In re M.E. , 2015 Ohio 3663 ( 2015 )

[Cite as In re M.E., 2015-Ohio-3663.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: M.E. : APPEAL NO. C-140586
TRIAL NO. 14-3056
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 11, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Appellee State of Ohio,
The Office of the Ohio Public Defender and Brooke M. Burns, Assitant State Public
Defender, for Appellant M.E.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal from an adjudication of delinquency based upon an
armed robbery. The juvenile, M.E., argues that his adjudication was against the
manifest weight of the evidence. He also argues that his trial counsel was ineffective
because he did not file a motion to suppress statements that he made to police after
his arrest. We affirm the trial court’s judgment.
I. Background
{¶2} According to his trial testimony, Travis Jordan was walking in the
Walnut Hills neighborhood of Cincinnati when an armed individual stepped in front of
him and demanded that he “give [him] everything.” He complied, handing the robber
his cell phone and two $50 bills. He ran to a nearby Kroger store and told a police officer
working at the store what had happened. He described the perpetrator as a black male
in his 20s, 5’9”, approximately 155 pounds, with thin facial hair, and wearing a black
hoodie and jeans. A patrol officer immediately took Mr. Jordan back to the scene. Just
around the corner, officers had stopped M.E., who was wearing a black hoodie and
jeans. Mr. Jordan identified M.E. as the robber approximately 11 minutes after the
crime.
{¶3} Based on Mr. Jordan’s identification, the police arrested M.E., who did
not have a gun, $50 bills, or a cell phone. At the police station, officers interviewed M.E.
for a little more than an hour. At first, M.E. denied the robbery, but he eventually fessed
up and told the officers he had given the gun, money, and cell phone to a third person
after the robbery.
{¶4} The case was tried to a magistrate. M.E. was adjudged delinquent of
aggravated robbery with firearm specifications. The court committed M.E. to the
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OHIO FIRST DISTRICT COURT OF APPEALS
Department of Youth Services for 12 months on the aggravated robbery and an
additional 12 months on the specifications, or until age 21.
II. Ineffective Assistance of Counsel
{¶5} We take up first M.E.’s second assignment of error. M.E. argues that his
trial counsel provided ineffective assistance of counsel when he failed to file a motion to
suppress. He claims his statements to the police were coerced, and that he did not
knowingly, intelligently, and voluntarily waive his right against self-incrimination.
{¶6} To succeed on his ineffective-assistance claim, M.E. must establish that
trial counsel was deficient, and that, absent his counsel’s errors, the result of the
proceedings would have been different. See Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also State v. Pickens, 141 Ohio St.3d
462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 199.
{¶7} Failure to file a motion to suppress does not make trial counsel per se
ineffective. State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 126.
Such failure is ineffective assistance of counsel only when the record establishes that the
motion would have been granted. State v. Riley, 7th Dist. Mahoning No. 13MA180,
2015-Ohio-94, ¶ 17. Here, the record does not demonstrate that M.E.’s motion to
suppress would have been granted. In fact, it suggests the opposite.
{¶8} Both determinations of whether a juvenile has knowingly, intelligently,
and voluntarily waived his Miranda rights and whether his confession was voluntary are
evaluated under a totality-of-the-circumstances test. State v. Leonard, 104 Ohio St.3d
54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 32. In this inquiry, courts consider “the age,
mentality, and prior criminal experience of the accused; the length, intensity, and
frequency of interrogation; the existence of physical deprivation or mistreatment; and
the existence of threat or inducement.” In re Watson, 47 Ohio St.3d 86, 548 N.E.2d 2103
OHIO FIRST DISTRICT COURT OF APPEALS
(1989), paragraph one of the syllabus; State v. Washington, 1st Dist. Hamilton No. C-
130213, 2014-Ohio-4178, ¶ 31. The state bears the burden of showing by a
preponderance of the evidence that the defendant voluntarily waived his right to remain
silent. Washington at ¶ 29.
