In re M.D. , 2023 Ohio 845 ( 2023 )

[Cite as In re M.D., 2023-Ohio-845.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: M.D. : APPEAL NOS. C-220052
C-220053
: C-220054
C-220055
: C-220056
TRIAL NOS. 20-999-z
: 20-1000-z
20-1001-z
: 20-1002-z
20-1007-z
:
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgments Appealed From Are: Affirmed.
Date of Judgment Entry on Appeal: March 17, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Ron Springman,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} In these consolidated appeals, defendant-appellant M.D. challenges his
five delinquency adjudications. For the following reasons, we affirm his adjudications.
I. Facts and Procedure
{¶2} Over the course of two weeks in February 2020, two food delivery
drivers were robbed at gunpoint in the parking lot of an apartment complex located at
3221 Queen City Avenue in Cincinnati, Ohio. When a third order was placed requesting
delivery to a neighboring apartment complex, police surveilled the parking lot and
arrested defendant-appellant M.D. That night, two officers interrogated M.D. over the
course of four hours. While M.D. was advised of his rights in accordance with Miranda
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the officers did not
respond to M.D.’s request for an attorney during the interrogation.
{¶3} The state charged M.D. with acts that, if committed by an adult, would
constitute three counts of aggravated robbery in violation of R.C. 2911.01, one count
of obstructing official business in violation of R.C. 2921.31, and one count of tampering
with evidence in violation of R.C. 2921.12(A). The aggravated-robbery and tampering-
with-evidence charges carried firearm-facilitation specifications. The state
unsuccessfully moved for the juvenile court to relinquish its jurisdiction and transfer
the case to the adult court. The juvenile court denied the state’s request, finding M.D.
amenable to care or rehabilitation within the juvenile system. In December 2020,
M.D. moved to suppress his statements to the officers during the interrogation on the
night of his arrest. The juvenile court failed to hold a hearing or issue an order granting
or denying his motion to suppress.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Ten months later, the juvenile court held an adjudicatory hearing. The
state presented testimony from delivery drivers Gregory Teetor and Robert Suesz, and
Cincinnati Police Officers Andrew Snape, Ryan Delk, and Detective Turner. In
addition, the state entered the signed Miranda waiver, interrogation video, gun,
ammunition, magazine, test-fire round, and cell phone into the evidence.
February 16 Robbery
{¶5} Beginning with the first robbery, Gregory Teetor described the night
that he was robbed while delivering food for Papa John’s. According to Teetor, the
restaurant received an order from “Mike” for delivery to 3221 Queen City Avenue.
Teetor entered the lobby of the complex and rang the apartment bell. There was no
answer. When he turned to leave, he encountered “four guys standing there.” Later, he
recalled three teenagers, but it “could have been four.” One pointed a gun at Teetor
and instructed, “give us everything you got.” Teetor described the gun as “real enough
for me to not try my luck,” noting that it had a “handle” and “slide.” Teetor surrendered
$42 and a pizza. On the night of the robbery, Teetor was unable to describe the clothing
of the teenagers. In court, however, Teetor recalled that one of the teenagers wore a
“black skull cap and a black bubble coat,” and another wore brown- or khaki-colored
pants and jacket. And in court, Teetor identified M.D. as one of the perpetrators.
February 21 Robbery
{¶6} Turning to the second robbery, Robert Suesz testified that he was
working at Queen City Pizza as a delivery driver when the restaurant received a late-
night order for delivery to an apartment at 3221 Queen City Avenue. When he arrived
and knocked on the door, there was no response. Suesz recalled that, upon leaving, he
saw “three or four guys” with “bandanas or something” covering their faces. He ran to
his car, but someone chasing Suesz “kicked the door onto his leg” before he was able
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OHIO FIRST DISTRICT COURT OF APPEALS
to shut the door. The person “stuck the butt of the gun on my window,” but “decided
to let [him] go.” Suesz clarified that he “saw a butt of something,” but “didn’t know
what it was.” And he testified that he “didn’t see a gun,” rather just “something on my
window.” Suesz feared for his life and believed, “for a split second,” that he could be
shot. Suesz left without surrendering any money or food.
