In re T.N.R. , 2023 Ohio 85 ( 2023 )

[Cite as In re T.N.R., 2023-Ohio-85.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE T.N.R. :
: No. 111367
A Minor Child :
:
[Appeal by T.N.R., Minor Child] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 12, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL-21-107970
Appearances:
Susan J. Moran, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jacob Williams, Assistant Prosecuting
Attorney, for appellee.
MARY J. BOYLE, J.:
Appellant-T.N.R. challenges her juvenile adjudications for
aggravated robbery, robbery, kidnapping, and felonious assault. T.N.R. argues that
there is insufficient evidence to sustain her adjudications and that her adjudications
are against the manifest weight of the evidence. She further argues that she was
denied effective assistance of counsel when defense counsel did not move to
suppress her videotaped statement to the police. Finding that the filing of a motion
to suppress would not have changed the outcome of trial and that there is sufficient
evidence to sustain her adjudications, we affirm.
I. Facts and Procedural History
In September 2021, T.N.R. (d.o.b. 09/06/03) was charged in a ten-
count complaint in the Cuyahoga County Court of Common Pleas, Juvenile Division,
for acts, which if committed by an adult, would constitute felonies ranging from the
first degree to the fifth degree. Count 1 charged her with aggravated robbery. Counts
2-4 charged her with robbery. Count 5 charged her with kidnapping. Count 6
charged her with felonious assault. Count 7 charged her with theft. Count 8 charged
her with unauthorized use of property. Count 9 charged her with
telecommunications fraud.1 Count 10 charged her with improperly handling a
firearm in a motor vehicle.
T.N.R., who was 17 years old at the time of the incident, was charged
under a complicity theory for the conduct of her boyfriend, Michael Hardiman
(“Hardiman”), for the aggravated robbery of Cobra Sparks (“Sparks”), who was
selling T.N.R. marijuana. The matter proceeded to trial, at which the following
evidence was adduced.
1 Each of Counts 1-9 carried both a one- and three-year firearm specification.
Sparks testified that on August 21, 2021, he received a call from a
younger female he did not know asking to meet at an apartment complex parking
lot in Cleveland Heights, Ohio to smoke marijuana. Once Sparks arrived, he called
the female and waited for her. Five to ten minutes later, a female got into the front
passenger’s side of his car. Five seconds later, a male, later identified as Hardiman,
came up to the passenger’s side door. The female then exited the car, and Hardiman
got into the car. Hardiman struck Sparks in the face, cutting his cheek and leaving
a scar. Sparks did not observe what Hardiman hit him with but did testify that
Hardiman was carrying a gun in his hands. He later testified that he did not think
that Hardiman had a weapon but rather “something pretending to be a weapon.”
(Jan. 18, 2022, tr. 24.)
Hardiman then told Sparks to “give him the money,” reaching into
Sparks’s pockets and taking some cash. (Jan. 18, 2022, tr. 23.) Sparks stated that
Hardiman grabbed some cash out of his pocket but most of the money fell back into
his car. Hardiman also took his cell phone. Sparks testified that Hardiman left after
he took the money. He then testified that he did not think that Hardiman actually
got any of his money and that they drove his car for about ten feet and then
Hardiman exited the car. Sparks then volunteered, “I don’t even really know where
the kidnapping come in at because he got out.” (Jan. 18, 2022, tr. 24.)
When questioned about the ten-foot distance, Sparks further testified
saying that he “went in reverse and — and drive. That’s it. About two to five feet.
Like really not nowhere. So that’s when I reversed and went into drive about, yeah,
about five feet and he hopped out.” (Jan. 18, 2022, tr. 25.) When asked by the
appellee, the state of Ohio (“state”), if he wanted to get out of the car at that time,
Sparks replied no because he is paralyzed and in a wheelchair. (Jan. 18, 2022, tr.
25-26.) After Hardiman exited the car, Sparks then drove from the scene and waited
in another parking lot, “recuperating” from the incident for ten to fifteen minutes.
(Jan. 18, 2022, tr. 27.) He then went home. At home, Sparks called the woman he
thought he was meeting and accused her of setting him up. Sparks then decided to
drive back to the same apartment complex to look around and report the incident to
the police.
On cross-examination, Sparks testified that he could not identify the
female who got into his car and that he did not speak to her as she was only in the
car eight to ten seconds. Defense counsel questioned Sparks about his phone and
the Cash App. Sparks testified that he gave Hardiman his Cash App handle while
they were in the car and that money was transferred from his account to an unknown
female’s account.
