supreme Court of Ohio, echoing precedent set by the Supreme Court of
the United States, has previously examined the scope of due process protections in the
juvenile bindover process, stating that the transfer from juvenile court should not occur
" 'without ceremony—without hearing, without effective assistance of counsel, without a
statement of reasons.' " State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, ¶ 20, quoting
Kent at 554. A "bindover hearing is a 'critically important proceeding' and that the hearing
'must measure up to the essentials of due process and fair treatment.' " In re D.M. at ¶ 11,
quoting Kent at 562. See D.W. at ¶ 20 ("The safeguard of a hearing is contained in the
Revised Code and Rules of Juvenile Procedure, and it is grounded in due process and other
constitutional protections."); Aalim at ¶ 25.
{¶ 36} Having set forth the statutory and constitutional framework underlying the
bindover process, we examine precedent concerning waiver resulting from the entry of a
guilty plea.
B. Whether Appellant's Guilty Plea Waived Challenge to Probable Cause
{¶ 37} Generally, " ' if a defendant enters a guilty plea, such plea acts as a waiver of
an individual's right to raise most issues on appeal.' " State v. Armstrong, 10th Dist. No.
16AP-410, 2017-Ohio-8715, ¶ 8, quoting State v. Benman, 10th Dist. No. 03AP-1012, 2004-
Ohio-3935, ¶ 12. " '[A] guilty plea * * * renders irrelevant those constitutional violations
No. 17AP-828 11
not logically inconsistent with the valid establishment of factual guilt and which do not
stand in the way of conviction if factual guilt is validly established.' " State v. Fitzpatrick,
102 Ohio St.3d 321, 2004-Ohio-3167, ¶ 78, quoting Menna v. New York, 423 U.S. 61, 62
(1975), fn. 2. "A guilty plea nonetheless waives the right to assert ineffective assistance of
counsel unless the counsel's errors affected the knowing and voluntary nature of the plea."
State v. McMichael, 10th Dist. No. 11AP-1042, 2012-Ohio-3166, ¶ 14, citing State v. Hill,
10th Dist. No. 10AP-634, 2011-Ohio-2869, ¶ 15, citing State v. Spates, 64 Ohio St.3d 269,
272 (1992). However, "[t]he issue of a court's subject matter jurisdiction cannot be waived."
Wilson at 46. See Ross v. Common Pleas Court of Auglaize Cty., 30 Ohio St.2d 323, 323-
24 (1972), quoting Crockett v. Haskins, 372 F.2d 475, 476 (6th Cir.1966) ("A defendant who
enters a voluntary plea of guilty while represented by competent counsel waives all
nonjurisdictional defects in prior stages of the proceedings.").
{¶ 38} In Wilson, the Supreme Court of Ohio considered whether the general
division of a common pleas court had jurisdiction to convict a juvenile who had previously
not been subject to a bindover proceeding in a juvenile court. The court held that "absent
a proper bindover procedure * * * the juvenile court has the exclusive subject matter
jurisdiction over any case concerning a child who is alleged to be a delinquent" and that
such jurisdiction "cannot be waived." Wilson at 44, 46. Accordingly, the Supreme Court
concluded that because Wilson had not been subject to a proper bindover procedure, the
general division of the court of common pleas lacked jurisdiction over Wilson, rendering
the judgment of conviction void ab initio.
{¶ 39} Following Wilson, the Supreme Court of Ohio has found that a juvenile may
waive nonjurisdictional issues not raised during the bindover proceeding. In State v.
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, the Supreme Court found that a
juvenile forfeited challenges to the constitutionality of the statutes providing for mandatory
bindover procedures because he failed to object in either the juvenile court or the general
division of the common pleas court.
{¶ 40} In State v. Martin, __ Ohio St.3d __, 2018-Ohio-3226, the Supreme Court
considered whether the plain error standard of review applied when, in a bindover
proceeding, a juvenile did not object to the failure of the juvenile court to consider and apply
Ohio's "safe harbor" law under R.C. 2152.021. In that case, the state argued that "when a
No. 17AP-828 12
defendant enters a guilty plea in adult court, she [or he] can appeal only the juvenile court's
probable-cause and amenability findings and that she [or he] cannot appeal based on
alleged procedural defects that she [or he] did not raise in those proceedings." Id. at ¶ 16.