February 23 Robbery
{¶7} Teetor testified that, on February 23, he was in the restaurant when
employees received an order for delivery from the same phone number that had placed
the February 16 order. The restaurant called the police.
{¶8} Sergeant Andrew Snape testified that he investigated a possible
delivery-driver robbery at 3225 Queen City Avenue. Snape and other officers “set up”
around the apartment building. In an unmarked car with “very dark tinted windows,”
Sergeant Snape sat with his partner in the unlit apartment parking lot at night.
Sergeant Snape recalled seeing someone walk out of the apartment complex and
across the parking lot, weaving through some parked cars and “came up on the
passenger’s side of our vehicle.” Later, he explained that, despite the tinted windows
and darkness, he “could see movement,” “could see shapes,” and “could determine
colors to some extent.” He believed that the person was holding “what appeared to be
a firearm.” Sergeant Snape specified that he “could see a black object” in the person’s
hand, held “forward and down.” Sergeant Snape testified that M.D. was “holding a
dark object that appeared to be not a cell phone but it was much bigger. It was black
and it was pointing down.”
{¶9} According to Sergeant Snape, after he “opened the door [with his]
firearm out,” M.D. ran through the apartment complex, weaving between the
buildings, before officers found M.D. “hiding in a dumpster at the corner of the
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OHIO FIRST DISTRICT COURT OF APPEALS
apartment complex.” During the chase, Sergeant Snape and other officers yelled for
M.D. to stop. When M.D. was found in the dumpster, he was unarmed and was holding
a cell phone. A gun was later found on an embankment “along the path where he ran.”
The state entered the gun, ammunition, magazine, and cell phone into the evidence.
Interrogation
{¶10} Detectives Delk and Turner described their investigation and
interrogation of M.D. Detective Delk recalled securing a search warrant for M.D.’s
phone, which ultimately produced a “phone download printout.” According to
Detective Turner, the officers identified “a few different numbers” used to call the
restaurants, one ending in 8495, which “was used multiple times.” In addition,
Detective Delk described the protocol for advising a person in custody of his Miranda
rights and the use of a standardized form, which M.D. signed.
{¶11} Detective Turner described M.D.’s confession of his participation in the
robberies—“eventually [M.D.] admitted to me he used the phone number to make calls
to pizza places to have food delivered so that robberies could occur.” The state played
two 30-minute parts of the four-and-a-half-hour video. While Detective Turner
recalled that M.D. initially denied any involvement, he testified that M.D. confessed to
making the phone calls and having a gun on the night of the arrest.
{¶12} The juvenile court adjudicated M.D. delinquent for every offense. The
court found that M.D. used a firearm to facilitate the aggravated robberies and
obstruction of official business. In particular, the trial court noted that M.D.’s
confession established that he “clearly [was] aware of the plan” and “had an
involvement.” According to the trial court, M.D. was “not only there but admitted to”
making the call on February 16. Turning to February 21, the juvenile court stated that
M.D. confessed to “making the phone call, that [he] was present, [he] w[as] aware that
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OHIO FIRST DISTRICT COURT OF APPEALS
the plan was to rob the pizza delivery driver, [he] knew that it was a setup, [he] used
the name Michael, the same address, and again used the app on [his] phone, and again
[he] denied having the firearm.” For the February 23 robbery, the juvenile court relied
on the “same method of operation and motive” confessed to by M.D., as well as his
admission of possessing his friend’s “firearm and that [his] plan was to rob the pizza
delivery driver.”
