[Cite as In re G.B.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 95521, 96169, and 96279

IN RE: G.B. A Minor Child

JUDGMENT: REVERSED AND REMANDED

Criminal Appeals from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL 10106206

BEFORE: Jones, J., Stewart, P.J., and Cooney, J.

RELEASED AND JOURNALIZED: October 6, 2011 ATTORNEYS FOR APPELLANT

Timothy Young State Public Defender

BY: Sheryl A. Trzaska Assistant State Public Defender Office of the Ohio Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Amey Tucker Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

LARRY A. JONES, J.: 1 {¶ 1} Defendant-appellant, “G.B.,” appeals his juvenile delinquency

adjudication for aggravated robbery. For the reasons that follow, we reverse.

We identify the appellant by his initials in keeping with this court’s established policy to 1

protect the identities of juvenile appellants. {¶ 2} In 2010, G.B. was charged in Cuyahoga County Juvenile Court with one

count of aggravated robbery with one- and three-year firearm specifications. The matter

proceeded to a bench trial, at which the following evidence was presented.

State’s Evidence

{¶ 3} James Jackson (“Jackson”) testified that on April 9, 2010, he left his house

on Silsby Avenue in Cleveland Heights “after 10 p.m.” to walk to the CVS drugstore on

the corner of Cedar and Lee Roads to purchase cigarettes. Jackson, who was 62 years

old at the time of the incident, testified it took him longer than might be expected to walk

to the store because he walks with a cane; he estimated that it took him 20-25 minutes.

Jackson testified that he was near the drugstore when he was approached by two “young

men.” According to Jackson, one juvenile wore a brown coat with “fur” trim around the

collar and a fur-lined hat with ear flaps. The other juvenile had light skin and wore a

white t-shirt and black “hoodie.” Jackson testified that the area outside the drugstore

was well-lit and he got a good look at the juveniles and their clothing. They were

standing about “two steps” from him when one of the young men asked Jackson, “old

school, you got any money?” Jackson replied that he did not, and the two young men

turned to talk to each other. Jackson testified that instead of proceeding inside the store,

he turned and started walking home. He explained that he tried to walk home as quickly

as he could with his cane, but the young men followed him, watching him from the other

side of the street and keeping a slow pace with him. Jackson testified that he looked

around for police or anyone who could help him, but did not see anyone. He turned onto Silsby when, two to three houses before his home, the young men approached him a

second time. One of the juveniles, later identified by Jackson as G.B., said “old school,

do you have any money?” The young man then ripped Jackson’s necklace off his neck.

{¶ 4} Jackson testified that when the young man “snatched” his necklace off his

neck, Jackson was looking right at him. After the juvenile took Jackson’s necklace, the

other young man opened his sweatshirt and showed Jackson his gun, which was sticking

out of his waistband. Jackson described the gun as a nickel-plated revolver. The

young man demanded Jackson’s rings and told him, “I should have popped you, old

school,” which Jackson took to mean that the juvenile was saying he should have shot

him.

{¶ 5} Jackson testified he was scared he would be shot, so he gave the young men

his two rings, including his wedding ring. The young men fled, running back towards

Lee Road. According to Jackson, the entire incident lasted about two minutes.

Jackson yelled for his wife, who called the police on her cell phone.

{¶ 6} When the police arrived, Jackson described the juvenile who took his

necklace as having “fur on his coat and his hat * * * he had like wool, but it was on the

collar and inside, you know, the label. You know, the inside * * * lining or whatever

you call it.” The police informed Jackson that they had someone in custody and took

Jackson and his wife to identify the suspect.

{¶ 7} Jackson told police that the juvenile they had in custody, G.B., was the

assailant who took his necklace. He testified he recognized G.B.’s face, hat, and coat. After identifying G.B., the police took Jackson to look at ten to 12 more suspects they had

detained in the area, but Jackson did not identify any of them as one of his assailants.2

{¶ 8} In court, Jackson identified G.B.’s hat and coat as the same his assailant

wore and identified G.B. as the youth who had taken his necklace. Jackson admitted he

takes multiple prescription pain medications every day, but argued he had not consumed

any pills in the few hours before the robbery.

{¶ 9} On cross-examination, Jackson conceded he had not told police about the

first encounter he had with the two juveniles outside CVS.

