In re L.S.

[Cite as In re L.S., 2021-Ohio-3353.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
:
IN RE L.S. :
: No. 110351
A Minor Child :
:
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; VACATED IN
PART; REMANDED
RELEASED AND JOURNALIZED: September 23, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL-20-103818
Appearances:
Fred D. Middleton, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Margaret Graham, Assistant Prosecuting
Attorney, for appellee.
EILEEN A. GALLAGHER, J.:
Defendant-appellant L.S. appeals his adjudications of delinquency on
one count of aggravated robbery, three counts of robbery, one count of grand theft
and one count of criminal damaging or endangering. L.S. contends that he was
denied the effective assistance of counsel based on trial counsel’s failure to file a
motion to suppress, or to object to, evidence of (1) a victim’s “cold-stand”
identification and (2) surveillance video footage of the incident. L.S. also appeals
his dispositions for robbery and grand theft on the grounds that they are allied
offenses of similar import to aggravated robbery.
For the reasons that follow, we affirm L.S.’s adjudications of
delinquency but vacate the dispositions on Counts 1-5 and remand for resentencing
on those counts. We also remand for the juvenile court to issue a nunc pro tunc
entry correcting its January 25, 2021 dispositional journal entry to reflect that a
$100 fine (suspended) was imposed on Count 6, not a $400 fine (suspended), as
stated in the journal entry.
Factual Background and Procedural History
On April 1, 2020, the state of Ohio filed a delinquency complaint in
juvenile court charging L.S. as a juvenile offender on six counts: aggravated robbery
in violation of R.C. 2911.01(A)(1) (Count 1), robbery in violation of R.C.
2911.02(A)(1) (Count 2), robbery in violation of R.C. 2911.02(A)(2) (Count 3),
robbery in violation of R.C. 2911.02(A)(3) (Count 4), grand theft in violation of R.C.
2913.02(A)(1) (Count 5) and criminal damaging or endangering in violation of R.C.
2909.06(A)(1). The aggravated robbery, robbery and grand theft counts included
one-year and three-year firearm specifications. The charges related to a March 31,
2020 incident in which L.S. allegedly threatened a 12-year-old boy, J.S., with a gun,
stole a set of car keys J.S. was carrying and then gave the car keys to an associate,
who drove off in, and ultimately crashed, the vehicle. L.S. was 14 years old at the
time of the incident. L.S. denied the charges against him. An adjudicatory hearing
was held on November 3, 2020. A summary of the evidence presented at the hearing
follows.
In the late afternoon or early evening hours of March 31, 2020, J.S.,
J.S.’s mother, J.P., and one of his mother’s friends, M.G., returned home after
running some errands. M.G. parked her vehicle, a white 2008 Mercury Mariner, in
the parking lot of J.P.’s apartment complex on Detroit Avenue in Cleveland, Ohio
and J.S. and the two women carried their purchases inside. Realizing that a bag of
groceries had been left behind in M.G.’s car, J.S. went back out to the car to retrieve
the groceries. J.S. testified that when he went back outside, three male youths
approached him — one was wearing “[r]ed pants and a black sweater,” one was
wearing all black (the “perpetrator wearing black”) and one was wearing a grey
sweater or jacket and black pants (the “perpetrator wearing grey”). J.S. stated that
he “knew of” two of the males and had seen them in the area before but that he was
not friends with any of them. J.S. testified that the male who was wearing red pants
and a black sweater (whom J.S. identified in court as L.S.) had a gun in his hand and
pointed it at J.S. — by his stomach — and that the perpetrator wearing grey had a
gun in his pocket. J.S. stated these two males were wearing black “ski masks.”
J.S. testified that the males first demanded that J.S. give them the car
keys he was carrying and then demanded that he identify the vehicle to which the
car keys belonged. Each time, they told J.S. that if he did not comply, they would
shoot him. J.S. complied. He handed the car keys to L.S. and told him that the keys
were for the “white car.” J.S. stated that he gave L.S. the car keys because he “didn’t
want to die.” L.S. then gave the car keys to the perpetrator wearing grey, who got
into M.G.’s car and drove the vehicle until it struck a curb and became inoperable.
After giving the car keys to L.S., J.S. ran back to his apartment, “nervous and crying,”
and told his mother and M.G. what had happened.
J.P. immediately went outside. M.G. grabbed her cell phone to call
911 and followed J.P. outside. J.P. testified that when she went outside, she saw
several kids in the alley and someone driving M.G.’s vehicle. J.P. followed the
vehicle down the alley. As she reached the end of the alley, the vehicle hit a curb and
the driver jumped out of the vehicle and fled, on foot, down the street. J.P. testified
that, at that time, she saw a boy (whom she identified in court as L.S.) wearing “red
khaki, like reddish pants” and a black hoodie standing at the end of the alley along
with several other kids. J.P. testified that she asked the kids in the alley what was
going on and that L.S. told her that he “didn’t have anything to do with it.” L.S. and
the other kids then ran off. J.P. testified that approximately “one to five minutes”
later, L.S. returned to get a bicycle that had been left in the alley and then rode off
on the bicycle. When J.S. saw L.S. on the bicycle, he recognized him and told his
mother that L.S. was one of the males who had robbed him.