{¶13} The juvenile court issued five separate dispositional orders. For the
February 23 robbery, the juvenile court ordered an indefinite term of commitment to
the custody of the Department of Youth Services (“DYS”) with a minimum of 24
months, not to exceed M.D.’s 21st birthday, and a consecutive “additional period of 36
months” for the accompanying “specification(s).” For the February 16 and 21
robberies, M.D. was ordered to serve an indefinite term of commitment with a
minimum of 24 months, not to exceed his 21st birthday. Turning to the tampering-
with-evidence offense, M.D. was ordered to serve an indefinite term of commitment,
with a six-month minimum, not to exceed his 21st birthday. Finally, the juvenile court
remitted all court costs for the obstruction-of-justice offense.
{¶14} Initially, M.D. challenged the juvenile court’s adjudications in two
assignments of error. But following oral arguments, this court ordered supplemental
briefing to address the issue of M.D.’s request for an attorney. See State v. Magee,
2019-Ohio-1921, 136 N.E.3d 800, ¶ 25 (6th Dist.), quoting State v. Vinson, 2016-Ohio-
7604, 73 N.E.3d 1025, ¶ 66 (8th Dist.); see also State v. Slagle, 65 Ohio St.3d 597, 604,
605 N.E.2d 916 (1992).
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OHIO FIRST DISTRICT COURT OF APPEALS
II. Law and Analysis
{¶15} M.D. raises three assignments of error. First, he argues that the juvenile
court committed plain error when it failed to rule on his motion to suppress. Second,
M.D. contends that the juvenile court’s adjudications were supported by insufficient
evidence and against the manifest weight of the evidence. Third, M.D. maintains that
he received ineffective assistance of counsel. For ease of analysis, we discuss these
arguments out of order.
{¶16} We begin with M.D.’s third assignment of error. He argues that his trial
counsel was constitutionally ineffective for failing to raise M.D.’s request for an
attorney and his parents in the motion to suppress. In the interrogation video, M.D.
asked the detectives, “Can I have a lawyer?” But in M.D.’s motion to suppress, he
moved to exclude “any and all oral statements made by [M.D.]” which he broadly
alleged were “taken in violation of [M.D.]’s rights guaranteed by the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution and Article I, Section 10 of
the Ohio Constitution.” His motion made no reference to any request for a lawyer.
Ineffective Assistance of Counsel
{¶17} In light of state and federal constitutional guarantees of effective
assistance of counsel, “we consider ‘whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.’ ” State v. Solorio, 1st Dist. Hamilton No. C-210526,
2022-Ohio-3749, ¶ 33, quoting Strickland v. Washington, 466 U.S. 668, 686, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). In other words, a court considering an ineffective-
assistance-of-counsel claim based on trial counsel’s failure to file a motion to suppress
must determine if there was “deficient performance and prejudice.” State v. Neyland,
139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 226, quoting Strickland at 687.
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OHIO FIRST DISTRICT COURT OF APPEALS
Trial counsel’s failure to raise an argument in a motion to suppress, or file a motion to
suppress, does not render trial counsel’s assistance per se ineffective. See State v.
Trowbridge, 1st Dist. Hamilton No. C-110541, 2013-Ohio-1749, ¶ 53, citing State v.
Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65. Rather, this type of
ineffective-assistance claim requires proof that there was a basis to suppress the
evidence in question. Brown at ¶ 65.
1. Deficiency
{¶18} Beginning with the deficiency prong, counsel’s assistance was deficient
if it “ ‘ “fell below an objective standard of reasonableness.” ’ ” State v. Nash, 1st Dist.
Hamilton Nos. C-210435 and C-210436, 2022-Ohio-1516, ¶ 14, quoting State v.
Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002), quoting Strickland at 687-688.
This review is deferential and carries a presumption that the conduct in question may
be considered “sound trial strategy.” State v. Hackney, 1st Dist. Hamilton No. C-
150375, 2016-Ohio-4609, ¶ 37.
{¶19} When considering whether trial counsel was deficient for not raising a
suppression argument, a defendant fails to meet his burden of proving that his
attorney violated an essential duty if “the record contains no evidence which would
justify the filing of a motion to suppress.” Neyland at ¶ 126, quoting State v.
Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 208, quoting
State v. Gibson, 69 Ohio App.2d 91, 95, 430 N.E.2d 954 (8th Dist.1980). In other
words, we must determine whether the omitted challenge had arguable merit. See
Brown at ¶ 65; see also State v. Payton, 119 Ohio App.3d 694, 704, 696 N.E.2d 240(11th Dist.1997) (“[w]here there exist reasonable grounds for filing a motion to
suppress, counsel’s failure to file the motion may constitute ineffective assistance and
warrant reversal.”).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} M.D. argues that he unambiguously requested an attorney. The Fifth
and Fourteenth Amendments to the United States Constitution guarantee an
individual accused of a crime the right “to be free from compelled self-incrimination
during custodial interrogation.” Fare v. Michael C., 442 U.S. 707, 709, 99 S.Ct. 2560,
61 L.Ed.2d 197 (1979), citing Miranda, 384 U.S. at 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
As Chief Justice Warren explained, “the right to have counsel present at the
interrogation is indispensable to the protection of the Fifth Amendment privilege
[against self-incrimination].” Miranda at 469. And so, when Miranda rights are
knowingly waived, “law enforcement officers may continue questioning until and
unless the suspect clearly requests an attorney.” Davis v. United States, 512 U.S. 452,
461, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). When an individual “unambiguously
request[s] counsel,” the “ ‘interrogation must cease until an attorney is present.’ ” State
v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 74-75, quoting Davis
at 459, and Miranda at 436. At that point, that individual “ ‘is not subject to further
interrogation by the authorities until counsel has been made available to him, unless
the accused himself initiates further communication, exchanges, or conversations to
police.’ ” Tench at ¶ 75, quoting Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct.
1880, 68 L.E.2d 378 (1981).
{¶21} Neither trial counsel nor appellate counsel raised M.D.’s request for an
attorney during his interrogation until after the initial appellate oral argument when
we ordered briefing on that matter. The parties dispute whether M.D.’s request was
unambiguous and unequivocal. M.D. says yes. The state maintains that M.D.’s
invocation of his right to an attorney was unclear because the officers did not hear
M.D.’s request. But the circumstances surrounding M.D.’s request suggest otherwise.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} At roughly 85 minutes into the video, M.D. acknowledged that he called
Papa John’s on February 23 and placed a delivery order for his friends but maintained
that he left the apartment shortly after placing the call. He insisted he knew nothing
of “the plan.” He told officers he left the apartment and proceeded through the parking
lot, to his grandmother’s house, when a car door opened, and a gun emerged. So he
ran. He denied taking part in the February 16 and 21 robberies. Detective Turner
replied, “I need you to be honest with me.” M.D. insisted that he was. Detective Delk
challenged M.D.—“you know what that means? You’re going to jail for all of these
robberies.” Again, M.D. replied that he called in the delivery order on behalf of friends.
Det. Turner: Why were you outside with a gun?
M.D.: Outside with a gun? I did not have no gun.
M.D.: I am [being honest]. I don’t have to lie about something I just
told you.
Det. Turner: You can’t sidestep that fact.
M.D.: Can I have a lawyer?
Det. Turner: You can’t sidestep that fact.
While Detective Turner continued to press M.D., Detective Delk plainly reacted to
M.D.’s request. At a minimum, “Can I have a lawyer?” is an unequivocal invocation of
the right to counsel and made with sufficient clarity when it elicits a physical response.
{¶23} Following M.D.’s request, United States Supreme Court precedent
required Turner and Delk to “immediately cease questioning him until an attorney is
present.” Davis, 512 U.S. at 462, 114 S.Ct. 2350, 129 L.Ed.2d 362; see also State v.
Kottner, 1st Dist. Hamilton No. C-120350, 2013-Ohio-2159, ¶ 29. An interrogation
becomes unconstitutional when a suspect’s “request for counsel was never fulfilled.”