{¶ 41} While noting its holding in Wilson, the court observed that "Martin was not
deprived of R.C. 2152.12 bindover proceedings altogether, and she does not argue that the
court's amenability ruling was erroneous." Id. at ¶ 25. Because the safe harbor law's
"mandates are not jurisdictional requirements," the court found that "when a juvenile court
has failed to consider the applicability of [the safe harbor law] and no objection was raised
in the juvenile court, plain-error analysis applies." Id. at ¶ 27, citing State v. Morgan, 153
Ohio St.3d 196, 2017-Ohio-7565.
{¶ 42} Here, the state, relying on Quarterman, asserts that "not every error in a
bindover proceeding [is] 'jurisdictional.' " (State's Brief at 17.) The state contends that
appellant's "claim is not a jurisdictional error," but rather that the juvenile court
"committed a legal error by relying on insufficient evidence to find that probable cause
existed." (Emphasis omitted.) (State's Brief at 19, citing In re A.J.S at ¶ 51.) While we agree
with the state that nonjurisdictional defects are generally waived by entering a guilty plea,
we do not find such statement to be determinative of the question presented.
{¶ 43} Prior to ordering a discretionary bindover, a juvenile court must find "[t]here
is probable cause to believe that the child committed the act charged." R.C. 2152.12(B)(2).
We have previously stated that "[w]here a juvenile court purports to transfer a juvenile case
to adult court without having complied with the proper procedures in R.C. 2152.12, the
adult court proceeds in the absence of subject-matter jurisdiction, and any judgment
entered by the adult court is a nullity and void ab initio." State v. J.T.S., 10th Dist. No.
14AP-516, 2015-Ohio-1103, ¶ 11; State v. Brown, 10th Dist. No. 13AP-349, 2014-Ohio-314,
¶ 29, citing Wilson at 44. In J.T.S., a juvenile, who entered a plea of guilty after the transfer
of the case to the general division of the common pleas court, challenged the juvenile court's
acceptance of his stipulation to the existence of probable cause. We reviewed the claim and
found that the juvenile court did not err when it determined that the juvenile's stipulation
as to the existence of probable cause was a knowing, intelligent, and voluntary waiver of the
right to a probable cause hearing.
No. 17AP-828 13
{¶ 44} Here, unlike in J.T.S., the trial court entered its finding on the existence of
probable cause following a hearing. However, the jurisdictional requirement of a proper
bindover procedure is the same in both cases. Just as the jurisdictional requirements of
R.C. 2152.12 would not be met by a bindover proceeding in which the juvenile court
accepted a stipulation to the existence of probable cause without a knowing, intelligent, and
voluntary waiver of the right to a hearing, so too would the requirements not be met by a
bindover proceeding in which the juvenile court found the existence of probable cause
based on insufficient evidence. In re D.M. at ¶ 10, citing In re A.J.S. at ¶ 44 (stating that in
determining the existence of probable cause, it is the duty of the juvenile court to "assess
the credibility of the evidence and to determine whether the state has presented credible
evidence going to each element of the charged offense"). In either case, because a proper
bindover procedure, which includes the determination of the existence of probable cause,
is necessary to transfer jurisdiction, it cannot be waived. Wilson at 46.
{¶ 45} Consistent with our reasoning, other Ohio appellate courts have reviewed
challenges to the probable cause determination of a juvenile court from juveniles who
entered guilty pleas in the general division of a common pleas court in assessing whether
the jurisdictional requirements of the bindover process were met. State v. Kitchen, 5th
Dist. No. 02CA056, 2003-Ohio-5017, ¶ 80 (holding, after guilty plea in adult court, that
juvenile court did not err in "finding of probable cause to believe appellant committed both
offenses alleged" and therefore finding juvenile "court's relinquishment of jurisdiction
proper pursuant to R.C. 2152.12"); State v. Mays, 8th Dist. No. 100265, 2014-Ohio-3815,
¶ 16-29; State v. Legg, 4th Dist. No. 14CA23, 2016-Ohio-801, ¶ 31 (considering "claim that
the state did not present sufficient evidence to establish probable cause to believe that he
committed the acts charged in the delinquency complaints" despite guilty plea). Therefore,
because a finding of probable cause based on insufficient evidence contravenes 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 trial court's finding of probable
cause was based on sufficient evidence.