M.G. testified that when she got outside, she saw her car in the middle
of the street. She walked over to her car but was unable to move it because “[t]he
tire was messed up.” The vehicle had to be towed from the scene. M.G. stated that
she was still on the phone with the 911 dispatcher when the police arrived.
Cleveland Police Detective Daniel Florentz, the “lead” officer on the
case, was one of the responding officers. He testified that as he approached the
scene, he saw a white Mercury Mariner in the middle of the road on Detroit Avenue
near W. 87th Street. He indicated that officers in a zone car that was already on
scene were providing updates to other responding officers and reported that two
males possibly connected to the incident — one wearing “maroon pants” and
another wearing a grey jacket or hoodie — were heading northbound on W. 87th
Street. Detective Florentz testified that officers detained one male (whom he
identified in court as L.S.) riding a bike on W. 87th Street, a couple hundred feet
from the scene of the incident. Detective Florentz indicated that when he was
apprehended, L.S. was wearing “maroon pants and a black zip-up hoodie” with “a
red like Louis Vuitton belt” and had a “black hood with a black mask * * * that has a
face cut out on it” on his person.1 He said that officers were unable to locate the
second male. Detective Florentz indicated that no weapons were found on L.S. when
he was apprehended and that no weapons were found during a search of the
surrounding area.
Detective Florentz testified that after L.S. was apprehended, he was
placed in the back of a zone car while officers spoke with J.S. He stated that J.S. was
“shaken up” but was “very knowledgeable” and “could describe a lot of details from
1 The mask with the “face cut out on it” that the police took from L.S. when he was
apprehended was identified by Detective Florentz and admitted into evidence as an
exhibit.
the incident.” He indicated that J.S.’s description of one of the perpetrators,
including the mask found on L.S., matched L.S.
Detective Florentz testified that, after speaking with J.S., he brought
J.S. over to where L.S. was being detained and conducted a “cold-stand.” He
“blocked” J.S. “off” so he would not be seen by L.S., had L.S. step out of the police
vehicle and asked J.S. if he could identify L.S. as one of the males involved in the
incident. Detective Florentz testified that J.S. indicated that L.S. was one of the
males who had robbed him.
Detective Florentz stated that he interviewed L.S. after the incident
and that L.S. claimed that he was headed over to a friend’s house when his cell phone
“died.” According to Detective Florentz, L.S. stated that he saw a group of
individuals he knew as “associates” in the alley and stopped and talked to them a bit.
L.S. claimed that when he saw J.S., he ran up J.S. to tell J.S. that he wanted to talk
to his sister because he had a crush on her.
Surveillance cameras around the parking lot of the apartment
complex captured the incident. Detective Florentz testified that, after the incident,
police recovered surveillance footage from “multiple cameras at the location” and
that he reviewed all of “the multiple different angles * * * from that day.”
Portions of that video footage were played during the testimony of
J.S., M.G., and Detective Florentz and were introduced into evidence on a compact
disc (the “video CD”). The video CD contains two minutes and three seconds of
surveillance video footage from various camera angles and includes date and time-
stamps.
The video CD begins with video footage of a boy (identified in court
as J.S.) walking into the parking lot and several other male youths — including a
male wearing a black hoodie and red pants (identified in court as L.S.), an
unidentified male wearing a grey jacket, an identified male wearing all black and an
unidentified male wearing a blue-and-white jacket — standing or sitting in an alley
on the other side of the parking lot. As J.S. walks through the parking lot, the male
youths turn in his direction, watching him, then become animated, jumping around.
The male wearing all black pulls up the hood of his hoodie and takes something from
the male wearing the blue-and-white-jacket. Three of the youths — L.S., the male
wearing a grey jacket and the male wearing all black — run towards J.S., with L.S.
leading the way. As the three youths get closer to J.S., the male wearing all black
tosses a gray or silver object to the male wearing the grey jacket. L.S. and the male
wearing a grey jacket approach J.S. as he reaches the area where several cars are
parked. The surveillance video shows the males interact with J.S. briefly, then L.S.
and the male in the grey jacket move towards a white vehicle. The male in the grey
jacket opens the door of the white vehicle, gets inside,2 drives it out of the parking
lot until the vehicle hits the curb and stops in the middle of the street. The male in
2 During her testimony, M.S. identified her vehicle as the white vehicle depicted in
surveillance video footage on the video CD.
the grey jacket gets out of the vehicle, abandons it in the middle of the street and
runs from the scene in the opposite direction from the apartment complex.
As the male in gray jacket got into the vehicle and drove it out of the
parking lot, the surveillance video shows J.S. running back towards his apartment
and L.S. running back towards the alley.
J.S. identified the alley and parking lot depicted in the video CD as
the alley and parking lot for his apartment complex where the incident occurred.
J.S. also identified himself and L.S. in the surveillance video footage included on the
video CD. As the state played the video CD during his testimony, J.S. described what
was depicted in the video — i.e., J.S. walking to the car, the three males “running up”
to him, the perpetrator in black tossing a gun to the perpetrator in grey who then
handed the gun to L.S., J.S. backing up as L.S. pointed the gun at him, J.S. giving
the car keys to L.S. and the perpetrator in grey getting into the car and driving out
of the parking lot as J.S. ran back to his apartment. J.S. testified that he did not
personally observe the perpetrator in black toss a gun to the perpetrator in grey; he
only saw it on the surveillance video. He stated that he did, however, personally
observe the perpetrator in grey “throw” a gun to L.S. as the males approached him,
which L.S. then pointed at J.S.