State v. Williams, 6 Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983). The constitution
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OHIO FIRST DISTRICT COURT OF APPEALS
demands that the individual “ ‘is not subject to further interrogation by the authorities
until counsel has been made available to him, unless the accused himself initiates
further communication, exchanges, or conversations to police.’ ” Tench, 156 Ohio
St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, at ¶ 75, quoting Edwards, 451 U.S. at 484-
485, 101 S.Ct. 1880, 68 L.E.2d 378. This is a bright-line test—“ ‘if a defendant requests
counsel, the police must stop all questioning and interrogation immediately.’ ” State
v. Madden, 1st Dist. Hamilton No. C-210537, 2022-Ohio-2638, ¶ 5, quoting State v.
Knuckles, 65 Ohio St.3d 494, 495, 605 N.E.2d 54 (1992). An interrogation is “any
words or actions on the part of the police * * * that the police should know are
reasonably likely to elicit an incriminating response from the suspect.” Id., quoting
Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In
Madden, this court held that after a request for an attorney, an officer asking “several
times whether he wanted to talk to them, and stat[ing] that they wanted to talk to him”
were calculated to elicit an incriminating response by the suspect. Id. at ¶ 16. Here,
Detective Turner continued pressing M.D. on his involvement, remarking “you can’t
sidestep that fact.” Turner continued questioning the truth of M.D.’s claim that he was
not involved in the robberies. On that basis, M.D. has demonstrated that his Fifth
Amendment claim had arguable merit.
{¶24} Next, we conclude that trial counsel’s assistance fell below an objective
standard of reasonableness. Nothing in the record suggests that raising these claims
at the suppression stage would have amounted to a futile act. This is not a case of an
attorney attempting to “ ‘maneuver within the existing law, declining to present
untested or rejected legal theories.’ ” State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-
2966, 16 N.E.3d 588, ¶ 219, quoting State v. McNeill, 83 Ohio St.3d 438, 449, 700
N.E.2d 596 (1998). Rather, trial counsel was presented with a clear application of state
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OHIO FIRST DISTRICT COURT OF APPEALS
and federal precedent to M.D.’s interrogation. And the United States Supreme Court
has recognized the profound impact a confession has on a trial, admonishing that “[a]
confession is like no other evidence. Indeed, ‘the defendant’s own confession is
probably the most probative and damaging evidence that can be admitted against
him.’ ” Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 LEd.2d 302
(1991), quoting Bruton v. United States, 391 U.S. 123, 139, 88 S.Ct. 1620, 20 L.Ed.2d
476 (1968) (White, J., dissenting). Despite a clear application of well-established
precedent to M.D.’s statements, trial counsel failed to raise obvious Fifth Amendment
claims. There is nothing in the record that would excuse trial counsel’s omission of
these claims at the suppression hearing. Thus, trial counsel was deficient.
2. Prejudice
{¶25} While we hold that M.D. has proved that trial counsel’s performance
was deficient for failing to raise this claim, we hold that he failed to prove that he
suffered prejudice. In an ineffective-assistance claim, prejudice is “a reasonable
probability that the outcome of the proceedings would have been different.”
Strickland, 466 U.S. at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id. When a
juvenile challenges an adjudication, we must ask “ ‘whether there is a reasonable
probability that, absent the error, the factfinder would have had a reasonable doubt
respecting guilt.’ ” State v. Bunch, Slip Opinion No. 2022-Ohio-4723, ¶ 26, quoting
Strickland at 695. According to Strickland, a “reasonable probability” is more than
“some conceivable effect,” but less than “more likely than not [the error] altered the
outcome of the case.” Strickland at 693. In other words, if the remaining “evidence
regarding his guilt was overwhelming,” the error would not have affected the outcome
of the proceedings. State v. White, 82 Ohio St.3d 16, 24, 693 N.E.2d 772 (1998).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} We start with the robbery adjudications. When we excise the
interrogation statements from the evidence in the record, the testimony from the
delivery drivers and Sergeant Snape established that Teetor was robbed by three-to-
four Black teenagers at the entrance of an apartment complex located at 3221 Queen
City Avenue while attempting to deliver food to “Mike” on February 16. In court,
Teetor identified M.D. as one of the robbers, though that identification was equivocal
at times. Similarly, testimony established an attempted armed robbery of Suesz by
three-to-four Black teenagers at the entrance of 3221 Queen City Avenue on February
21. Teetor’s testimony connected the phone number used on February 16 to the
February 23 order, which M.D. admitted to making before he requested an attorney.
