[Cite as In re C.G.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97950

IN RE: C.G.

A Minor Child

[Appeal by the State of Ohio]

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Common Pleas Court Juvenile Court Division Case No. DL 11114359

BEFORE: S. Gallagher, J., Stewart, P.J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: November 15, 2012 ATTORNEYS FOR APPELLANT

Timothy J. McGinty Cuyahoga County Prosecutor

By: Brian Hoffman Assistant Prosecuting Attorney 9300 Quincy Avenue, 4th Floor Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

For C.G.

David S. Bartos 20220 Center Ridge Road Suite 320 Rocky River, OH 44116

For Guardian Ad Litem

William T. Beck 2035 Crocker Road Suite 201 Westlake, OH 44145 SEAN C. GALLAGHER, J.:

{¶1} Plaintiff-appellant, the state of Ohio, appeals from the juvenile court’s denial

of its request for mandatory bindover of defendant-appellee, C.G. Without issuing an

opinion, the trial court found probable cause did not exist to believe C.G. committed the

offense of aggravated robbery in violation of R.C. 2911.01(A)(1).1 For the reasons that

follow, we affirm.

{¶2} The state argues in its sole assignment of error that the trial court erred in not

ordering transfer because the victim provided credible evidence of every element of the

offense of aggravated robbery to support a finding of probable cause to believe C.G.

committed the offense. Because the trial court did not provide the reasoning behind its

decision, C.G. focuses primarily on the alleged disparities arising from the testimony of

the state’s witnesses as justification for the court’s decision. The state called two

witnesses, the victim and a detective who investigated the robbery. The defense called

two witnesses as well, C.G.’s girlfriend and his social worker.

{¶3} After grocery shopping on July 19, 2011, Julia Ivanova drove to her home

located on Random Street in the “Little Italy” section of Cleveland. She parked her car,

and observed two males on the side of the street. Ivanova went up the stairs of her

1 The juvenile court found no probable cause, and yet did not dismiss the complaint against C.G. Rather, the court ordered that the matter proceed to adjudication pursuant to Juv.R. 30(E). Compare In re D.T.F., 10th Dist. Nos. 05AP-03 and 05AP-04,

(juvenile court dismissed complaints after determining there was no probable cause). See also fn. 3. building, and one of the males (“Male 1”) approached her and asked for directions to

Case Western Reserve University. He meanwhile pulled out a gun from his pants pocket

with the help of a second male (“Male 2”) who had approached Ivanova from behind.

Male 1 put the gun to Ivanova’s head, and said, “give me your wallet.” She set down

everything she was holding at the time: two grocery bags, a cell phone, a credit card, her

driver’s license, and her car keys.

{¶4} Ivanova described the gun as a black, dark gray revolver. Ivanova did not

have a wallet or purse. She, therefore, gave the males her groceries, cell phone, and a

credit card. The males picked up and returned the driver’s license and car keys to her

before they left. After the incident, Ivanova went to a neighbor’s home where she called

911 to report the incident. She eventually recovered her cell phone from the police.

{¶5} The robbery took place at approximately 10:00 p.m., or a little bit after 10:00

p.m. Although it was dark, there was a decent light near the entrance to her building.

Ivanova could see “very well.”

{¶6} Ivanova identified C.G. in court as Male 1, the male who held the gun to her

head. There was no hesitation in her testimony that C.G. was Male 1. Ivanova

identified him by his eyes, lips, and face. Ivanova explained that she could identify him

“[b]ecause I looked at him when he was pointing the gun and I was looking to see if I

would see some mercy in his eyes for a second and for a few minutes and that’s why I

looked as [sic] his face.” She also recognized him as the taller of the two males. Ivanova estimated that Male 1 was an arm’s length away when he held the gun to her

head.

{¶7} Defense counsel questioned Ivanova about her interview with a police

officer. During that interview, Ivanova described Male 1 as being “very tall” and about

170 pounds. She stated that her husband was six feet three inches tall, and that Male 1

was probably taller than her husband. The height of Male 1 provided to 911 was five

feet eleven inches. When questioned about this discrepancy, Ivanova explained that “I

was shocked” when providing the first description as she was not ready to answer the

question about Male 1’s height. She, therefore, did not describe Male 1 during the 911

call as taller than her husband.