{¶ 10} Officer Matthew Cinader of the Cleveland Heights Police Department

testified he responded to the scene of the robbery. Officer Cinader had received a

description from dispatch that one of the assailants was wearing “a brown coat with fur

around it, some blue jeans.” Officer Cinader could not remember if dispatch’s

description of the suspect included a fur hat with ear flaps, but testified Jackson told him

one of the assailants was wearing a fur hat. When Jackson arrived to where the suspect

was detained, he stated “that’s him right there.”

{¶ 11} Lieutenant Sudyk testified that the call of a robbery in progress came in at

11:47 p.m. One suspect was said to be wearing a brown jacket with fur around the

collar and jeans. Lt. Sudyk testified that three to five minutes after he received the

information, he saw a young man matching the description of one of the assailants

No additional information was ever obtained about the second assailant. 2 walking westbound on the south side of Cedar Road, towards Lee Road. When the

officer approached the young man, the juvenile cooperated and was handcuffed and

patted down. The lieutenant searched G.B. for weapons and looked for the stolen

jewelry, but found only a cell phone and charger.

{¶ 12} The lieutenant explained to G.B. that a robbery had occurred in the area and

G.B. matched the description of “a black male wearing a brown jacket with a fur collar

and jeans.” G.B. told the lieutenant he had been at his girlfriend’s house and was on his

way to the bus stop to catch a bus home to Maple Heights. Lt. Sudyk apprehended G.B.

about 100 feet from the bus stop, which was about a half-mile from where the robbery

had occurred.

Defense’s Evidence

{¶ 13} R.L., G.B.’s girlfriend, testified that G.B. arrived at her house between 7:00

p.m. and 7:30 p.m. He helped her parents carry their groceries inside. According to

R.L., G.B. stayed at her house until 11:45 that evening watching a Cleveland Cavaliers

basketball game and then left to catch the 12:01 a.m. bus back home. She explained she

remembered the time her boyfriend left because she looked at the clock on the cable box.

{¶ 14} R.L.’s grandmother, Betty Cowans, testified that G.B. was still at the house

at 11:35 p.m. when she went downstairs to get a glass of water. She was certain of the

time because she looked at her cable box while watching television. {¶ 15} R.L.’s father, Marvin Leek, testified that at 11:31 p.m., he told his daughter

it was time for G.B. to leave. R.L.’s mother, Tonya Cowans, testified that G.B. was at

her house that evening to watch a basketball game with her daughter. She testified that

she woke up her husband up at 11:30 p.m. and told him to tell G.B. to leave because she

(Tonya) was getting tired and wanted to go to bed. She explained that the rule in the

house was that boys had to leave before she went to bed. She called out to her daughter

around 11:45 p.m. to see if G.B. had left yet, and R.L. replied “he’s at the door now.

He’s leaving now.” Cowans testified she was sure that G.B. was at her house the entire

evening.

{¶ 16} R.L.’s cousin, testified he lives in the basement of R.L.’s house and went

upstairs to talk with G.B. and R.L. throughout the game, and G.B. was at the house the

entire evening. He testified that G.B. left the house around 11:45 p.m.

{¶ 17} G.B. testified he was in the 11th grade at Maple Heights High School and

had never been suspended from school, convicted of a crime, owned or carried a gun.

He testified he frequently visited his girlfriend in Cleveland Heights and usually took the

bus to get there. On April 9, 2010, he took the bus to R.L.’s house; the bus dropped him

off around 6:40 p.m. He walked to her house and arrived at the same time as her

parents. He helped her parents carry the groceries inside.

{¶ 18} G.B. testified that he sat on the couch and watched the basketball game with

R.L. He left her house at exactly 11:43 p.m., after her father told him to leave. He

walked down her street, Goodnor, and turned right on Cedar. As he was walking past Pizza Hut, a police officer pulled into the parking lot, pulled out his gun, and ordered him

to the ground. G.B. complied, was handcuffed, and checked for weapons. He testified

he told the officer he did not commit the robbery and did not know who did.

{¶ 19} The trial court adjudicated G.B. delinquent of the single count in the

complaint with firearm specifications and sentenced him to two years at the Ohio

Department of Youth Services.

{¶ 20} G.B. now appeals, raising three assignments of error for our review:

“I. The trial court erred when it denied [G.B.’s] motion to dismiss the complaint when the evidence presented to the trial court supported a finding of innocence, not an adjudication for aggravated robbery with a gun specification.

“II. [G.B.] was denied his right to due process and a fair trial when the trial court permitted pretrial identification testimony that was the product of unduly suggestive show-up made under highly suggestive conditions.