Cleveland Heights Police Detective Michael Mathis (“Det. Mathis”)
testified that he investigated the case. As part of his investigation, he was able to
create a photo lineup from the apartment complex surveillance footage. From that
lineup, Sparks identified Wynzo Brown (“Brown”) as a party involved in the robbery.
The police determined that Brown was not involved in the robbery, but in an
interview with Det. Mathis, Brown was able identify Hardiman and his nephew from
the photographs. Before law enforcement put out an arrest warrant for Hardiman,
Brown’s sister, Tanya Gatson (“Gatson”), brought Hardiman and T.N.R. to the
police station for an interview on September 9, 2021. Det. Mathis further testified
that T.N.R was arrested after the interview.
Following her arrest, T.N.R. had an asthma episode that necessitated
treatment while being processed in the Cleveland Heights jail, and she was taken to
MetroHealth Hospital. Det. Mathis and Det. Robinson (“Det. Robinson”) followed
T.N.R. to the hospital and interviewed her while she was in a hospital bed. The
interview was recorded and played for the court. The video depicts Det. Mathis and
Det. Robinson in T.N.R.’s hospital room while she is receiving a breathing treatment
for her asthma attack.
T.N.R. did not have a parent or guardian present during the
questioning. She had turned 18 years old three days prior to the interview. The
video first depicts T.N.R. being read her Miranda rights and then signing a waiver.
T.N.R. initially denied any involvement with Sparks or the Cash App. She then
stated that she bought marijuana that she did not like and that Hardiman wanted to
get his money back. The detectives continued to question T.N.R. She told the
detectives that she did not call Sparks and told them to look at her phone records.2
The detectives told T.N.R. that she needed to tell them what happened or she could
end up in prison. They told T.N.R. that the charges were serious and gave her a
notepad to write down what happened. The detectives told T.N.R. that if she told
2Det. Mathis testified that the police never performed a phone dump on T.N.R.’s
phone even though it was sent to the forensic science lab.
them what happened, she would get out of jail in the morning. The detectives told
T.N.R. that they would help her out by planning for her to go to juvenile detention
instead of county jail because she was 17 years old at the time of the incident. T.N.R.
said she would tell the truth as long as Hardiman did not find out.
In the video, Det. Mathis can be heard telling T.N.R. if she did not call
Sparks, then he wanted to eliminate her from the crime. At this point, T.N.R. can be
observed telling the detectives that she was with Hardiman when they pulled into a
gas station. Hardiman exited his vehicle to talk with some females. T.N.R. did not
hear what was said because she was still in the vehicle. The group then drove to
another house where they planned the robbery, but she was not part of the
conversation. The group then drove to the apartment complex where the females
from the gas station were already parked. T.N.R. then stated that Hardiman told
her to go into Sparks’s car and tell him she wanted marijuana. She stated that when
she got into the car, Sparks started flirting with her. Then, suddenly, Hardiman
pulled her out of the car, and T.N.R. walked away and got into another car.
Hardiman drove around with Sparks, and T.N.R. did not know where he went.
When Hardiman returned, he had a car seat cover that he threw away, and the two
of them went inside an apartment in the complex. T.N.R. did not know how much
money Hardiman had, but he split it with the females and Raymond Brown
(“Raymond”). Hardiman gave her two packets of marijuana later. T.N.R. observed
Raymond hand Hardiman a gun at the time of the incident that Hardiman returned
to Raymond afterwards.
The detectives told T.N.R. that her statement helped her immensely
and they wanted to clear her. The detectives also stated that she got caught in
circumstances in which she was with her boyfriend when he did something stupid.
During the interview, T.N.R. can be observed receiving medical treatment, at which
point the interview stopped. After the conclusion of the video, Det. Mathis made an
in-court identification of T.N.R. (Jan. 18, 2022, tr. 56.)
On cross-examination, Det. Mathis testified that law enforcement
believed that T.N.R. set up the incident. He further testified that Sparks’s cell phone
records indicated that he did not receive a call or text from T.N.R.’s phone number,
which confirmed what she told the detectives at the hospital. Det. Mathis further
testified that T.N.R.’s Cash App account was not used to receive any money from
Sparks’s Cash App account. T.N.R. told Det. Mathis that she is scared of Hardiman
and Raymond and that she would tell him the truth as long as they did not find out.
Det. Mathis further testified that Sparks is “a known weed seller in
that area. * * * Everybody knows the guy in the wheelchair is the one that sells the
weed.” (Jan. 18, 2022, tr. 68.) With regard to Gatson, Det. Mathis testified that she
is Jewel’s daughter and Raymond’s mother. The group was at Jewel’s apartment.
Gatson called law enforcement and set up this interview with T.N.R. and Hardiman.
Det. Mathis testified that he believed Gatson coordinated the interview to protect
Raymond.