{¶9} M.E. asserts that the Ohio Supreme Court has declared that a written
waiver alone is insufficient and that the court must consider the form used and the
youth’s literacy level. See In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d
1177, ¶ 109. In C.S., the court was referring specifically to a youth’s waiver of the right to
trial counsel, indicating such waiver must be made in “open court, recorded, and in
writing.” Id. But here, the court did not simply rely on the fact that M.E. had signed a
waiver. M.E. testified that he understood how serious the charges were and that he had
understood his rights when he signed the Miranda waiver form. Detective Stephen
Bender, a 14-year veteran who participated in the interview, testified to his observations
of M.E. Detective Bender explained that M.E.’s behavior and manner led him to believe
M.E. understood and waived his rights. He further observed that M.E. understood the
reason he was there and the seriousness of the allegations.
{¶10} M.E. relies on In re T.H., 10th Dist. Franklin No. 12AP-612, 2013-Ohio-
609, ¶ 16-17, to argue that his statements should have been suppressed because he did
not discuss waiving his rights with counsel or his mother. In that case, a 16-year-old had
been placed in police custody and given a printed form waiving his rights. Id. at ¶ 16.
The youth refused to sign the form saying he did not have anything to say. Applying the
totality-of-the-circumstances test, the juvenile court found that his confession was not
voluntary. Id. The appellate court upheld the trial court’s determination, noting that
while “a juvenile can give an incriminating statement without consulting a parent or
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OHIO FIRST DISTRICT COURT OF APPEALS
attorney, the access to a trusted adult or attorney is a factor which can be considered in
assessing voluntariness.” Id. at ¶ 17.
{¶11} The Ohio Supreme Court has explicitly declined to adopt a test that
required a parent or attorney to be present. See In re Watson, 47 Ohio St.3d at 89-90,
548 N.E.2d 210. Moreover, the facts in this case are substantially different than those in
T.H. M.E. never told the officers he did not want to talk. In fact, he willingly signed the
form and testified he had understood the form when he signed it. M.E.’s interview lasted
little more than an hour, and there is nothing in the record to indicate he had any mental
deficiencies or did not want to speak with the officers. He indicated in the interview and
again on the stand that he understood his rights. The magistrate specifically evaluated
M.E.’s interview and found that M.E. “clearly waived his rights during the interview and
voluntarily spoke with the officers.” The magistrate noted that M.E. “testified at trial that
he understood his rights and wanted to speak with them.”
{¶12} Based on a review of the totality of the circumstances, M.E. knowingly,
intelligently, and voluntarily waived his Miranda rights and his statements were not
coerced. Because M.E. failed to show that the motion to suppress would have been
granted, his claim of ineffective assistance fails. The assignment of error is overruled.
III. Manifest Weight
{¶13} In his first assignment of error, M.E. maintains that his adjudication
was against the manifest weight of the evidence. In support of this assignment, M.E.
points to the fact that the stolen items were not found on him at the time of his arrest.
He also contends that the description initially given by Mr. Jordan did not match his
appearance and that his own incriminating statements were unreliable because they
were the result of police coercion.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} To reverse a conviction on the manifest weight of the evidence, an
appellate court must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and conclude that, in resolving
the conflicts in the evidence, the trier of fact clearly lost its way and created a
manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997).
{¶15} M.E. was stopped by police in the vicinity of the crime within minutes
and wearing the same clothes Mr. Jordan had described. Mr. Jordan positively
identified M.E. as the perpetrator who had robbed him at gunpoint. M.E. admitted to
police that the gun he used was a gun he had stolen two years prior. He also
described giving the gun, money, and cell phone to a third person after the robbery.
{¶16} The evidence against M.E. was overwhelming. The weight to be given
to this evidence and the credibility of witnesses was primarily a question for the trier of
fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). It is true that M.E. was
younger and thinner than Mr. Jordan had described him, but this discrepancy, when
considered in light of the evidence against M.E., hardly suggests the jury lost its way.
Nor do we think it matters much that the stolen items were not recovered—M.E.
admitted that he had given them to a third person. And finally, for the reasons we
previously noted, we are not persuaded that M.E.’s own admissions should be ignored
because they were the result of police coercion.
{¶17} After reviewing the record, it is not clear that the trial court lost its
way and created a manifest miscarriage of justice such that M.E.’s adjudication must
be reversed. M.E.’s first assignment of error is overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
V. Conclusion
{¶18} M.E.’s adjudication was not against the manifest weight of the evidence
and his trial counsel was not ineffective for failing to file a motion to suppress. M.E.’s
assignments of error are overruled, and the judgment of the trial court is affirmed.
Judgment affirmed.
H ENDON , P.J., and F ISCHER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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