The state also played the video CD during Detective Florentz’s
testimony. Detective Florentz identified L.S. as the male wearing “maroon pants,
black zip-up hoodie, black mask” observed in the surveillance video and described
what was depicted in the surveillance video,3 i.e., an unidentified male in a white-
and-blue jacket “hand[ing] off what appeared to be a gun” to an unidentified male
in a black jacket who then “hands it off” to an unidentified male in a grey jacket, L.S.
and the unidentified male in the grey jacket running up to J.S. “behind his vehicle
as it’s parked” and “like back[ing] [him] up against the car” and J.S. running back
toward his apartment as “one of the suspects” enters the vehicle and drives it out of
the parking lot and L.S. and the other males run back down the alley.
Detective Florentz testified that the surveillance video footage on the
video CD was “a fair and accurate depiction” of the surveillance footage police had
recovered relating to the incident. He stated that the surveillance video footage was
consistent with J.S.’s version of events but was not consistent with what L.S. had
told him had occurred.
L.S.’s trial counsel did not object to the video CD or to the witnesses’
testimony relating to the surveillance video footage. L.S. did not present any
witnesses at the hearing.
3 Detective Florentz testified that the surveillance footage recovered by police also
showed that prior to the incident, L.S. walked up to and knocked on the door of one of the
apartments, that he talked with another male and that a few other males then came out
of the apartment. He stated that the surveillance video footage then showed the males
walk around the building into the alley, where they sat, smoking cigarettes and “just
joking around laughing.” He stated that the surveillance video footage also showed J.S.
“coming home with his family,” parking the vehicle and walking down to their apartment.
None of this surveillance footage was included on the video CD that was played at the
hearing and admitted into evidence as an exhibit.
After considering the evidence presented, the juvenile court found
that the allegations of the complaint had been proven beyond a reasonable doubt,
and L.S. was adjudicated delinquent on all six counts.
On January 21, 2021, the juvenile court held a dispositional hearing.
At the dispositional hearing, the juvenile court found that the aggravated robbery,
robbery and grand theft counts were allied offenses that merged for disposition and
that the one-year firearm specifications merged with the three-year firearm
specifications. On the aggravated robbery count, the juvenile court sentenced L.S.
to a minimum two-year term in the Ohio Department of Youth Services, i.e., one
year on the three-year firearm specification to be served prior to and consecutively
to one year on the underlying offenses. On the criminal damaging or endangering
count, the juvenile court sentenced L.S. to 78 days in the detention center, with
credit for 78 days served. The juvenile court also imposed a $1,500 fine on the
aggravated robbery count, a $400 fine on the grand theft count and a $100 fine on
the criminal damaging and endangering count — all of which were suspended — and
ordered L.S. to pay $250 in restitution to the victim. The juvenile court judge
indicated that “[s]ince the Court found that Counts 2, 3 and 4 are allied offenses and
they merge with Count 1, I will not impose a fine * * * on those.”4
On January 25, 2021, the juvenile court issued a written journal entry,
setting forth its disposition of the case. The journal entry stated that L.S. was
4 As noted above, although the juvenile court also found that Count 5, grand theft,
merged with Count 1, it, nevertheless, imposed a $400 fine (suspended) on that count at
the dispositional hearing.
“hereby committed to the Department of Youth Services for a period of 2 years” and
set forth the sentences imposed on the individual counts as follows:
● As to Count 1, aggravated robbery — to ODYS for a minimum
period of 12 months and a maximum period not to exceed L.S.’s
attainment of 21 years of age, plus one year each on the three-
year and one-year firearm specifications, to be served prior to
and consecutive to the sentence on the underlying offense but
concurrently to each other.
● As to Count 2, robbery — to ODYS for a minimum period of 12
months and a maximum period not to exceed L.S.’s attainment
of 21 years of age, plus one year each on the three-year and one-
year firearm specifications, to be served prior to and consecutive
to the sentence on the underlying offense but concurrently to
each other.
● As to Count 3, robbery — to ODYS for a minimum period of 12
months and a maximum period not to exceed L.S.’s attainment
of 21 years of age, plus one year each on the three-year and one-
year firearm specifications, to be served prior to and consecutive
to the sentence on the underlying offense but concurrently to
each other.
● As to Count 4, robbery — to ODYS for a minimum period of six
months and a maximum period not to exceed L.S.’s attainment
of 21 years of age, plus one year each on the three-year and one-
year firearm specifications, to be served prior to and consecutive
to the sentence on the underlying offense but concurrently to
each other.
● As to Count 5, grand theft — to ODYS for a minimum period of
six months and a maximum period not to exceed L.S.’s
attainment of 21 years of age, plus one year each on the three-
year and one-year firearm specifications, to be served prior to
and consecutive to the sentence on the underlying offense but
concurrently to each other.
● As to Count 6, criminal endangering — a 78-day sentence in the
detention center, with credit given for 78 days.