On redirect examination, Det. Mathis testified that he believed T.N.R.
was more afraid of Raymond and Gatson than Hardiman. He further testified that
Sparks was only cooperative on the first day of the investigation. After that, law
enforcement did not hear from Sparks again until the day of trial.
At the conclusion of the state’s evidence, defense counsel moved for
dismissal of all charges under Crim.R. 29. The trial court granted the motion with
respect to the one- and three-year firearm specifications in each of Counts 1-6 and
8-9, and Counts 7 and 10 were dismissed in their entirety.
After the conclusion of trial, the juvenile court determined that the
state did not prove beyond a reasonable doubt the charges in Counts 8 and 9 and
dismissed those charges. With regard to Counts 1-6, the court adjudicated T.N.R.
delinquent under a theory of complicity, stating that T.N.R.’s
conduct before [the incident] is that you are part of this group. You’re
with them.
Your conduct after is that you are part of this group, you’re with them.
The complicity rule was created to protect innocent bystanders, those
who have no connection to the crime other than being merely present.
You were more than just merely present. And for that reason, the Court
finds that the State of Ohio has been able to establish beyond — proof
beyond a reasonable doubt of each and every element with respect to
the aggravated robbery.
Count 1, as it pertains to [T.N.R.], she’ll be adjudicated delinquent of
that on a complicity argument.
She’ll be adjudicated delinquent, as well, on Counts 2, 3, and 4. Those
are the robberies, felonies of the second degree, Counts 2 and 3. And
then Count 4, the robbery, felony of the third degree.
She is complicit on Count 5, the kidnapping, and Count 6, the felonious
assault.
(Jan. 18, 2022, tr. 106-107.)
The matter was then referred to the Ohio Department of Youth
Services (“ODYS”) for review. At the dispositional hearing on March 8, 2022, the
court acknowledged the ODYS recommendation for probation with a suspended
commitment and T.N.R.’s history with juvenile court, noting an escalation in her
behavior. The court ordered T.N.R. committed to one year at ODYS, up to her 21st
birthday on Count 1 (aggravated robbery). The court ordered that the sentences on
the remaining counts merge with the aggravated robbery. The court also ordered
[A] $1,500 fine on the aggravated robbery. That fine will be suspended.
***
The fine on the kidnapping, again, is 1,500; on the felonious assault,
that is 1,000.
***
All those fines are suspended.
She’s given credit of 47 days.
(Mar. 8, 2022, tr. 16-17.)
It is from this order that T.N.R. appeals, raising the following three
assignments of error for review, which shall be discussed out of order where
appropriate.
Assignment of Error One: The trial court erred by denying
[T.N.R.’s] motion for acquittal pursuant to Ohio Crim.R. 29 when the
state failed to submit sufficient evidence of [T.N.R.’s] complicity.
Assignment of Error Two: [T.N.R.’s] convictions are against the
manifest weight of the evidence.
Assignment of Error Three: [T.N.R.] was denied effective
assistance of counsel and due process as guaranteed by the Fifth, Sixth,
and Fourteenth Amendments of the Ohio and United States’
Constitutions.
II. Law and Analysis
A. Effective Assistance of Counsel and the Motion to Suppress
We first address T.N.R.’s ineffective assistance claim. T.N.R. argues
defense counsel was ineffective for failing to file a motion to suppress her videotaped
statement to police. She contends that she provided her statement to the police only
after she was assured that she would not be prosecuted. She further contends that
without her statement to the police, the state would only have had Sparks’s
testimony, which does not establish any complicity between T.N.R. and Hardiman,
and would have changed the outcome of the case.
1. Standard of Review
To establish ineffective assistance of counsel, T.N.R. must
demonstrate that (1) counsel’s performance was deficient and (2) the deficient
performance prejudiced the defendant so as to deprive her of a fair trial. State v.
Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). The failure to prove either prong of this two-part test makes it unnecessary
for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d 378, 389,
721 N.E.2d 52 (2000), citing Strickland at 697.
With regard to a motion to suppress, the Ohio Supreme Court has
held that the “‘[f]ailure to file a suppression motion does not constitute per se
ineffective assistance of counsel.’” Madrigal at 389, quoting Kimmelman v.
Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Rather, the
appellant must demonstrate that the motion would have “had a reasonable
probability of success” and affected the outcome of the case. State v. Patterson,
2017-Ohio-8318, 99 N.E.3d 970, ¶ 35 (8th Dist.), citing State v. Sanchez, 8th Dist.
Cuyahoga No. 103078, 2016-Ohio-3167; State v. Moon, 8th Dist. Cuyahoga No.