C. Probable Cause Determination
{¶ 46} Appellant asserts that the juvenile court erred in considering evidence related
to his identification because it is vague, uncertain, and unreliable. Furthermore, appellant
No. 17AP-828 14
contends that because of the flaws in the identification, the probable cause determination
is not supported by sufficient, reliable, and credible evidence.
1. Whether Identification Was Unnecessarily Suggestive and Unreliable
{¶ 47} " 'The rationale for excluding a tainted pretrial identification is to protect the
defendant from misconduct by the state.' " State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-
5524, ¶ 19, quoting State v. Brown, 38 Ohio St.3d 305, 310 (1988). When a witness has
been confronted with a suspect prior to trial, a court must suppress witness's identification
of the suspect " ' "if the confrontation was unnecessarily suggestive of the suspect's guilt
and the identification was unreliable under all the circumstances." ' " (Emphasis sic.)
Gross at ¶ 19, quoting State v. Murphy, 91 Ohio St.3d 516, 534 (2001), quoting State v.
Waddy, 63 Ohio St.3d 424, 438 (1992).
{¶ 48} The Supreme Court of the United States has characterized confrontations
unnecessarily suggestive of the suspect's guilt as those confrontations "infected by
improper police influence" resulting in a "corrupting effect" on the identification process.
Perry v. New Hampshire, 565 U.S. 228, 232 (2012). "[D]ue process concerns arise only
when law enforcement officers use an identification procedure that is both suggestive and
unnecessary." Id. at 238-39, citing Manson v. Brathwaite, 432 U.S. 98, 107, 109 (1977). 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. Broom, 40 Ohio St.3d 277, 284 (1988), citing Manson at 114. See
Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
{¶ 49} R.C. 2933.83(B) " 'requires any law enforcement agency or criminal justice
entity that conducts live lineups and photo lineups to adopt specific procedures for
conducting the lineups.' " State v. Montgomery, 10th Dist. No. 13AP-512, 2014-Ohio-4354,
¶ 40, fn. 3, quoting State v. Ruff, 1st Dist. No. C-110250, 2012-Ohio-1910, ¶ 5. The purpose
of R.C. 2933.83 is to "prevent the use of 'unnecessarily suggestive procedures.' " Id.,quoting State v. Howard, 8th Dist. No. 100094, 2014-Ohio-2176, ¶ 18.
No. 17AP-828 15
{¶ 50} R.C. 2933.83(B) provides that the procedures used in conducting a photo
lineup must at a minimum meet the following requirements:
(1) Unless impracticable, a blind or blinded administrator shall
conduct the live lineup or photo lineup.
(2) When it is impracticable for a blind administrator to
conduct the live lineup or photo lineup, the administrator shall
state in writing the reason for that impracticability.
(3) When it is impracticable for either a blind or blinded
administrator to conduct the live lineup or photo lineup, the
administrator shall state in writing the reason for that
impracticability.
(4) The administrator conducting the lineup shall make a
written record that includes all of the following information:
(a) All identification and nonidentification results obtained
during the lineup, signed by the eyewitnesses, including the
eyewitnesses’ confidence statements made immediately at the
time of the identification;
(b) The names of all persons present at the lineup;
(c) The date and time of the lineup;
(d) Any eyewitness identification of one or more fillers in the
lineup;
(e) The names of the lineup members and other relevant
identifying information, and the sources of all photographs or
persons used in the lineup.
(5) If a blind administrator is conducting the live lineup or the
photo lineup, the administrator shall inform the eyewitness
that the suspect may or may not be in the lineup and that the
administrator does not know who the suspect is.
Under R.C. 2933.83(A)(2), a "blind administrator" is a person conducting a photo lineup
who "does not know the identity of the suspect" and "includes an administrator who
conducts a photo lineup through the use of a folder system or substantially similar system."