The journal entry further stated that “[i]t is ordered that counts 2, 3, 4 and 5 are
allied cases [sic] and these counts shall run concurrently with count 1.”
The journal entry set forth the fines imposed as follows:
The child is ordered to pay fines in the amount of $1500.00 as to count
(1) and [$]400.00 as to count (6). There is [sic] no fines assessed in
counts 2, 3, 4 and 5 because these are considered allied offenses. It is
further ordered that said fines are suspended.
L.S. appealed, raising the following two assignments of error for
review:
Assignment of Error No. 1: The juvenile court erred in failing to merge
appellant’s adjudications and dispositions for aggravated robbery and
robbery as “allied offenses of similar import” and * * * the failure to
merge the adjudications violated the double-jeopardy protections
contained in the United States and Ohio Constitutions.
Assignment of Error No. 2: The trial counsel was ineffective by not
filing motions to suppress the “cold-stand” and surveillance video and
objecting to the use of that evidence in trial.
Law and Analysis
Multiple Sentences on Allied Offenses
In his first assignment of error, L.S. contends that the juvenile court
erred when it imposed separate sentences on the robbery and grand theft counts
(Counts 2-5) after it determined that they were allied offenses of similar import and
merged with the aggravated robbery count (Count 1). We agree.
As the Ohio Supreme Court has stated, “juveniles are entitled to the
same constitutional double-jeopardy protections as adults” and “juvenile courts
must conduct the same double-jeopardy analysis in delinquency proceedings that
other courts apply in adult criminal proceedings.” In re A.G., 148 Ohio St.3d 118,
2016-Ohio-3306, 69 N.E.3d 646, ¶ 1. This includes application of Ohio’s merger
statute. Id. at ¶ 11-12, 15 (observing that “[b]ecause the protections contained in R.C.
2941.25 encapsulate constitutional double-jeopardy protections, the language and
principles of that statute can be applied to juveniles as well” and that “under the
Ohio Constitution, a juvenile’s double-jeopardy protections are violated when that
juvenile is subjected to multiple terms of commitment for conduct constituting
allied offenses of similar import”).
R.C. 2941.25, Ohio’s merger statute, prohibits the imposition of
multiple sentences for allied offenses of similar import. It provides, in relevant part:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment
or information may contain counts for all such offenses, but the
defendant may be convicted of only one.
R.C. 2941.25(A). When a sentencing court determines that an offender has been
found guilty of two or more offenses that are allied offenses of similar import, the
state selects the allied offense on which the offender is to be sentenced and the court
then impose a sentence on only that allied offense. State v. Williams, 148 Ohio St.3d
403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 2, 17 (‘“[I]t is the state that chooses which of
the allied offenses to pursue at sentencing,’ * * * and ‘[w]hen the state elects which
of the two allied offenses to seek sentencing for, the court must accept the state’s
choice and merge the crimes into a single conviction for sentencing.’”), quoting State
v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 20, 24.
In this case, the transcript reflects that, at the dispositional hearing
the juvenile court (1) determined that the aggravated robbery offense, the robbery
offenses and the grand theft offense were allied offenses of similar import, (2)
indicated that these counts would be merged for disposition and (3) sentenced L.S.
on the aggravated robbery count. There is nothing in the record to indicate that the
state elected that L.S. be sentenced on the aggravated robbery count as opposed to
one of the other counts; however, the state does not appear to have objected to the
juvenile court’s determination that the offenses were allied offenses of similar
import or its sentencing of L.S. on the aggravated robbery count as opposed to one
of the other allied offense counts.
At the dispositional hearing, the juvenile court determined that
Counts 1-5 were allied offenses that merged and, therefore, imposed a sentence on
only one of those counts,5 the juvenile court’s January 25, 2021 dispositional journal
entry sets forth sentences on each of the five allied offenses, then orders that the
sentences be served concurrently.
The state asserts that because L.S.’s sentences for the allied offenses
ran concurrently, he was “only punished for his delinquent actions a single time”
and, therefore, “[j]eopardy occurred once, in compliance with the Ohio Revised
Code, the Ohio Constitution and the Fifth Amendment.” However, “the imposition
5 Also, the juvenile court stated at the dispositional hearing that it would not
impose a fine on Counts 2, 3 and 4 because they “are allied offenses and they merge with
Count 1,” it imposed a $400 fine (suspended) on Count 5 — even though it had previously
determined that Count 5 also merged with Counts 1-4. Thus, the imposition of a fine on
Count 5 was in error.
of concurrent sentences is not the equivalent of merging allied offenses of similar
import.” Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, at ¶ 3, 34,
citing State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512, ¶ 17.
Where a trial court has determined that an offender’s multiples offenses are allied
offenses of similar import, it cannot impose a separate sentence for each offense.