M.D.’s admission to making the February 23 call, combined with Teetor’s
identification of M.D. and explanation that the same number placed the delivery
orders on February 16 and 23, tie M.D. to both robberies. And the February 21 robbery
is tied to the February 16 robbery through the address of the delivery, and to the
February 16 and 23 robberies through the manner and method used.
{¶27} Because the evidence connects M.D. to the robberies, we hold that the
outcome of M.D.’s delinquency adjudication for tampering with evidence in violation
of R.C. 2921.12(A)(1) would not have been different. Under R.C. 2921.12(A)(1),
tampering with evidence requires proof that M.D. knew “an official proceeding or
investigation [was] in progress, or [was] about to be or likely to be instituted,” and that
M.D. “altered, destroyed, concealed, or removed” a thing “with purpose to impair its
value or availability as evidence in such proceeding or investigation.” R.C.
2921.12(A)(1). Considering the nature of the offenses, M.D.’s knowledge that an
investigation was likely can be inferred. See State v. Martin, 151 Ohio St.3d 470, 2017-
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio-7556, 90 N.E.3d 857, ¶ 116-117. And Sargeant Snape’s testimony, while
circumstantial, establishes that M.D. possessed and attempted to conceal a gun.
{¶28} And we find no prejudice in M.D.’s adjudication for obstructing official
business under R.C. 2921.31(A). The juvenile court explained that M.D. “clearly ran”
and officers found him hiding in a dumpster. The statute criminalizes any act “that
hampers or impedes a public official in the performance of the public official’s lawful
duties.” R.C. 2921.31(A). We agree that, initially, M.D. was “simply a teenager who ran
from a person he saw getting out of the car with a gun.” But Sergeant Snape testified
that he, and other officers, later identified themselves as officers and instructed M.D.
to stop. Under the statute, flight from an officer attempting a lawful Terry stop
constitutes a violation of Ohio’s obstructing-official-business statute. State v. Lohaus,
1st Dist. Hamilton No. C-020444, 2003-Ohio-777, ¶ 11. Likewise, hiding from police
officers who are attempting a lawful Terry stop violates R.C. 2921.31(A). See State v.
Botos, 12th Dist. Butler No. CA2004-06-145, 2005-Ohio-3504, ¶ 16.
{¶29} In sum, M.D. has not proven that there was a reasonable probability
that, absent trial counsel’s error, the juvenile court would have had a reasonable doubt
of M.D.’s guilt for the aggravated-robbery, obstructing-official-business, and
tampering-with-evidence adjudications. See Strickland, 466 U.S. at 695, 104 S.Ct.
2052, 80 L.Ed.2d 674. While we hold that M.D.’s trial counsel was deficient when he
failed to raise arguably meritorious claims in the suppression motion, M.D. has failed
to prove that he received ineffective assistance of counsel in violation of his Sixth
Amendment rights. We overrule his third assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
Plain Error
{¶30} In his first assignment of error, M.D. argues that the juvenile court
committed plain error when it failed to hold a hearing or rule on his motion to
suppress. To establish that the juvenile court committed plain error, M.D. must show
that the court committed an error, which was obvious, and “affected the outcome of
the trial.” State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Generally, a
court’s failure to rule on a pending motion is construed as a denial of that motion when
the court enters a final judgment. See State v. Pate, 8th Dist. Cuyahoga No. 95382,
2011-Ohio-1692, ¶ 33. The parties agree that Juv.R. 22(D)(3) mandates that a motion
to suppress unlawfully obtained evidence “must be heard before the adjudicatory
hearing,” and that the record indicates that the juvenile court contravened Juv.R.