101972, 2015-Ohio-1550; State v. Kirk, 8th Dist. Cuyahoga Nos. 95260 and 95261,
2011-Ohio-1687, ¶ 46 (“Failure to file a motion to suppress constitutes ineffective
assistance of counsel only if, based upon the record, the motion would have been
granted.”). “‘Where the record contains no evidence which would justify the filing
of a motion to suppress, the appellant has not met [their] burden of proving that
[their] attorney violated an essential duty by failing to file the motion.’” 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). Even when
there is some evidence in the record to support a motion to suppress, “‘an appellate
court presumes that defense counsel was effective if defense counsel could
reasonably have decided that the motion to suppress would have been futile.’” State
v. Leiter, 12th Dist. Warren No. CA2016-12-104, 2017-Ohio-8537, ¶ 37, quoting
State v. Dominguez, 12th Dist. Preble No. CA2011-09-010, 2012-Ohio-4542, ¶ 20;
see also State v. Edwards, 8th Dist. Cuyahoga No. 69077, 1996 Ohio App. LEXIS
3033, 4-5 (July 11, 1996), citing State v. Martin, 20 Ohio App.3d 172, 485 N.E. 717(1st Dist.1983).
2. T.N.R.’s Videotaped Statement to the Police
We begin our analysis by addressing whether T.N.R. would have been
successful on a motion to suppress her videotaped statement to the police. T.N.R.
does not dispute that she was read her Miranda rights. Rather, she argues that the
only reason she provided a statement to the police was because she believed that she
would not be charged with the conduct of Hardiman. She believed she was receiving
a guarantee from the police that she would not get in any trouble as long as she told
the truth. T.N.R. contends that it was only after the police effectively promised not
to prosecute her that she agreed to provide a truthful statement. As a result, she
argues that her videotaped statement to the police was involuntary and the juvenile
court would have granted a motion to suppress if one was argued.
We note that “[w]hen a suspect is questioned in a custodial setting,
the Fifth Amendment requires that [the suspect] receive Miranda warnings to
protect against compelled self-incrimination.” State v. Wesson, 137 Ohio St.3d 309,
2013-Ohio-4575, 999 N.E.2d 557, ¶ 34, citing Miranda v. Arizona, 384 U.S. 436,
478-479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, “[a] suspect may then
knowingly and intelligently waive these rights and agree to make a statement.
[Miranda] at 479. If a defendant later challenges a confession as involuntary, the
state must prove a knowing, intelligent, and voluntary waiver by a preponderance of
evidence.” Id., citing Miranda at 475; Colorado v. Connelly, 479 U.S. 157, 168-169,
107 S.Ct. 515, 93 L.Ed.2d 473 (1986).
To determine whether a valid waiver occurred, courts should
“‘consider the totality of the circumstances, including the age, mentality, and prior
criminal experience of the accused; the length, intensity, and frequency of
interrogation; the existence of physical deprivation or mistreatment; and the
existence of threat or inducement.’” Id. at ¶ 35, quoting State v. Edwards, 49 Ohio
St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus, and citing Arizona
v. Fulminante, 499 U.S. 279, 285, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). The Ohio
Supreme Court has held that a waiver is voluntary “unless there is evidence of police
coercion, such as physical abuse, threats, or deprivation of food, medical treatment,
or sleep.” (Emphasis sic.) Id., citing State v. Cooey, 46 Ohio St.3d 20, 28, 544
N.E.2d 895 (1989).
The Ohio Supreme Court has found that coercion may exist “when
law-enforcement officers ‘persuad[e] or deceiv[e] the accused, with false promises
or information, into relinquishing his rights and responding to questions.’” State v.
Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 111, quoting Edwards
at 39. The presence of promises, however, “‘does not as a matter of law, render a
confession involuntary.’” Id., quoting Edwards at 41. Indeed, “[o]fficers may
discuss the advantages of telling the truth, advise suspects that cooperation will be
considered, or even suggest that a court may be lenient with a truthful defendant.”
Id., citing Edwards at 41. And “[a]dmonitions to tell the truth are considered to be
neither threats nor promises.” State v. Loza, 71 Ohio St.3d 61, 67, 641 N.E.2d 1082(1994), citing Cooey; State v. Wiles, 59 Ohio St.3d 71, 571 N.E.2d 97 (1991). “Finally,
it is not unduly coercive for a law-enforcement officer to mention potential
punishments.” Belton at ¶ 111, citing State v. Western, 2015-Ohio-627, 29 N.E.3d
245, ¶ 38 (2d Dist.); compare State v. Robinson, 9th Dist. Summit No. 16766, 1995
Ohio App. LEXIS 145, 4 (“While a correct statement of the law may not render a
confession involuntary, a misstatement of the law may cause such a confession to be
involuntary.”).