“III. [G.B.] was denied his right to the effective assistance of trial counsel as

guaranteed by the Sixth and Fourteenth Amendments to the United States

Constitution and Section 10, Article I of the Ohio Constitution when counsel failed

to move the court to suppress [sic] [G.B.’s] pretrial identification and did not

request the court to appoint an eyewitness-identification expert to assist in [G.B.’s]

defense.”3

Manifest Weight of the Evidence

G.B. filed two successive appeals, Cuyahoga App. Nos. 96169 and 96279, which he stated 3

had to do with trial court decisions denying his request to correct the record in the case. We consolidated all three appeals, but G.B. states that the issues surrounding the lower court record have been resolved; therefore, he is only raising issues that relate to the underlying adjudication. {¶ 21} In the first assigned error, G.B. argues that the trial court erred in

adjudicating him delinquent.

{¶ 22} The same standard of review for manifest weight challenges applies to

juvenile and adult criminal matters. In re G.R., Cuyahoga App. No. 90391,

. In determining whether a conviction is against 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 witnesses and determine whether, in

resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.” State v. Otten (1986),

,

. A weight

of the evidence challenge indicates that a greater amount of credible evidence supports

one side of the issue than supports the other. State v. Thompkins,

,

,

. Further, when reversing a conviction on the basis

that the conviction was against the manifest weight of the evidence, the appellate court

sits as the “thirteenth juror” and disagrees with the factfinder’s resolution of the

conflicting testimony.

Therefore, this court’s “discretionary power to grant a new

trial should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction.” State v. Martin (1983),

,

, paragraph three of the syllabus.

{¶ 23} To support his contention that the trial court erred in adjudicating him

delinquent, G.B. points out that he has no prior juvenile record and supporters wrote letters to the court on his behalf; five alibi witnesses testified he was at the Leek’s house

during the time the robbery occurred; R.L. lived in the area of the robbery, which

explained why G.B. was in the area of the drugstore; he maintained his innocence; and the

identification was tainted by a cross-racial identification and the fact that the victim was

elderly and scared.

{¶ 24} G.B. testified that he was at R.L.’s house watching a basketball game from

7 or 7:30 p.m. until 11:45 p.m. G.B. left to catch the 12:01 a.m. bus to return to his

house in Maple Heights. R.L., her parents, cousin, and grandmother all substantiated

G.B.’s testimony, testifying that G.B. was with R.L. the entire evening and left the house

around 11:45 p.m.

{¶ 25} Although Jackson testified he got a “good look” at his assailants, it was not

until trial that he mentioned that his assailants first approached him outside CVS and

followed him home. In the statement Jackson gave to police, the initial contact he

claimed to have had with his assailants was on Silsby near his house, not near the CVS.

Moreover, it was dark outside and Jackson admitted being very afraid. Jackson further

testified that the only lights where the robbery occurred were one streetlight a couple

houses away and one across the street.

{¶ 26} Jackson testified that he looked into his assailant’s eyes when the juvenile

took his necklace, but the encounter was brief and Jackson was unable to describe

anything other than the assailant’s coat and hat to police. {¶ 27} We also take into account that G.B. was arrested blocks from the crime

scene, on Cedar Road, near and walking towards the bus stop. If we are to believe the

state’s version of events, if G.B. had been running towards Lee Road after the robbery

then it would have been unlikely that G.B. could have run or walked from Silsby Road to

Lee Road, north on Lee Road to Cedar Road, down Cedar Road, and then turned around

so as to be walking in the opposite direction within the three- to five-minute time frame

between when the call of the robbery came in and when the lieutenant detained G.B.

We further note that G.B. complied with police commands and immediately told police he

had been at his girlfriend’s house, and the police did not recover any of the stolen

property or a weapon from him. Moreover, the description Jackson gave to police did

not match G.B. as the coat G.B. was wearing was lined with fleece, not with fur.

{¶ 28} Based on the specific facts of this case, we find that this is the rare case

where the evidence weighs heavily against G.B.’s adjudication of delinquency; therefore,

the trial court’s adjudication of delinquency was against the manifest weight of the

evidence.

{¶ 29} The first assignment of error is sustained. Because the first assignment of

error is dispositive of this case, we need not reach the second and third assignments of

error. See App.R. 12(A)(2).

{¶ 30} Accordingly, judgment is reversed and the case is remanded for a new trial.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court 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.

LARRY A. JONES, JUDGE

MELODY J. STEWART, P.J., and COLLEEN CONWAY COONEY, J., CONCUR