22(D)(3) when it failed to hear M.D.’s motion. But our prejudice analysis compels us
to conclude that M.D. has failed to prove that the error affected the outcome of the
trial. Thus, we overrule M.D.’s first assignment of error.
Sufficiency and Manifest Weight
{¶31} Turning to his second assignment of error, M.D. contends that his
delinquency adjudications were against the sufficiency and manifest weight of the
evidence. In a sufficiency challenge, we view the evidence in a light most favorable to
the state and determine if “ ‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ” State v. Hartley, 194 Ohio App.3d
486, 2011-Ohio-2530, 957 N.E.2d 44, ¶ 23 (1st Dist.), quoting State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In other words, there
must be “some competent, credible evidence” for each element of the offense. State v.
Caton, 137 Ohio App.3d 742, 750, 739 N.E.2d 1176 (1st Dist.2000).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶32} In contrast, under a manifest-weight standard, this court “reviews the
entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence,
the [factfinder] clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed.” In re B.M., 1st Dist. Hamilton No. C-170103,
2018-Ohio-1733, ¶ 9, quoting State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541(1997).
{¶33} We begin with the aggravated-robbery adjudications. Under the statute,
no person, when “attempting or committing a theft offense * * * shall * * * [h]ave a
deadly weapon on or about the offender’s person or under the offender’s control and
either display the weapon, brandish it, indicate that the offender possesses it, or use
it.” R.C. 2911.01(A)(1). A theft offense is defined by R.C. 2913.01(K)(4) as a
“ ‘conspiracy or attempt to commit, or complicity in committing’ a theft in violation of
R.C. 2913.02(A)(1), which ‘prohibits the purposeful deprivation of property from
another by knowingly exerting or obtaining control over that property without consent
of the owner.’ ” State v. Tenbrook, 12th Dist. Butler No. CA2020-01-005, 2020-Ohio-
5227, ¶ 11.
{¶34} The evidence established that three to four teens brandished a gun to
deprive Teetor of money and food on February 16, without Teetor’s consent. The
evidence connects M.D. to that robbery. Likewise, the evidence connects M.D. to the
attempted armed robbery Suesz on February 21. The phone number and name used to
order the food on February 23, and the testimony of Sergeant Snape establishes that
M.D. attempted to commit aggravated robbery on the night of his arrest. While there
are some discrepancies in Teetor’s and Sergeant Snape’s testimony, a reasonable
factfinder could find that M.D. committed the acts underlying these adjudications.
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OHIO FIRST DISTRICT COURT OF APPEALS
And despite those discrepancies, M.D.’s adjudications were not against the manifest
weight of the evidence.
{¶35} Next, M.D. was adjudicated delinquent for acts that, if committed by an
adult, would constitute tampering with evidence in violation of R.C. 2921.12(A)(1). The
statute states that “[n]o person, knowing that an official proceeding or investigation is
in progress, or is about to be or likely to be instituted, shall * * * alter, destroy, conceal,
or remove any record, document, or thing, with purpose to impair its value or
availability as evidence in such proceeding or investigation.” R.C. 2921.12(A)(1).