In State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984), the
Ohio Supreme Court addressed the Miranda waiver of a defendant who was
questioned in the hospital while receiving medical treatment. The defendant had
been shot in the chest by police during the course of a bank robbery. The defendant
suffered a severe spinal cord injury and, upon admission to the hospital, was in
shock, cold and clammy, and his blood pressure was very low due to blood loss. Id.
at 230. According to the attending physician, at the time of his admission to the
hospital, the defendant could not understand questions. Id. Detectives questioned
the defendant about his involvement in the bank robbery after his blood pressure
had improved. Id.The Supreme Court upheld the trial court’s denial of the defendant’s
motion to suppress, concluding his Miranda waiver was valid. The Jenkins Court
noted that the detectives obtained the doctor’s permission to conduct the interview,
which lasted no more than 45 minutes, and that the defendant was conscious
throughout. The defendant was able to converse in a normal voice and indicated he
understood his rights and expressed a willingness to talk to the police. The
detectives ceased their interrogation when the defendant indicated that he no longer
wished to speak with them. Id. at 232-233.
Other courts have addressed the issue of a defendant’s intoxication
and its effect on the Miranda waiver. “The presence of drugs and/or alcohol does
not render a statement inadmissible per se. Rather, while their presence should be
considered, ‘the amount must sufficiently impair the confessor’s ability to reason.”’
State v. Fairley, 3d Dist. Hancock No. 5-03-41, 2004-Ohio-2616, ¶ 21, quoting State
v. Stewart, 75 Ohio App.3d 141, 147, 598 N.E.2d 1275 (11th Dist.1991).
In Fairley, the Third District Court of Appeals held that the defendant
validly waived his Miranda rights even though the defendant admitted he was drunk
and used cocaine earlier in the day, the deputy noted “moderate odor of alcoholic
beverage” coming from the defendant, saw a can of beer between his legs, and
noticed that his eyes were glassy and blood shot. Id. at ¶ 20. The court reached this
conclusion because according to the deputy, the defendant “did not appear to have
trouble understanding any of his rights, did not act confused, did not have slurred
speech, and did not exhibit any other signs of intoxication, such as difficulty
standing, maintaining train of thought, and/or finishing sentences.” Id.
Additionally, the deputy stated the defendant “indicated he understood each right
read to him by the deputy, that he had no questions concerning these rights, and
that he would be willing to waive those rights and talk to the deputy.” Id.
Comparison of the hospital settings in Jenkins and Fairley with the
the instant case reveals that indicia of involuntariness and coercion are not present.
Here, T.N.R. appears coherent and stable in the video. She was conscious the entire
time and did not slur her speech or appear to be under the influence of any
medication or substance. T.N.R. was under arrest at the time but was not in
handcuffs. The questioning by Det. Mathis and Det. Robinson lasted approximately
45 minutes. There is nothing to suggest that T.N.R.’s state of mind was altered.
T.N.R. was able to write her statement in a notepad. In addition, the officers did not
prevent T.N.R. from receiving any medical treatment while questioning her.
In the video, Det. Mathis can be observed reading T.N.R. her Miranda
rights and then T.N.R. can be observed signing the waiver. T.N.R. initially denied
any involvement with Sparks. The detectives continued to question T.N.R. and told
her she needed to tell them what happened or she could end up in prison. They told
T.N.R. that the charges were serious and gave her a notepad to write down the
events. The detectives also told T.N.R. that if she told them what happened, she
would get out of jail in the morning. The detectives told T.N.R. that they would help
her out by planning for her to go to juvenile detention instead of county jail because
she was 17 years old at the time of the incident. Det. Mathis can be heard telling
T.N.R. that if she did not call Sparks, then he wanted to eliminate her from the crime.
At this point, T.N.R. told the detectives what happened and implicated herself in the
crime. Following her statement, the detectives told T.N.R. that her statement helped
her immensely and they wanted to clear her.