{¶8} As to Male 2, Ivanova initially described him to the police as five feet eight

inches tall and about 160 pounds. During cross-examination, she described him as

shorter than Male 1, “maybe six foot.” Additionally, during direct examination, Ivanova

stated both males were lighter skinned; during cross-examination, she testified Male 2

was “a lot lighter skinned” than Male 1. Ivanova described both males as being in their

early twenties. Because neither male had his head covered, Ivanova could see that they

both had very short black hair.

{¶9} Defense counsel asked Ivanova why she told the detective in a second

interview that Male 2 was taller than Male 1. She responded that this was not accurate

as Male 2 was shorter than Male 1 and “I do know that [the police] know that the second

person was shorter.” {¶10} Ivanova went to the police station a few days later where she met with

Detective Kelly to view photos. She testified that the detective presented two sheets of

photos, and indicated the suspect was included in them. Ivanova took approximately 20

minutes to identify C.G. as Male 1, the male with the gun. When questioned why it took

20 minutes, she stated, “I just took my time to make sure that I’m identifying the correct

guy.” Ivanova testified earlier as well that she was sure about her identification of C.G.

{¶11} Ivanova then confirmed that Male 1 did not say anything about the gun

during the incident. There were also no actions taken by him to hurt or strike her with

the gun. She was, however, scared because she “looked into his eyes and I thought that

it could be used.”

{¶12} The state presented Detective Eugina Gray as its second witness. She

testified that she met with Ivanova and her friend, Ms. Tittle, to review text messages

between Ms. Tittle and a person using Ivanova’s stolen cell phone. Det. Gray obtained

Ivanova’s permission to run a trace on her phone through the U.S. Marshals Service.

{¶13} On July 21, 2011, Cleveland police officers and members of both the

Bureau of Alcohol, Tobacco, and Firearms and the U.S. Marshals Service set up a

perimeter around the phone’s suspected location in the 3500 block of East 74th Street and

Union Avenue. The marshals identified a vehicle leaving a house as containing the cell

phone. Det. Gray and another detective followed the car and made a traffic stop at Fleet

Avenue and Broadway Avenue. The detectives recovered Ivanova’s cell phone in the

possession of Diandre Lott, one of the car’s occupants, and arrested him for receiving stolen property. Lott claimed to have bought the cell phone for $40 from a “crack

head.”

{¶14} Det. Gray thereafter obtained a search warrant for the cell phone. Phone

records from the day before and day after the robbery revealed outgoing calls to two

telephone numbers right after the robbery. Det. Gray searched the numbers and found

they were attached to the same house where Lott left with the cell phone. According to

Det. Gray, one of the numbers was that of C.G., and the other number was that of Etoya

Jackson, the foster parent to both Lott and C.G. The telephone records also showed that

one of the phone numbers called using the stolen cell phone listed back to a Jayvion

Walden as well.

{¶15} Det. Gray next explained how she identified C.G. and Lott as suspects:

A. I did a computer check on the cell phone, on the outgoing numbers. I learned who the phone numbers were listed to. Created the suspect in question, the male that came back to the cell phone number fit the general description of the description that the victim had provided. I created a photo lineup to the victim.

Q. How many suspects did you have at that time?

A. Two suspects.

Q. Who were the two suspects?

A. Diandre Lott and [C.G.].

{¶16} The court questioned Det. Gray further:

Q. How could developing a photo list and address give you information that the person listed on the address met a suspect description? A. When I did a computer check of the cell phone number, of a phone number, that phone number was listed back to a specific person in the Cleveland Police Computer System. I checked photos of that person and was able to generate a photo lineup.

Q. Where was the photo derived from?

A. The photos that I used were from OLEG, which is the Ohio Law

Enforcement Gateway. Everybody who has a driver’s license [or state

I.D.] picture taken is on this cite [sic].