Williams at ¶ 28. Rather, the trial court has “a mandatory duty to merge the allied
offenses by imposing a single sentence.” Id.; see also State v. Underwood, 124 Ohio
St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 26 (“R.C. 2941.25(A) clearly provides that
there may be only one conviction for allied offenses of similar import. Because a
defendant may be convicted of only one offense for such conduct, the defendant may
be sentenced for only one offense. * * * [A] trial court is prohibited from imposing
individual sentences for counts that constitute allied offenses of similar import.”);
cf. In re C.N., 8th Dist. Cuyahoga No. 107371, 2019-Ohio-179, ¶ 1-2, 5-6 (where, at
sentencing, juvenile court determined that aggravated robbery and robbery counts
merged into kidnapping counts but the journal entry reflected a juvenile disposition
for each of the counts to be served concurrently, case remanded for “correction
through a nunc pro tunc entry” to indicate that counts merged and to “reflect the
proper punishment”). Thus, the juvenile court erred in setting forth concurrent
sentences on Counts 1-5 in its journal entry.
L.S.’s first assignment of error is sustained. L.S.’s dispositions on
Counts 1-5 are vacated, and the matter is remanded to the juvenile court (1) to allow
the state to elect the allied offense on which it wishes L.S. to be resentenced and (2)
for resentencing on that count.
Ineffective Assistance of Counsel
In his second assignment of error, L.S. contends that he was denied
the effective assistance of counsel because trial counsel failed to file a motion to
suppress or to object to evidence of (1) J.S.’s “cold-stand” identification of L.S. and
(2) the video CD containing surveillance video footage of the incident.
“The Sixth Amendment to the United States Constitution guarantees
an accused juvenile the same rights to effective assistance of counsel as an adult
criminal defendant.” In re M.B., 8th Dist. Cuyahoga No. 106434, 2018-Ohio-4334,
¶ 54, citing In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). To
establish ineffective assistance of counsel, the represented party must demonstrate:
(1) deficient performance by counsel, i.e., that counsel’s performance fell below an
objective standard of reasonable representation, and (2) that counsel’s errors
prejudiced the party, i.e., a reasonable probability that but for counsel’s errors, the
outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-
688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable
probability” is “probability sufficient to undermine confidence in the outcome.”
Strickland at 694. L.S. has not met his burden here.
In Ohio, every properly licensed attorney is presumed to be
competent. State v. Black, 2019-Ohio-4977, 149 N.E.3d 1132, ¶ 35 (8th Dist.), citing
State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Thus, in evaluating
counsel’s performance on a claim of ineffective assistance of counsel, the court must
give great deference to counsel’s performance and “indulge a strong presumption”
that counsel’s performance “falls within the wide range of reasonable professional
assistance.” Strickland at 689; see also State v. Powell, 2019-Ohio-4345, 134
N.E.3d 1270, ¶ 69 (8th Dist.) (‘“A reviewing court will strongly presume that counsel
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.’”), quoting State v. Pawlak, 8th Dist. Cuyahoga
No. 99555, 2014-Ohio-2175, ¶ 69.
The failure to file a motion to suppress is not per se ineffective
assistance of counsel. See, e.g., State v. Musleh, 8th Dist. Cuyahoga No. 105305,
2017-Ohio-8166, ¶ 31; State v. Watts, 8th Dist. Cuyahoga No. 104188, 2016-Ohio-
8318, ¶ 17, citing State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).
Rather, a trial counsel’s failure to file a motion to suppress constitutes ineffective
assistance of counsel only if there is a reasonable probability that, had the motion to
suppress been filed, it would have been granted and that suppression of the
challenged evidence would have affected the outcome of the case. See, e.g., State v.
Frierson, 2018-Ohio-391, 105 N.E.3d 583, ¶ 17 (8th Dist.); Musleh at ¶ 31. Counsel
is not required to file a motion to suppress if doing so would be a futile act. See, e.g.,
Musleh at ¶ 31; State v. Armstrong, 8th Dist. Cuyahoga No. 103088, 2016-Ohio-
2627, ¶ 30; State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶ 28
(‘“Even if some evidence in the record supports a motion to suppress, counsel is still
considered effective if counsel could reasonably have decided that filing a motion to
suppress would have been a futile act.’”), quoting State v. Suarez, 12th Dist. Warren
No. CA2014-02-035, 2015-Ohio-64, ¶ 13; State v. Brooks, 11th Dist. Lake No. 2011-
L-049, 2013-Ohio-58, ¶ 57 (‘“If case law indicates the motion would not have been
granted, then counsel cannot be considered ineffective for failing to prosecute it.’”),
quoting State v. Gaines, 11th Dist. Lake Nos. 2006-L-059 and 2006-L-060, 2007-
Ohio-1375, ¶ 17; State v. Grimes, 8th Dist. Cuyahoga No. 94827, 2011-Ohio-4406, ¶
30 (“[W]here there is no basis for the suppression of evidence, defense counsel has
no duty to pursue a motion to suppress evidence * * * and where the claim of
ineffective assistance is premised upon the failure to file a baseless motion to
suppress, such claim must fail.”), citing State v. Gibson, 69 Ohio App.2d 91, 95, 430
N.E.2d 954 (8th Dist.1980).
Likewise, the failure to object is not per se ineffective assistance of
counsel. ‘“Objecting is a tactical decision.’” Frierson at ¶ 25, quoting State v.