The officers neither made promises nor coerced T.N.R. The officers
stated that they wanted to help clear T.N.R.’s name and that there is a difference
between going along with a crime and actually setting it up. The officers encouraged
T.N.R. to tell the truth and said they would talk to the prosecutor. The Ohio
Supreme Court has found that officers may suggest that a court may be lenient with
a truthful defendant and it is not unduly coercive for a law-enforcement officer to
mention potential punishments. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74
N.E.3d 319, at ¶ 111, citing Edwards, 49 Ohio St.2d at 41, 358 N.E.2d 1051; Western
at ¶ 38. Furthermore, “[a]dmonitions to tell the truth are considered to be neither
threats nor promises.” Loza, 71 Ohio St.3d at 67, 641 N.E.2d 1082; citing Cooey, 46
Ohio St.3d at 28, 544 N.E.2d 895; Wiles, 59 Ohio St.3d at 81, 571 N.E.2d 97, 112.3
Therefore, based on the foregoing facts and circumstances, we decline
to find that T.N.R.’s statement was involuntary or coerced based on the totality of
the circumstances and the foregoing case law. We cannot say that a motion to
suppress T.N.R.’s statement would have been successful. “‘[A]n appellate court
presumes that defense counsel was effective if defense counsel could reasonably
have decided that the motion to suppress would have been futile.’” Leiter, 12th Dist.
Warren No. CA2016-12-104, 2017-Ohio-8537 at ¶ 37, quoting Dominguez, 12th Dist.
Preble No. CA2011-09-010, 2012-Ohio-4542 at ¶ 20. Accordingly, defense counsel
was not ineffective.
Therefore, the third assignment of error is overruled.
3 We do find that the officers’ telling T.N.R., who recently turned 18, that she would
go to juvenile detention instead of county jail because she was 17 at the time misleading
because they should have done that anyways. This statement does not rise to the level of
“coercion.”
Having concluded that defense counsel was not ineffective, we now
address T.N.R.’s arguments regarding the sufficiency and manifest weight of the
evidence.
B. Sufficiency of the Evidence
In the first assignment of error, T.N.R. argues that the state failed to
submit sufficient evidence of her complicity to aggravated robbery, robbery,
felonious assault, and kidnapping adjudications because Sparks could not identify
her as the woman in his car at the scene of the crime and she had no knowledge of
Hardiman’s plans.
The standard of review for issues involving the sufficiency of the
evidence in delinquency adjudications is the same standard for adult criminal
defendants: “we view the evidence most favorably to the state to determine whether
any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” In re D.C., 2018-Ohio-163, 104 N.E.3d 121, ¶ 3 (8th
Dist.), citing In re Washington, 81 Ohio St.3d 337, 339, 691 N.E.2d 285 (1998); In
re J.S., 8th Dist. Cuyahoga No. 102800, 2015-Ohio-4990, ¶ 13.
In State v. Jones, 166 Ohio St.3d 85, 2021-Ohio-3311, 182 N.E.3d
1161, the Ohio Supreme Court recently cautioned that
it is worth remembering what is not part of the court’s role when
conducting a sufficiency review. It falls to the trier of fact to ‘“resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.’” [State v.
McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, ¶
24], quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). Thus, an appellate court’s role is limited. It does
not ask whether the evidence should be believed or assess the
evidence’s “credibility or effect in inducing belief.” State v. Richardson,
150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13, citing
Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541. Instead, it asks
whether the evidence against a defendant, if believed, supports the
conviction. Thompkins at 390 (Cook, J., concurring).
Id. at ¶ 16.
Here, T.N.R. was adjudicated delinquent under a theory of complicity
as set forth in R.C. 2923.03(A)(2), which provides that “[n]o person, acting with the
kind of culpability required for the commission of an offense shall * * * aid or abet
another to commit the offense[.]” Under R.C. 2923.03(F), a defendant guilty of
complicity “shall be prosecuted and punished as if [the defendant] were a principal
offender. A charge of complicity may be stated * * * in terms of the principal
offense.”
The Ohio Supreme Court has found that “[t]o support a conviction for
complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence
must show that the defendant supported, assisted, encouraged, cooperated with,
advised, or incited the principal in the commission of the crime, and that the
defendant shared the criminal intent of the principal. Such intent may be inferred
from the circumstances surrounding the crime.” State v. Johnson, 93 Ohio St.3d
240, 2001-Ohio-1336, 754 N.E.2d 796, syllabus. The Johnson Court explained that
the circumstances surrounding the crime include “‘presence, companionship[,] and
conduct before and after the offense is committed.’” Id. at 245, quoting State v.
Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). The mere presence,
however, “‘of an accused at the scene of a crime is not sufficient to prove, in and of
itself, that the accused was an aider and abettor.’” Id. at 243, quoting State v.