{¶17} Defense counsel questioned Det. Gray:

Q. [Did] you check to determine whose phone that actually was listed in through any telephone records. I mean, you were able to subpoena the phone records. You didn’t subpoena who it belonged to, who paid the bill?

A. No, sir.

Q. So you have no idea who paid the bill or who was actually listed with the phone company, correct?

A. No, sir. Q. Okay, so essentially it came back to this house. Not that it really came back at any one person because it came back to two of the people that were living there, correct?

A. Correct.

Q. Okay. And you indicated well it couldn’t be the [foster] mom, but we have this [C.G.] there, correct?

A. Correct.

***

Q. [A]nd from that you gleaned that he should be in the photo array, correct? A. Based upon what the victim had told me, yes.

{¶18} Det. Gray testified that she knew from the initial police report that Ivanova

described the height of the robbers as five feet eleven inches, and five feet eight inches.

When defense counsel questioned Det. Gray as to why she identified suspects who were

taller, she stated that during her interview with Ivanova, Ivanova described them as being

taller than as described in the 911 call.

{¶19} Further inquiry revealed that another person, Walden, lived in the house

with C.G., Lott, and Jackson. Det. Gray explained that Walden’s photo was not

included in the photo arrays shown to Ivanova. If Ivanova had not identified C.G. from

the photos, her next step would have been to show a third array that included Walden’s

photo. Although Lott’s photo was included in the photo arrays presented to Ivanova,

Ivanova did not identify him as Male 2.

{¶20} The court questioned Det. Gray further about her interview with Ivanova:

Q. What did [Ivanova] tell you happened?

A. She told me that she was going home. She was in her parking lot getting ready to enter the building. She saw a male walk up and she said that this male was asking her [for] directions to the Case Western Reserve University. When she was talking to him, giving him directions, another male approached her from a different direction. And she described this male as taller and that he had tighter pants on and he was fumbling trying to get a gun out of his pockets.

Ma’am, I can’t remember the exact words that she explained to me. She said when she told them she didn’t have money the shorter of the two males became angry and he was trying to help the taller of the two males get the gun out of his front pocket. That male became even more angered. She was carrying bags of groceries and she set them on the ground. ***

Q. So am I to understand from the description that she gave you, the second, taller suspect, who was fumbling to get a gun out of his pocket, is that the same line?

A. Yes, ma’am.

Q. Approached after the first person asked for directions?

A. Yes, ma’am.

{¶21} As part of her investigation and based on Ivanova’s description of the

incident, Det. Gray identified Lott as a suspect for the shorter male who first asked

Ivanova for directions. She identified C.G. as a suspect for the taller, second male who

later approached Ivanova.

{¶22} Det. Gray wrote the follow-up to the original police report. She testified

during recross-examination in connection with the report:

Q. Could you read for me starting from there down to about here.

A. Ivanova stated while parking her car she observed a young black early 20’s man walking southbound on Random from Mayfield. This male approached her as she started to enter her apartment building. This male hailed her attention by asking [for] directions while another male approached from the opposite direction.

Q. Now, let me stop you there. Do you know who she was referring to when you wrote that report. Who was the first person, who did you indicate was the first person?

A. From the description I received from her the first person was, of course, the first suspect Diandre Lott or I can’t say it was Diandre Lott. It was a first suspect.

*** A. Okay. While looking around as if looking for surveillance cameras. The first male then attempted to pull a handgun from his front pants pocket.

Q. Hold on one second. And you believed that to be Diandre Lott?

A. I believed it was at the time.

***

Q. If you can skip down to the second circle where I have it marked.

A. Ivanova described both males age as early 20’s. The second male had lighter complexion than the first. He appeared taller and had both ears pierced with large diamond earrings.

Q. So your idea was that my client was the second person?

A. Yes. Q. Who is taller?

A. Yes.

Q. Who didn’t have the gun?

A. He assisted the first male — you’re right. He assisted the first male in getting the gun out.

Q. It also indicates that he has two pierced ears?

***

Q. Okay. So you do realize my client has only one pierced ear?

A. Yes.

***

THE COURT: [S]o Detective Gray, am I to understand that from your report you indicated that this shorter one who approached the victim first was the one who had the gun because it was the taller one who you suspected was [C.G.] assisted him in trying to get the gun out of his pocket? A. After reading my report, ma’am — Could I read my report again, if you don’t mind?