Johnson, 7th Dist. Jefferson No. 16 JE 0002, 2016-Ohio-7937, ¶ 46. As a general
matter, defense counsel’s tactical decisions and trial strategies, even “debatable”
ones, do not constitute ineffective assistance of counsel. See, e.g., State v. Conway,
109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101, 111; Black, 2019-Ohio-
4977, 149 N.E.3d 1132, at ¶ 35; State v. Foster, 8th Dist. Cuyahoga No. 93391, 2010-
Ohio-3186, ¶ 23. Reviewing courts “will ordinarily refrain from second-guessing
strategic decisions counsel make at trial,” even where trial counsel’s strategy was
“questionable” and even where appellate counsel asserts that he or she would have
defended against the charges differently. State v. Myers, 97 Ohio St.3d 335, 2002-
Ohio-6658, 780 N.E.2d 186, ¶ 152; State v. Mason, 82 Ohio St.3d 144, 169, 694
N.E.2d 932 (1998). As such, the failure to make an objection, is generally not, in
and of itself, sufficient to sustain a claim of ineffective assistance of counsel.
Conway at ¶ 103; Frierson at ¶ 25; see also State v. Mitchell, 53 Ohio App.3d 117,
119, 559 N.E.2d 1370 (8th Dist.1988) (“[A] trial attorney does not violate any
substantial duty in failing to make futile objections.”).
Cold-Stand Identification
In this case, L.S. contends that his counsel was ineffective for failing
to file a motion to suppress or to object to evidence of J.S.’s cold-stand identification
of L.S. because “[t]he evidence produced through a ‘cold stand’ was obtained under
objectionable overly suggestive procedures used by the police.”
A “cold-stand” identification is “a pretrial identification procedure
whereby the police have a suspect into custody and ‘take him to be identified by a
witness.’” In re S.A., 8th Dist. Cuyahoga No. 107707, 2019-Ohio-4782, ¶ 30, quoting
In re T.H., 8th Dist. Cuyahoga No. 106433, 2018-Ohio-2300, ¶ 12. In considering
the admissibility of a cold-stand identification, courts apply a two-prong test. State
v. Davis, 8th Dist. Cuyahoga No. 101502, 2015-Ohio-1144, ¶ 19, 21. First, the
defendant or alleged delinquent must show that the identification procedure was “so
impermissibly suggestive as to give rise to a substantial likelihood of
misidentification.” Id. at 19-20; In re T.W., 2017-Ohio-8875, 100 N.E.3d 1239, ¶ 6
(8th Dist.); In re S.A. at ¶ 31-32.
If the defendant or alleged delinquent demonstrates that the
identification procedure was impermissibly suggestive, the court must then
determine whether the witness’ identification, when viewed under the totality of the
circumstances, was reliable despite the suggestive procedure, i.e., whether the
witness’ identification was reliable independent of the police conduct and
procedure. Davis at ¶ 21; In re T.W. at ¶ 7, 16; In re S.A. at ¶ 32. When evaluating
the reliability of a witness’ identification, courts consider: (1) the witness’
opportunity to view the perpetrator at the time of the offense; (2) the witness’ degree
of attention; (3) the accuracy of the witness’ prior description of the perpetrator; (4)
the witness’ level of certainty when identifying the suspect and (5) the length of time
between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200,
93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Davis at ¶ 21; In re T.W. at ¶ 7; In re S.A. at
¶ 32.
“Reliability” of the cold-stand identification is the “linchpin” in
determining its admissibility. State v. Wright, 2d Dist. Montgomery No. 28831,
2021-Ohio-2133, ¶ 68. In other words, “[t]he purpose of the reliability inquiry is to
determine whether the unduly suggestive nature of the identification was overcome
by the reliability of the witness.” In re T.W. at ¶ 16. ‘“So long as the identification
possesses sufficient aspects of reliability, there is no violation of due process’” and
evidence of the cold-stand identification is admissible. Wright at ¶ 68, quoting State
v. Sherls, 2d Dist. Montgomery No. 18599, 2002 WL 254144, 3 (Feb. 22, 2002); see
also In re T.W. at ¶ 7 (‘“The focus is therefore upon the reliability of the identification
and not the identification procedures themselves.’ * * * No one factor is
dispositive.”), quoting Davis at ¶ 18.
As the Ohio Supreme Court has explained:
“There is no prohibition against a viewing of a suspect alone in what is
called a ‘one-man showup’ when this occurs near the time of the alleged
criminal act; such a course does not tend to bring about
misidentification but rather tends under some circumstances to insure
accuracy. * * *
“[P]olice action in returning the suspect to the vicinity of the crime for
immediate identification in circumstances such as these fosters the
desirable objectives of fresh, accurate identification which in some
instances may lead to the immediate release of an innocent suspect and
at the same time enable the police to resume the search for the fleeing
culprit while the trail is fresh.”
State v. Madison, 64 Ohio St.2d 322, 332, 415 N.E. 2d 272 (1980), quoting Bates v.
United States, 405 F.2d 1104, 1106 (D.C.Cir.1968); see also In re S.A., 2019-Ohio-
4782, at ¶ 33.
L.S. does not identify what “overly suggestive procedures” he
contends were used by police nor does he otherwise explain how the cold-stand
identification was objectionable and why it should have been suppressed. Further,
he fails to provide any citation to the record or authority to support his argument.
See App.R. 16(A)(7) (“The appellant shall include in its brief * * * [a]n argument
containing the contentions of the appellant with respect to each assignment of error
presented for review and the reasons in support of the contentions, with citations to
the authorities, statutes, and parts of the record on which appellant relies.”). “It is
not the role of this court to make arguments for a party.” State v. Harris, 8th Dist.