Under R.C. 2933.83(A)(3), a "blinded administrator" is a person conducting a photo lineup
who "may know who the suspect is, but does not know which lineup member is being
viewed by the eyewitness" and "includes an administrator who conducts a photo lineup
through the use of a folder system or substantially similar system." R.C. 2933.83(A)(6)
defines the "folder system" for purposes of R.C. 2933.83, requiring that the system satisfy
a number of conditions including that the "investigating officer uses one 'suspect
No. 17AP-828 16
photograph' that resembles the description of the suspected perpetrator of the offense
provided by the eyewitness." R.C. 2933.83(A)(6)(a).
{¶ 51} R.C. 2933.83(C) governs procedures relating to a failure to comply with the
provisions of R.C. 2933.83(B), including procedures related to a motion to suppress, a
claim of eyewitness misidentification, and jury instructions at trial. 1 Pursuant to R.C.
2933.83(C)(1), "[e]vidence of a failure to comply with any of the provisions of this section
or with any procedure for conducting lineups that has been adopted by a law enforcement
agency or criminal justice agency pursuant to division (B) of this section and that conforms
to any provision of divisions (B)(1) to (5) of this section shall be considered by trial courts
in adjudicating motions to suppress eyewitness identification resulting from or related to
the lineup."
{¶ 52} Although R.C. 2933.83(C)(1) requires a court to consider evidence of a failure
to comply with the requirements detailed in R.C. 2933.83(B), it does not mandate
suppression for such a failure. State v. Young, 10th Dist. No. 15AP-1144, 2017-Ohio-9028,
¶ 35. The provisions of R.C. 2933.83 do " 'not provide an independent basis upon which to
suppress evidence, and a trial court errs in solely relying on the statute in suppressing an
identification.' " State v. Wells, 8th Dist. No. 98388, 2013-Ohio-3722, ¶ 84, quoting State
v. Sails, 2d Dist. No. 24733, 2012-Ohio-4453, ¶ 30. See State v. Matthews, 12th Dist. No.
CA2012-09-175, 2013-Ohio-3482, ¶ 28; State v. Jackson, 4th Dist. No. 11CA20, 2012-Ohio-
6276, ¶ 25 (stating that the "failure to comply with R.C. 2933.83 does not, by itself, warrant
the suppression of evidence"); State v. Parks, 7th Dist. No. 11 CO 20, 2012-Ohio-3010, ¶ 17
(finding that R.C. 2933.83 "does not provide for automatic exclusion of a line-up conducted
in a manner different than that provided thereunder"). " 'The overriding analysis remains
whether the procedure was "impermissibly suggestive." ' " Wells at ¶ 84, quoting State v.
Henry, 6th Dist. No. L-11-1157, 2012-Ohio-5552, ¶ 46, quoting Biggers at 197.
{¶ 53} After the conclusion of testimony at the probable cause hearing, appellant's
counsel made the following arguments to the juvenile court:
Quite frankly, Your Honor, I've not actually seen a weaker case
with regard to probable cause in my life. This case clearly just
comes down to ID whether or not it was [appellant] who did
1We note that the provisions of R.C. 2933.83(C), which govern procedures relating to a failure to comply
with the provisions of R.C. 2933.83(B), do not include probable cause hearings in a bindover proceeding.
No. 17AP-828 17
this alleged or these alleged acts. The * * * witness himself said
that he couldn't remember something; his memory wasn't as
good as six or seven months later, which is today as it was
immediately after this incident happened. And immediately
after the -- this incident, happened he said he was only 50
percent sure that this individual was [appellant]. That's simply
not enough for probable cause. But certainly, when somebody
comes in [whose] best friend had just been killed * * * there's
only one person to identify. I think the Court needs to look back
to say okay, what was identification back then when this
incident happened and clearly there's simply not enough of
probable cause. Along those lines there is simply Your Honor,
no physical evidence either whatsoever. They can't attribute a
gun to my client. They can't attribute the bullets to my client.
They can't attribute the outfit he was wearing to my client.
There's absolutely zero physical evidence and clearly the case
just relies on the testimony of Mr. Gardner, who again at the
time said he was only 50 percent sure that this is the person
after he had looked at the video, after he had seen the news
coverage on -- on TV at the -- when this happened. So I just
clearly think, Your Honor, this is a case of -- there's just simply
not probable cause to believe that [appellant] did this.
(July 15, 2015 Tr. at 141-42.)