Widner, 69 Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982). The court cautioned that
this “rule is to protect innocent bystanders who have no connection to the crime
other than simply being present at the time of its commission.” Id.In the instant case, T.N.R. was adjudicated delinquent for having
committed acts that, if committed by an adult, would have constituted complicity to
aggravated robbery in violation of R.C. 2911.01(A)(1), which provides that no person
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” during the commission of a theft offense; robbery in
violation of R.C. 2911.02(A)(2), which provides that no person shall “[i]nflict,
attempt to inflict, or threaten to physical harm on another” during the commission
of a theft offense; robbery in violation of R.C. 2911.02(A)(3), which provides that no
person shall “use or threaten the immediate use of force against another”;
kidnapping in violation of R.C. 2905.01(A)(2),which provides that no person “shall
remove another from the place where the other person is found or restrain the
liberty of the other person * * * to facilitate the commission of any felony or flight
thereafter”; and felonious assault in violation of R.C. 2903.11(A)(2), which provides
that no person shall knowingly “[c]ause or attempt to cause physical harm to
another * * * by means of a deadly weapon or dangerous ordnance.”
T.N.R. argues the state failed to establish that Hardiman possessed a
deadly weapon while committing the theft offense and failed to establish that
Hardiman inflicted serious physical harm on Sparks. She further argues there was
no evidence that Sparks was ever restrained of his liberty or moved from the place
where Hardiman first encountered him. We find T.N.R.’s arguments unpersuasive.
In her interview, T.N.R. stated that she was with Hardiman when they
pulled into a gas station and that Hardiman exited his vehicle to talk with some
females. The group then drove to another house where they planned the events but
she was not part of the conversation. She contacted Sparks to purchase some
marijuana. The group then drove to the apartment complex where the females from
the gas station were already parked. T.N.R. knew Hardiman had a gun, and she
observed Raymond give Hardiman a gun before they met up with Sparks. Hardiman
told her to go into Sparks’s car and tell him she wanted marijuana. Hardiman pulled
her out of Sparks’s car and drove around with Sparks. Sparks testified that he was
hit in the face, which cut open his cheek and left a scar. Sparks further testified that
he was unable to get out of his car because he is paralyzed. When Hardiman
returned, he had a car seat cover that he threw away and the two of them went inside
an apartment in the complex. Hardiman gave T.N.R. two packets of marijuana, and
she observed Hardiman with some cash. She did not know how much money
Hardiman had, but he split it with the females and Raymond.
In adjudicating T.N.R. delinquent, the trial court stated:
[COURT]: [One] way of showing that a person aided or abetted, or
essentially was complicit is that what was your participation. Well, it
says that participation of criminal intent may be inferred from
presence, companionship, conduct before and after the offense is
committed.
Your conduct before is that you are part of this group. You’re with
them.
Your conduct after is that you are part of this group, you’re with them.
The complicity rule was created to protect innocent bystanders, those
who have no connection to the crime other than being merely present.
You were more than just merely present.
(Jan. 18, 2022, tr. 106-107.)
We agree with the trial court. T.N.R. was more than just merely
present. She was aware of and involved in the theft. She initiated the marijuana
sale and knew a gun was involved, cash was taken, and Sparks was assaulted. T.N.R.
did not attempt to stop Hardiman from entering Sparks’s car, nor did she try to
leave. When this evidence is viewed in a light most favorable to the state, we find
that state presented sufficient evidence to support the adjudications.
Therefore, the first assignment of error is overruled.
C. Manifest Weight of the Evidence
In the second assignment of error, T.N.R. argues that her
adjudications are against the manifest weight of the evidence because there was no
competent, credible evidence that she was complicit with Hardiman’s independent
actions.
We note that “the same standard of review for manifest weight of the
evidence applies to juvenile and adult criminal matters.” In re C.J.R., 8th Dist.
Cuyahoga No. 102253, 2015-Ohio-3477, ¶ 27, citing In re G.R., 8th Dist. Cuyahoga
No. 90391, 2008-Ohio-3982, ¶ 37, citing In re J.A.S., 12th Dist. Warren No.
CA2007-04-046, 2007-Ohio-6746. When reviewing a manifest-weight challenge,
an appellate court, “‘weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in the
evidence, the jury 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.
Virostek, 8th Dist. Cuyahoga No. 110592, 2022-Ohio-1397, ¶ 54, quoting Martin, 20
Ohio App.3d at 175, 485 N.E.2d 717. A reversal on the basis that a verdict is against
the manifest weight of the evidence is granted “‘only in the exceptional case in which
the evidence weighs heavily against the conviction.’” Thompkins, 78 Ohio St.3d at
387, 678 N.E.2d 541, quoting Martin at 175.