THE COURT: Actually, I do. In part I will say this for the report because as we try to identify one versus the other, the taller versus the [shorter], the different skin tones, back and forth, back and forth, you know, the victim did that too. So if you have some confusion I totally understand it because guess what I experienced I think the same thing.

***

[W]hat was said about the earrings?

A. That’s just something she told me.

THE COURT: The person who did or did not have the gun, who was taller who was shorter. What did the person with the earrings do?

A. I would have to look at that report again. I didn’t remember the earrings until I read it in the report this time.

THE COURT: She didn’t remember the earrings either. * * *

A. The second male had a lighter complexion than the first, he appeared taller, and had both ears pierced with large diamond earrings. That’s just what she told me.

(Emphasis added.)

{¶23} The defense presented C.G.’s girlfriend, Adrianne Michelle Dykes, as its

first witness. She testified that she stayed at Jackson’s house from July 18 through July

21, 2011. Dykes described C.G.’s hair as having a blond-like streak patch in the front of

his head. His hair was a “high top” about two to three inches in height. When the trial

court asked her whether C.G. had the streak in his hair from July 18 through the day she

left Jackson’s house on July 21, Dykes stated, “yes, ma’am.” {¶24} During cross-examination, Dykes testified Lott was not at Jackson’s house

at any time while she was there. When questioned by the court as to whether anyone

else was in the house, Dykes responded that Walden was there. She described Walden

as “light skinned, tall, he’s probably about six foot exactly.” When questioned about

whether Walden and C.G. wear earrings, Dykes responded that Walden wears earrings,

but not C.G., even though he has one pierced ear.

{¶25} Dykes pulled up a picture of C.G. on her cell phone, and testified as follows

when questioned by the prosecutor and trial court:

Q. You’re not sure when that picture was taken?

A. No, I’m not.

Q. But you said you [copied] it on July 24th?

A. Yes.

THE COURT: Would you describe it for me please?

A. It’s a picture with [C.G.] he has his shirt off. He has a hat on, with it to the back so his blonde is showing in the front and that’s it. You can’t see his whole body.

Q. And his hair is quite short, correct?

A. It’s the length that I said about three or two inches high.

{¶26} For its second witness, the defense introduced Tonya Spraggins, a social

worker who supervises C.G. She confirmed that in early July, C.G. had a blonde streak

about two to three inches wide from his forehead to the top of his head. Spraggins testified that C.G. still had the blonde streak when he appeared for a court hearing on

August 11, 2011:

A. [W]e had another court hearing where his hair was still dyed that color.

Q. When?

A. August 11th 2011. His hair was blonde on and around his birthday[, July 18]. When I saw him again it was still blonde when we went to the court hearing.

***

Q. [A]t some point he got a hair cut?

A. Yes.

Q. Do you know where he got the hair cut?

A. While he was detained at the Detention Center.

{¶27} During cross-examination, the prosecutor questioned Spraggins further on

the timing of C.G.’s hair coloring:

Q. But you don’t know if it was dyed before [his birthday]?

A. The foster parent was in violation prior to his birthday, which was on

the 18th, informing me that she had dyed his hair without our permission.

So it was already dyed. I just didn’t see it on that particular day, the

incident in question but it was still that color.

{¶28} R.C. 2152.12(A)(1)(b), provides as follows:

(A)(1)(b) After a complaint has been filed alleging that a child is a delinquent child by reason of committing a category two offense, the juvenile court at a hearing shall transfer the case if section 2152.10 of the Revised Code requires the mandatory transfer of the case and there is probable cause to believe that the child committed the act charged.