{¶ 54} Following arguments by counsel, the juvenile court made the following
statement:
[P]robable cause is a way lower standard [than] beyond a
reasonable doubt. And I agree there's nothing on there that you
would look at and know. So we're basing the entire case on
[Gardner's] identification, which isn't particularly strong, but it
isn't. All I have to get is do I have enough to say that someone
thinks this is the man that did the shooting at this point and get
me to probable cause. But it certainly isn't beyond a reasonable
doubt standards, so I -- I agree with some of the things you've
said and some of the issues I think you with this lineup. [sic]
But you know, I just have to get to did someone ID this man.
Whether it's right or wrong I guess will be heard potentially in
another -- in another hearing, but I will certainly entertain a
cause for release for potentially after I tell you what I'm gonna
rule because it is a very low, low threshold that I have to get to
and I have a person saying this is the person that was the
shooter. Obviously, there's a whole lot more going on in this
case that I don't, you know, know about and height
comparisons and everything else. But right now, I have
No. 17AP-828 18
someone saying this is the person and I identified him here, so
I think I get to the probable cause level. * * * So for what I have,
you know, I think I have to find that [appellant] at least I have,
you know, testimony that I get to the point of there is probable
cause to believe that he committed four counts of felonious
assault and the charge of murder * * * and that I'll find that a
probable cause exist to each element of the offense.
(July 15, 2015 Tr. at 144-45.)
a. Out-of-Court Identification
{¶ 55} Appellant asserts a number of arguments to support the claim that the
procedure employed in administering the photo array was unnecessarily suggestive.
Appellant asserts that the procedure used in administering the photo array failed to comply
with R.C. 2933.83 because (1) it was not based on Gardner's description of the suspect; (2)
the procedure did not employ the folder system; (3) the procedure did not utilize "double
blinded administration"; and (4) there was no evidence the procedure was recorded.
Appellant also points to testimony that Gardner viewed the surveillance video of the
incident, although the testimony does not conclusively establish whether he viewed the
video before or after being shown the photo array.
{¶ 56} First, appellant asserts the photo array failed to comply with R.C. 2933.83
because it was not based on Gardner's description of the suspect. Although Detective Grebb
admitted the photo array was not based on a description from Gardner, we have previously
found that "[a] photo array which is ' "created by police prior to the victim['s] giving a
description of the suspect, * * * is not unreasonably suggestive, as long as the array contains
individuals with features similar to the suspect." ' " State v. Monford, 190 Ohio App.3d 35,
2010-Ohio-4732, ¶ 49 (10th Dist.), quoting State v. Hickman, 5th Dist. No. 09-CA-15,
2009-Ohio-4911, ¶ 10, quoting State v. Jones, 8th Dist. No. 85025, 2005-Ohio-2620, ¶ 15.
Appellant does not contend that the other individuals in the photo array did not have
sufficiently similar features. The similarity between the photos is supported by Gardner's
testimony that "a lot of the people in the picture look alike." (July 15, 2015 Tr. at 110.)
{¶ 57} Second, appellant contends the procedure was rendered unnecessarily
suggestive as a result of the failure to employ the folder system outlined in R.C. 2933.83
and because it did not employ "double blinded administration." (Appellant's Brief at 18.)
It is undisputed that Grebb did not utilize the folder system, but rather prepared a single
No. 17AP-828 19
sheet containing all six photos, in two rows of three. We have previously held that the failure
to present the photo array using "sequential methods does not make the identification
procedure unduly suggestive." Monford at ¶ 51. See State v. Humberto, 196 Ohio App.3d
230, 2011-Ohio-3080, ¶ 49 (10th Dist.).
{¶ 58} R.C. 2933.83 does not define or otherwise mention "double blinded
administration." However, we have stated "[w]hen a police agency uses the double blind
method, a photo array is shown by a neutral officer without knowledge of who the targeted
suspect is so that the officer cannot subconsciously or unintentionally communicate to the
witness which photo * * * should [be] select[ed]." Monford at ¶ 51. Here, Grebb testified
that the person who showed the photo array had not seen the suspect's photo at all. "They
don't know anything about it." (July 15, 2015 Tr. at 130.) Furthermore, Grebb testified he
"was not present in the room or in line of sight or any other manner to [Gardner] when he
viewed [the photo array]." (July 15, 2015 Tr. at 135-36.) Finally, appellant does not contend
the administrator of the test influenced him or communicated to him, intentionally or
unintentionally, which photo he should select. See id. at ¶ 52.