As this court has previously stated:
The criminal manifest-weight-of-the-evidence standard addresses the
evidence’s effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382,
2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins, 78 Ohio
St.3d at 386, 678 N.E.2d 541 (1997). Under the manifest-weight-of-
the-evidence standard, a reviewing court must ask the following
question: whose evidence is more persuasive — the state’s or the
defendant’s? Wilson at id. Although there may be legally sufficient
evidence to support a judgment, it may nevertheless be against the
manifest weight of the evidence. Thompkins at 387; State v. Johnson,
88 Ohio St.3d 95, 2000-Ohio-276, 723 N.E.2d 1054 (2000).
When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the manifest weight of the evidence, the
appellate court sits as a “thirteenth juror” and disagrees with the fact
finder’s resolution of the conflicting testimony. Wilson at id., quoting
Thompkins at id.State v. Williams, 8th Dist. Cuyahoga No. 108275, 2020-Ohio-269, ¶ 86-87.
To find merit in this assignment of error, we must disbelieve T.N.R.’s
statement in which she told the police the events detailing the incident with Sparks.
T.N.R. admits to initiating a marijuana sale with Sparks. She stated in the video that
she was present when the crimes occurred. She observed Raymond hand Hardiman
a gun. She entered Sparks’s car to purchase marijuana knowing that her boyfriend,
Hardiman, had a gun nearby. T.N.R.’s conduct set up Sparks to be robbed of his
money and cellphone. T.N.R. was present during the meetings planning the
robbery.
When the foregoing evidence is weighed, we decline to find the trial
court lost its way so as to create a manifest miscarriage of justice that would warrant
the adjudications to be reversed. T.N.R. was complicit in the crimes, and thus her
adjudications are not against the manifest weight of the evidence.
Accordingly, the second assignment of error is overruled.
III. Conclusion
For the reasons stated above, we find that defense counsel was not
ineffective for failing to file a motion to suppress because the filing of the motion
would have been futile. We further find sufficient evidence to sustain T.N.R.’s
delinquency adjudications and her adjudications are not against the manifest weight
of the evidence.
Accordingly, judgment is affirmed.
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 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.
MARY J. BOYLE, JUDGE
MICHELLE J. SHEEHAN, J., CONCURS;
ANITA LASTER MAYS, A.J., DISSENTS (WITH SEPARATE OPINION
ATTACHED)
ANITA LASTER MAYS, A.J., DISSENTING:
I respectfully dissent from the majority’s conclusion and would find
that counsel was ineffective when a motion to suppress was not filed because the
granting of the motion would have changed the outcome of the case.
In this case, T.N.R. suffered an asthma attack at the jail. T.N.R. was
given medications and treatment at the jail that was never revealed to the court.
Once at MetroHealth, the treating physician assistant entered the room after the
detective read T.N.R. her Miranda rights around three minutes into the video. The
physician assistant confirmed that T.N.R. was given medicine on her way over to the
emergency room. T.N.R. states that her chest was tight and she was experiencing
shortness of breath and requested another treatment. The physician assistant
agrees to give another treatment and at that time, the detectives stated “[W]e need
to ask her questions before you start her next treatment.” This happens around 5:58
on video one. The doctor exits and the detective jumps up for T.N.R. to sign the
waiver. The detectives questioned T.N.R. for an additional 15 minutes before
Detective Mathis states “let me get the nurse for her treatment” as if he notices
distress in T.N.R.
The Ohio Supreme Court has determined that during questioning the
use of an “inherently coercive tactic” is essential to a finding of involuntariness.
Examples of coercive tactics include threats, deprivation of sleep, or medical
treatments to name a few. State v. Cooey, 46 Ohio St.3d 20, 544 N.E.2d 895, ¶ 28
(1989). When Detective Mathis delayed T.N.R.’s breathing treatment, he engaged
in a coercive tactic.
It has been determined that to prove ineffective assistant of counsel
“[t]he defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). T.N.R. argues that counsel’s failure to file the motion
to suppress her statement was error. “Failure to file a motion to suppress does not
constitute per se ineffective assistance of counsel. Rather, the failure to file a motion
to suppress constitutes ineffective assistance of counsel only when the record
demonstrates that the motion would have been successful if made.” State v.
Sanchez, 8th Dist. Cuyahoga No. 103078, 2016-Ohio-3167, ¶ 22.
The record reveals that T.N.R.’s statements incriminated herself
through identification. The victim, Sparks, was unable to identify her. But for her
statements, T.N.R. would not have been convicted and therefore was prejudiced by
counsel’s deficient performance. Vague speculations of prejudice is insufficient
proof of ineffective assistance of counsel. State v. Edmonds, 7th Dist. Mahoning
No. 18 MA 0110, 2020-Ohio-1148, 17, citing State v. Watkins, 7th Dist. Jefferson
No. 07 JE 54, 2008-Ohio-6634, ¶ 15. The proof presented in this record is specific
and, therefore, T.N.R. was prejudiced from counsel’s failure to file the motion to
suppress.
For the foregoing reasons, I would reverse T.N.R.’s adjudication of
delinquency.