{¶29} In In re M.P.,

,

,

, the

Supreme Court of Ohio stated:

When the state requests a mandatory bindover, the juvenile court

determines whether the child is eligible for mandatory bindover according

to the child’s age, the nature of the act, and other circumstances, and

whether probable cause exists to believe that the juvenile committed the act

charged. R.C. 2152.10(A) and 2152.12(A)(1); Juv.R. 30(A). If the child is

eligible for mandatory bindover and if probable cause exists to believe that

the juvenile did commit the acts charged, the only procedural step

remaining is for the court to enter the order of transfer. Juv.R. 30(B).

Id. at ¶ 11.

{¶30} We find initially that the acts charged in the complaint in this matter would

constitute the offense of aggravated robbery, if committed by an adult, a category two

offense. Further, it was stipulated that C.G. was 17 years old at the time of the offense.

The charge therefore brings the case within the mandatory bindover provisions. R.C.

2152.10(A) and 2152.12(A)(1); Juv.R. 30(A).

{¶31} The probable cause standard for mandatory bindover requires the state to

provide credible evidence of every element of an offense to support a finding of probable

cause to believe that the juvenile committed the offense before ordering mandatory

waiver of juvenile court jurisdiction pursuant to R.C. 2152.12(B). State v. Iacona,

,

,

. Probable cause in this context is

not guilt beyond a reasonable doubt; it is evidence that raises more than a suspicion of

guilt. In re A.J.S.,

,

,

. This

standard requires the juvenile court to “evaluate the quality of the evidence presented by

the state in support of probable cause as well as any evidence presented by the respondent

that attacks probable cause.” Iacona at 93. Our review of the juvenile division’s

decision is mixed: we defer to the court’s credibility determinations by reviewing for an

abuse of discretion, but we conduct a de novo review of the legal conclusion whether

there was probable cause to believe that the juvenile committed the charged act. In re

A.J.S. at ¶ 1.

{¶32} Pursuant to Iacona, the juvenile court is required to evaluate the quality of

the evidence presented by the state in support of probable cause as well as any evidence

presented by C.G. that attacks probable cause. Iacona at 93. The trial court questioned

Ivanova at length about the timing of events on July 19, including when she set down the

groceries and other items in her hands. Her testimony varied from when the gun was put

to her head to when she first spotted the second male, but not yet the gun. The court also

questioned Det. Gray about how Ivanova described the timing of setting down the items.

We do not, however, base our decision on this alleged disparity in Ivanova’s testimony as

she reasonably explained, “[i]t kind of all happened like at the same time.”

{¶33} The quality of the state’s evidence was inferior, however, as it relates to

Ivanova’s identification of C.G. as Male 1. According to Ivanova, the taller of the two males approached her first to ask for directions. The taller of the two males also pulled

out the gun with the help of the shorter male. According to Det. Gray, who interviewed

Ivanova and wrote the follow-up to the police report, the shorter of the two males

approached Ivanova first to ask for directions. The taller of the two males appeared

second, and he helped the shorter male pull out the gun from the shorter male’s pocket.

While during direct examination Det. Gray testified that the taller of the two males had

the gun, she testified during both direct and cross-examination that it was the shorter of

the two males who approached Ivanova first. She also later testified that Ivanova told

her the second male was taller, and had both ears pierced with large diamond earrings.

{¶34} Ivanova testified as an eyewitness whereas Det. Gray relayed information

second-hand from memory of the interviews and the police report. The state refers to

the trial court’s comments about the confusion created by the victim’s and detective’s

testimony on skin tones and height. The state argues that pursuant to In re A.J.S.,

,

,

, because the trial court was confused

as well, it should have solely relied on Ivanova’s identification as Male 1 and ordered

bindover of C.G.

{¶35} In In re A.J.S., the juvenile court made no factual findings in its entry

denying transfer. The court, however, expressed it could not recall the testimony about

the positions of the persons at the scene of a shooting, and stated it would need to have

that information in order to determine whether A.J.S. acted with purpose to kill. Rather than review the state’s evidence concerning A.J.S.’s position, the court abused its

discretion by ignoring this evidence. Id. at ¶ 56-27.