{¶ 59} Third, appellant asserts the procedure violated R.C. 2933.83 because it was
not recorded. The record from the probable cause hearing does not reflect whether or not
the procedure was recorded. Grebb and Gardner testified and were subject to cross-
examination regarding their recollection of the procedure. As a result, we cannot find this
serves as a basis for the procedure being unnecessarily suggestive.
{¶ 60} Fourth, appellant contends the procedure was unnecessarily suggestive
because Gardner was shown the surveillance video at some point following the incident.
Because the record is unclear as to whether Gardner viewed the video before or after the
administration of the photo array, we cannot find, under the facts of this case, that his
viewing of the video was unnecessarily suggestive.
{¶ 61} Upon review, we find the procedure employed in the administration of the
photo array did not strictly comply with the requirements of R.C. 2933.83. However, "[t]he
failure to strictly comply with R.C. 2933.83 does not render the pretrial identification
procedure per se impermissibly suggestive," but "[r]ather, all facts and circumstances must
be considered." Young at ¶ 35. Thus, considering the totality of the facts and circumstances
in this case, we cannot agree that the police conduct surrounding Gardner's out-of-
No. 17AP-828 20
court identification was unnecessarily suggestive. 2 Because the photo array was not
unnecessarily suggestive, we need not address the reliability of the identification under the
totality of the circumstances. Monford at ¶ 41; Gross at ¶ 19; State v. Jackson, 4th Dist. No.
11CA20, 2012-Ohio-6276, ¶ 28, citing State v. Lewis, 2d Dist. No. 24271, 2011-Ohio-5967,
¶ 30.
b. In-Court Identification
{¶ 62} In his reply brief, appellant for the first time asserts the identification at the
probable cause hearing was admitted in error because it was not based on the witness's
reliable, independent recollection. Pursuant to App.R. 16(C), an appellant may file a brief
"in reply to the brief of the appellee." "The purpose of a reply brief is to afford the appellant
an opportunity to respond to the brief of the appellee, not to raise a new argument for the
first time." Cullinan v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 15AP-390, 2016-
Ohio-1083, ¶ 19. See State v. Mitchell, 10th Dist. No. 10AP-756, 2011-Ohio-3818, ¶ 47 ("A
reply brief affords an appellant an opportunity to respond to an appellee's brief, * * * and it
is improper to use it to raise a new issue."); State ex. rel. Bryant v. Meyer Co., 10th Dist.
No. 07AP-731, 2008-Ohio-3292, ¶ 5; State v. Newcomb, 10th Dist. No. 04AP-1223, 2005-
Ohio-4570, ¶ 29. We "generally will not consider a new issue presented for the first time in
a reply brief." Hunter v. Shield, 10th Dist. No. 17AP-751, 2018-Ohio-2371, ¶ 23, quoting
Quarterman at ¶ 18. See Cullinan at ¶ 19, citing State v. Shedwick, 10th Dist. No. 11AP-
709, 2012-Ohio-2270, ¶ 50. Thus, because appellant failed to raise the issue of the
reliability of the in-court identification in his merit brief, we need not address it.
{¶ 63} Nevertheless, even if we were to consider the arguments appellant raises in
his reply brief related to Gardner's identification of appellant at the probable cause hearing,
we would find them to be meritless. In support of his contention that the identification at
the probable cause hearing was in error, appellant asserts the juvenile court erred because
it failed to ascertain whether Gardner's identification of appellant at the hearing was based
on "independent recollection of the suspect or on his memory of the photo array alone."
2 We note that the provisions of R.C. 2933.83 apply to "any law enforcement agency or criminal justice entity
in this state that conducts live lineups or photo lineups" and create "minimum" requirements for procedures
conducting lineups. R.C. 2933.83(B). We caution that under different facts, a failure to comply with the
statutory requirements under the totality of the circumstances may result in suppression of eyewitness
identification.