Cuyahoga No. 109083, 2020-Ohio-4138, ¶ 31; see also State v. Jacinto, 2020-Ohio-
3722, 155 N.E.3d 1056, ¶ 56 (8th Dist.) (“An appellate court is not obliged to
construct or develop arguments to support an appellant’s assignment of error and
‘will not “guess at undeveloped claims on appeal.’””), quoting State v. Piatt, 2020-
Ohio-1177, 153 N.E.3d 573, ¶ 39 (9th Dist.), quoting McPherson v. Goodyear Tire &
Rubber Co., 9th Dist. Summit No. 21499, 2003-Ohio-7190, ¶ 31; App.R. 12(A)(2)
(“The court may disregard an assignment of error presented for review if the party
raising it fails to identify in the record the error on which the assignment of error is
based * * * as required under App.R. 16(A).”).
Even if we were to consider the issue, there is nothing in the record to
indicate that the “cold stand” conducted in this case involved “overly suggestive
procedures” or otherwise led to an unreliable identification of L.S. The incident
occurred in the late afternoon or early evening in an area in which there was plenty
of light. J.S. was in close proximity to the perpetrators and had ample opportunity
to observe the perpetrators as he was being robbed.
The cold stand was conducted shortly after the incident. Before the
cold stand — and within five minutes after the incident — J.S. had already identified
L.S. as one of the perpetrators to his mother. Within minutes after the robbery, J.S.
also provided a detailed description of the perpetrators to police, which led police to
promptly apprehend L.S. a short distance from the scene of the incident.
Detective Florentz testified that although J.S. was “shaken up”
immediately following the incident, he was able to provide “a lot of details” about
the incident and that his version of the events, including his description of the
perpetrators, was consistent throughout the case. There is nothing to indicate that
J.S. showed any hesitancy or uncertainty during the cold stand (or at any other time)
in identifying L.S. as the male who had pointed a gun at him, threatened to shoot
him and took the keys to M.G.’s car from him.
Further, J.S.’s cold-stand identification of L.S. was not the only
evidence linking L.S. to the crime. Aside from his cold-stand identification of L.S.,
J.S. clearly and unequivocally identified L.S. in court (as well as to his mother prior
to the cold stand) as the male who had pointed a gun at him, threatened to shoot
him and took the keys to M.G.’s car from him. J.S.’s trial testimony was credible. In
addition, L.S. was apprehended with a black mask that matched J.S.’s description of
the masks worn by the perpetrators. L.S. has not shown that, even if trial counsel
had filed a motion to suppress the cold-stand identification, it would have made a
difference in the outcome of the case. Accordingly, we cannot say that L.S. was
denied effective assistance of trial counsel based on counsel’s failure to file a motion
to suppress or to object to evidence of J.S.’s cold-stand identification of L.S.
CD Containing Video Surveillance Footage
With respect to trial counsel’s failure to object to the video CD, L.S.
argues that the video CD was objectionable because it “was not supported by any
testimony of who and how it was created nor what was left out of the video or
changed from the different cameras and who owned or produced them” and that,
therefore, it was not properly authenticated under Evid.R. 901(A).
Evid.R. 901(A) addresses the authentication or identification of
evidence prior to its admissibility. Evid.R. 901(A) states: “The requirement of
authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its
proponent claims.” This authentication requirement is ‘“a low threshold.’” State v.
Rogers, 8th Dist. Cuyahoga No. 105879, 2018-Ohio-3495, ¶ 15, quoting State v.
Maust, 8th Dist. Cuyahoga No. 103182, 2016-Ohio-3171, ¶ 24. It ‘“does not require
conclusive proof of authenticity, but only sufficient foundation evidence for the trier
of fact to conclude that the evidence is what its proponent claims it to be.’” Rogers
at ¶ 15, quoting Maust at ¶ 24. The proponent of the evidence must demonstrate a
‘“reasonable likelihood’ that the evidence is authentic,” which may be supplied by
the testimony of a witness with knowledge. State v. Roseberry, 197 Ohio App.3d
256, 268, 2011-Ohio-5921, 967 N.E.2d 233, ¶ 65 (8th Dist.), quoting State v. Bell,
12th Dist. Clermont No. CA2008-05-044, 2009-Ohio-2335, ¶ 30; Wright, 2021-
Ohio-2133, at ¶ 77. Evid.R. 901(B) provides examples of several ways that the
authentication requirement may be satisfied, including through testimony by a
“witness with knowledge” that “a matter is what it is claimed to be.” Evid.R.
901(B)(1).
Photographic evidence, including video evidence, is generally
authenticated in one of two ways. See, e.g., State v. Davis, 2d Dist. Montgomery No.
28923, 2021-Ohio-1833, ¶ 20; State v. Rosemond, 2019-Ohio-5356, 150 N.E.3d 563,
¶ 58 (1st Dist.).
Under the “pictorial testimony” theory, ‘“photographic evidence is
merely illustrative of a witness’ testimony’” and becomes admissible ‘“when a
sponsoring witness can testify that it is a fair and accurate representation of the
subject matter, based on the witness’ personal observation.”’ Midland Steel Prods.