{¶36} Unlike the court in In re A.J.S., the trial court here did not ignore the

evidence when commenting on the confusion created by the state’s evidence. In other

words, it was the quality of the state’s evidence that created the confusion, not the trial

court’s failure to recall or review the evidence. We, therefore, reject the state’s

argument that the court should have ordered the case to the general division of the

common pleas court based solely on Ivanova’s identification testimony.

{¶37} Moreover, C.G. presented evidence through defense witnesses that his hair

had a two- to three-inch-wide blonde streak from his forehead to the top of his head from

at least July 18 through August 11. C.G.’s hair was also at least two to three inches in

height until after he was detained in the detention center as testified to by defense witness

Spraggins, C.G.’s social worker. Ivanova testified, however, that both Male 1 and Male

2 had short black hair on July 19.

{¶38} Finally, C.G. presented evidence that the taller of the two males had two

pierced ears and wore large diamond earrings on July 19. Det. Gray confirmed that C.G.

has only one pierced ear, as testified to by defense witness Dykes as well.

{¶39} Here, the trial court did not specifically find the state’s identification

evidence was not credible. From the questions posed by the trial court to the witnesses

for both the state and defense, however, it is apparent that the court questioned the credibility of the state’s eyewitness and her identification of C.G. as Male 1.2 Because

the trial court is in a much better position to assess credibility, we must defer to that

court’s credibility determination. In re D.T.F., 10th Dist. Nos. 05AP-03 and 05AP-04,

; In re Cline, 2d Dist. No. 19082,

; compare Caldas v.

Caldas, 2d Dist. No. 20691,

; State v. Larew, 7th Dist. No. 98-CA-168,

.

{¶40} Ivanova was the state’s only eyewitness. If her testimony at the probable

cause hearing was not credible, there is no other evidence to establish every element of

the offense necessary to support a finding of probable cause. The trial court did not,

therefore, abuse its discretion in finding the absence of probable cause.

{¶41} The state’s sole assignment of error is overruled.

{¶42} The judgment of the trial court is affirmed.3

2 The juvenile court correctly noted that alibis and motions to suppress are not to be addressed at a probable cause hearing. We are aware of the inferences in this case about an unduly suggestive photo array and identification procedure. Where the credibility of a sole eyewitness is so intertwined with how he or she identifies a suspect through an alleged unduly suggestive procedure, a more appropriate vehicle for determining the reliability of the identification is through a motion to suppress.

3 This is a unique case where the victim identified the defendant in court as the assailant, and yet the juvenile court concluded there was no probable cause to relinquish jurisdiction. See fn. 2. This was a mandatory, not discretionary, bindover proceeding. Compare In re J.S., 8th Dist. No. 92504,

(juvenile court did not abuse its discretion in retaining jurisdiction in a discretionary proceeding because the evidence was sufficient to establish probable cause to believe appellant committed a lesser offense). Our affirmance of the juvenile court’s ruling leaves us in a quandary about C.G. and the next procedural step in this matter because the juvenile court neither dismissed the matter for lack of probable cause nor ordered bindover based upon probable cause. The questionable status of this case is not, therefore, a moot question that disallows an advisory It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court, juvenile court 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.

SEAN C. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, J., CONCURS; MELODY J. STEWART, P.J., CONCURS IN JUDGMENT ONLY

opinion. See Schwab v. Lattimore,

,

,

(1st Dist.); State v. Bistricky,

,

(8th Dist. 1990). Although the Double Jeopardy Clause of the Fifth Amendment applies to juvenile proceedings, In re S.J.,

,

,

, citing In re Cross,

,

,

, ¶ 23-24, that protection is only absolute upon the juvenile court’s adoption of the magistrate’s decision. In re T.W., 8th Dist. No. 88818,

, citing United States v. Bearden,

(6th Cir. 2001). See Juv.R. 40(D)(4). Double jeopardy does not, therefore, bar an adjudicatory proceeding when the state dismisses and refiles a complaint following remand. See In re J.S., 8th Dist. No. 94410,

. See also Juv.R. 22(B) (any pleading may be amended at any time prior to the adjudicatory hearing); In re A.J.S.,

,

,

, syllabus (juvenile court’s denial of mandatory transfer is the functional equivalent of the dismissal of an indictment).