No. 17AP-828 21
(Emphasis omitted.) (Appellant's Reply Brief at 8.) However, none of the cases cited by
appellant require a trial court to ascertain the reliability of an in-court identification where
there has been no prior unlawful or unnecessarily suggestive police conduct. See United
States v. Wade, 388 U.S. 218 (1967) (vacating conviction and remanding for hearing on
whether identification resulted from independent recollection where defendant's right to
counsel at postindictment lineup was violated); United States v. Crews, 445 U.S. 463, 473
(1980) (finding that "victim's capacity to identify her assailant in court neither resulted
from nor was biased by the unlawful police conduct committed long after she had developed
that capacity"); State v. Jackson, 26 Ohio St.2d 74, 77 (1971) ("In determining whether the
in-court identification was a result of an improper line-up or came from some independent
recollection and observation of the accused by the witness, * * * the totality of the
circumstances surrounding the identification must be considered."); State v. Hogan, 10th
Dist. No. 09AP-1182, 2010-Ohio-3385, ¶ 25 (remanding for the trial court to consider
whether identification was based on reliable, independent recollection where the procedure
utilized was "impermissibly suggestive").
{¶ 64} We have previously held that, absent improper conduct prior to an in-court
identification, a witness's "inability or unwillingness to identify a defendant in a pre-trial
setting does not necessarily discredit an in-court identification." State v. Ndiaye, 10th Dist.
No. 13AP-964, 2014-Ohio-3206, ¶ 9. See State v. Dennis, 10th Dist. No. 05AP-1290, 2006-
Ohio-5777, ¶ 12 (finding defendant's conviction was not against the manifest weight of the
evidence where witnesses who "initially did not identify defendant as the assailant from a
six-photo array" identified the defendant in court); State v. Johnson, 163 Ohio App.3d 132,
2005-Ohio-4243, ¶ 57 (10th Dist.). In Johnson, we found the "inability or unwillingness to
make an identification based on the black-and-white photo arrays did not discredit [the
witness's] in-court identification of defendant at the bindover hearing" where "[s]uggestive,
out-of-court procedures, which could have possibly invalidated the in-court identification,
[were] absent." Johnson at ¶ 56-57. We noted the witness "made her identification under
oath, in court, and presumably was subject to cross examination," which we found could be
"used 'to test [an] identification before it harden[s].' " Id. at ¶ 56, quoting Moore v. Illinois,
434 U.S. 220, 230(1977), fn. 5. Under the facts and circumstances of this case, having found
the photo array was not unnecessarily suggestive and considering that Gardner was subject
No. 17AP-828 22
to cross-examination at the probable cause hearing, we conclude the juvenile court did not
err in considering Gardner's in-court identification of appellant in making its
determination that probable cause existed. Perry at 233 (holding that "[w]hen no improper
law enforcement activity is involved * * * it suffices to test reliability through the rights and
opportunities generally designed for that purpose, notably, the presence of counsel at
postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury
instructions on both the fallibility of eyewitness identification and the requirement that
guilt be proved beyond a reasonable doubt").
2. Whether Evidence Supported Probable Cause
{¶ 65} In support of his contention that the juvenile court erred in finding the
existence of probable cause, appellant reiterates his claims regarding the unreliability of
Gardner's identification combined with the lack of other evidence connecting appellant to
the incident.
{¶ 66} At trial, " ' "identity is an element that must be proven by the state beyond a
reasonable doubt," ' " whereas the " ' "credibility of witnesses and their degree of certainty
in identification are matters affecting the weight of the evidence." ' " State v. Guy, 10th
Dist. No. 17AP-281, 2018-Ohio-4835, ¶ 20, quoting State v. Tucker, 10th Dist. No. 15AP-
434, 2016-Ohio-1033, ¶ 13, quoting State v. Reed, 10th Dist. No. 08AP-20, 2008-Ohio-
6082, ¶ 48. See State v. Toney, 7th Dist. No. 14 MA 0083, 2016-Ohio-3296, ¶ 27 ("Identity
is an element of both felonious assault and murder."). For purposes of finding probable
cause, however, 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.
In re A.J.S. at ¶ 42.