{¶36} Sergeant Snape’s testimony established that M.D. had a gun and that a
gun was recovered within a close proximity of M.D.’s path as he ran from Sergeant
Snape. Again, we can infer from the nature of the crimes that M.D. had knowledge that
an investigation was in progress. Therefore, sufficient evidence supported his
delinquency adjudication for tampering with evidence. While we recognize that
Sergeant Snape’s testimony hinted that M.D. was holding something other than a gun,
the juvenile court found his testimony and demonstration credible. The juvenile court
was “ ‘ “in the best position to take into account inconsistencies, along with the
witnesses’ manner and demeanor, and determine whether the witnesses’ testimony
[was] credible.” ’ ” State v. Nettles, 1st Dist. Hamilton No. C-180535, 2019-Ohio-3682,
¶ 17, quoting State v. Saunders, 1st Dist. Hamilton No. C-160781, 2017-Ohio-8557, ¶ 9,
quoting State v. Strider-Williams, 10th Dist. Franklin No. 10AP-334, 2010-Ohio-6179,
¶ 13. Giving deference to the juvenile court’s credibility finding, we hold that M.D.’s
adjudication was not against the manifest weight of the evidence.
{¶37} Finally, M.D. was adjudicated delinquent for acts that, if committed by
an adult, would constitute obstructing official business in violation of R.C. 2921.31(A).
A delinquency adjudication for obstructing official business requires evidence that
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OHIO FIRST DISTRICT COURT OF APPEALS
M.D. “ ‘(1) performed an act; (2) without privilege; (3) with purpose to prevent,
obstruct, or delay the performance of a public official of any authorized act within the
public official’s official capacity; and (4) that hampered or impeded the performance
of the public official’s duties.’ ” State v. Brantley, 1st Dist. Hamilton No. C-210258,
2022-Ohio-597, ¶ 16, quoting State v. Buttram, 1st Dist. Hamilton No. C-190034,
2020-Ohio-2709, ¶ 10, citing In re Payne, 1st Dist. Hamilton No. C-040705, 2005-
Ohio-4849, ¶ 11.
{¶38} First, M.D. argues that the state failed to establish that he lacked
privilege to run from Sergeant Snape. Specifically, M.D. contends that Sergeant Snape
lacked a justification for stopping M.D. But Sergeant Snape testified that M.D.
approached the unmarked car with what appeared to be a gun in his hands. And the
officers were investigating a possible armed robbery. There was reasonable and
articulable suspicion of criminal activity to justify a Terry stop. See In re M.P., 1st Dist.
Hamilton Nos. C-130663 and C-130741, 2014-Ohio-2846, ¶ 10.
{¶39} Second, M.D. asserts that the state failed to show that he knew he was
running from the police. M.D. relies on Sergeant Snape’s testimony that the parking
lot was dark, Sergeant Snape’s car was unmarked and had heavily tinted windows, to
argue that M.D. was unaware that Sergeant Snape was a police officer and that he ran
out of a fear for his own personal safety, rather than “with [a] purpose to prevent,
obstruct, or delay the performance of a public official.” See R.C. 2921.31(A).
Considering the circumstances, we agree that M.D. likely ran out of concern for his
personal safety. Yet, Sergeant Snape testified that he and other officers identified
themselves as police officers and instructed M.D. to stop. This court has held that flight
after receiving instructions from an officer to stop falls “squarely within the statute’s
proscriptions.” State v. Lohaus, 1st Dist. Hamilton No. C-020444, 2003-Ohio-777,
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OHIO FIRST DISTRICT COURT OF APPEALS
¶ 12. And so, when we view the evidence in a light most favorable to the state, a rational
trier of fact could have found that M.D. committed the essential elements of
obstructing official business in violation of R.C. 2921.31(A).
{¶40} Third, M.D. argues that the weight of the evidence proved that he was
holding a cell phone in the parking lot, undermining the argument that Sergeant Snape
was attempting a lawful stop of M.D. But again, we defer to the juvenile court’s finding
that Sergeant Snape’s testimony regarding the gun was credible. Therefore, this is not
an exceptional case where the evidence weighs heavily against the conviction, or a case
where the juvenile court clearly lost its way and created a manifest miscarriage of
justice. M.D.’s second assignment of error is overruled.
III. Conclusion
{¶41} In conclusion, we overrule M.D.’s three assignments of error and affirm
the juvenile court’s delinquency adjudications.
Judgments affirmed.
ZAYAS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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