Co. v. U.A.W. Local 486, 61 Ohio St.3d 121, 129, 573 N.E.2d 98 (1991), quoting
Fisher v. State, 7 Ark.App. 1, 5-6, 643 S.W.2d 571 (1982); State v. Pickens, 141 Ohio
St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 150; Cleveland v. Alrefaei, 2020-
Ohio-5009, 161 N.E.3d 53, ¶ 28. Under the “silent witness” theory, ‘“photographic
evidence is a “silent witness,” which speaks for itself, and is substantive evidence of
what it portrays independent of a sponsoring witness.’” Midland Steel at 129-130,
quoting Fisher at 5-6; Pickens at ¶ 150; Alrefaei at ¶ 28. Under this theory,
photographic evidence becomes admissible “upon a sufficient showing of the
reliability of the process or system that produced the evidence.” Midland Steel at
130.
In this case, Detective Florentz testified that police retrieved
surveillance footage after the incident from “multiple cameras at the location,” that
he had reviewed all of the surveillance footage obtained from that day and that the
surveillance footage included on the video CD was “a fair and accurate depiction” of
the surveillance footage police had recovered. Detective Florentz further testified
that the parking lot depicted in the video footage on the video CD was the parking
lot in which the incident had allegedly occurred and he identified L.S. as one of the
alleged perpetrators observed in the video footage. J.S. similarly testified that the
alley and parking lot depicted in the video footage were the back alley and parking
lot for his apartment complex where the incident occurred. He identified himself in
the video footage and also identified L.S. as one of the perpetrators observed in the
video footage. He explained, based on his personal knowledge, how the video
showed what occurred during the incident, as he had previously testified. During
her testimony, M.S. identified her vehicle as the white vehicle depicted in the video
footage. The testimony of J.S., Detective Florentz and M.G. was arguably sufficient
to authenticate the video CD under Evid.R. 901(A) and (B)(1). Further, there is
nothing in the record to suggest that, if trial counsel had promptly raised an
objection to the admissibility of the video CD under Evid.R. 901, the state witnesses
could not have provided additional testimony laying a more thorough foundation
for the admissibility of the video CD, if necessary.
There is nothing in the record to suggest that the surveillance video
footage included on the video CD had been distorted or compromised in any way or
that it was otherwise an inaccurate portrayal of the events that occurred. Instead of
objecting to the video CD, trial counsel chose to use the video surveillance footage
in his cross-examination of witnesses — using it to test the recollections of witnesses,
to challenge their credibility and to cast doubt on what they claimed occurred.
Under the circumstances here, we cannot say that trial counsel’s failure to object to
the admissibility of the video CD under Evid.R. 901(A) was not a reasonable, tactical
decision.
Further, even if trial counsel was deficient for failing to object to the
video CD under Evid.R. 901(A), L.S. has not shown that he was prejudiced as a
result, i.e., that there is a reasonable probability that, but for counsel’s failure to
object to the video CD, the outcome of the case would have been different.
L.S. asserts that, because J.S. testified that “he did not actually see the
gun that was tossed and it was held in a grey sweatshirt pocket during the robbery,”
“[t]he elements of armed robbery could not be proven” if the video CD and J.S.’s
testimony regarding what he saw on the surveillance video had been excluded. We
disagree.
Although J.S. testified that he did not personally observe the
perpetrator in black toss a gun to the perpetrator in grey — i.e., J.S. acknowledged
that he only saw perpetrator in black toss a gun to the perpetrator in grey when
viewing the surveillance video — he also testified that he personally observed the
perpetrator in grey “throw” a gun to L.S. as the males approached him, which L.S.
then pointed at him. J.S. testified clearly and unequivocally that L.S. pointed a gun
at his stomach, threatening to shoot him if he did not give L.S. the car keys and
identify the vehicle to which the keys belonged. J.S. further testified that he
complied with L.S.’s demands because he “didn’t want to die.”
The video CD did corroborate J.S.’s version of events and, based on
the record before us, the state presented sufficient evidence to prove all of the
elements of each of the offenses at issue, including “the firearm charges,” even
without the video CD or any witness testimony regarding what could be observed
the video CD. Accordingly, we cannot say that L.S. was denied effective assistance
of counsel based on trial counsel’s failure to object to the admissibility of the video
CD under Evid.R. 901(A).
L.S.’s second assignment of error is overruled.
L.S.’s dispositions on Counts 1-5 are vacated, and the matter is
remanded to the juvenile court first, to allow the state to elect the allied offense on
which it wishes L.S. to be resentenced and second, for resentencing on that count.
In addition, we note, sua sponte, that although, at the dispositional hearing, the
juvenile court imposed a $100 fine, which it later suspended, on Count 6, in its
January 25, 2021 journal entry, it imposed a $400 fine (suspended) on Count 6.
Accordingly, this case is also remanded for the juvenile court to issue a nunc pro
tunc journal entry correcting this error to reflect the fine imposed at the
dispositional hearing.
Judgment affirmed in part; vacated in part; remanded.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the Cuyahoga
County Common Pleas Court, Juvenile Division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
________________________
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
EMANUELLA D. GROVES, J., CONCUR