{¶ 67} " 'A witness need not be free from doubt when identifying the perpetrator of
a crime.' " Tucker at ¶ 13, quoting State v. Cameron, 10th Dist. No. 10AP-240, 2010-Ohio-
6042, ¶ 31. " ' "Juries are not so susceptible that they cannot measure intelligently the
weight of identification testimony that has some questionable feature." ' " Tucker at ¶ 13,
quoting State v. Mickens, 10th Dist. No. 08AP-626, 2009-Ohio-1973, ¶ 18, quoting State v.
Coleman, 10th Dist. No. 99AP-1387 (Nov. 21, 2000), citing Manson at 116.
{¶ 68} Here, Gardner admitted he had been drinking on the night of the incident.
He stated he was about five or six feet away from the person he saw with the gun before the
No. 17AP-828 23
shooting started, and that person was the same one whom he saw shooting at him as he ran
away. Although he was only "50 percent" certain regarding the identity of the shooter based
on the photo array, he identified appellant as the shooter at the probable cause hearing.
Gardner was subject to cross-examination regarding his observations on the night of the
shooting and his subsequent identification of the shooter, both through the photo array and
the in-court identification. State v. Powell, 10th Dist. No. 17AP-808, 2018-Ohio-3944, ¶ 15
(stating that the finder of fact is "in the best position to weigh the credibility of testimony
by assessing the demeanor of witnesses and the manner in which they testify, their
connection or relationship with the parties, and their interest, if any, in the outcome").
Based on the totality of evidence at the probable cause hearing, we find sufficient, credible
evidence supported a finding of probable cause. Accordingly, we overrule appellant's first
and third assignments of error.
IV. Second Assignment of Error—Ineffective Assistance of Counsel
{¶ 69} In his second assignment of error, appellant asserts he received ineffective
assistance of counsel because counsel: (1) failed to present expert eyewitness-identification
testimony; (2) failed to make a motion to suppress Gardner's identification; and (3) failed
to raise or otherwise challenge the reliability of Gardner's identification.
{¶ 70} We apply a two-part test to evaluate claims of ineffective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio
St.3d 136, 141-42 (1989). "First, the defendant must show that counsel's performance was
deficient. * * * Second, the defendant must show that the deficient performance prejudiced
the defense." Strickland at 687. "To show that a defendant has been prejudiced by
counsel's deficient performance, 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 paragraph three of the syllabus. "Judicial scrutiny of counsel's
performance must be highly deferential [and] [b]ecause of the difficulties inherent in
making the evaluation, a court must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance." Strickland at 689;
Bradley at 141. Finally, we have previously noted outside of the bindover context that a
guilty plea "waives the right to assert ineffective assistance of counsel unless the counsel's
errors affected the knowing and voluntary nature of the plea." McMichael at ¶ 14, citing
No. 17AP-828 24
Hill at ¶ 15, citing Spates at 272. See State v. Caballero, 10th Dist. No. 15AP-1132, 2016-
Ohio-5496, ¶ 30.3
{¶ 71} First, appellant's counsel was not deficient for failing to call an expert witness
to testify about the reliability of eyewitness testimony. Appellant's counsel extensively
cross-examined Grebb and Gardner regarding the identification. It was reasonable trial
strategy for appellant's counsel to rely on cross-examination without calling an expert
witness. State v. Nicholas, 66 Ohio St.3d 431, 436 (1993) ("the failure to call an expert and
instead rely on cross-examination does not constitute ineffective assistance of counsel").
{¶ 72} Second, appellant's counsel was not ineffective for failing to file a motion to
suppress Gardner's identification or for allegedly failing to argue the reliability of the
identification. As previously noted, appellant's counsel's strategy at the probable cause
hearing centered on attacking the identification of appellant. For the reasons detailed in
our resolution of appellant's first and third assignments of error, appellant cannot show a
reasonable probability that the outcome of the proceeding would have been different had
counsel filed a motion to suppress or argue the reliability of the identification. Accordingly,
we overrule appellant's second assignment of error.
V. Conclusion
{¶ 73} Having overruled appellant's three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and NELSON, JJ., concur.
3We note the state does not contest whether appellant's guilty plea waived his right to claim ineffective
assistance of counsel. As this issue was not raised, it is not necessary to decide the issue and we, therefore,
consider appellant's claim. See Legg at ¶ 61.