In re H.H. , 2023 Ohio 1292 ( 2023 )

[Cite as In re H.H., 2023-Ohio-1292.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE H.H. :
Nos. 111907 and 111908
A Minor Child :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 20, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. DL21105253 and DL22101280
Appearances:
Timothy Young, Ohio Public Defender, and Lauren
Hammersmith, Assistant State Public Defender, for
appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Halie Turigliatti, Assistant Prosecuting
Attorney.
MICHELLE J. SHEEHAN, J.:
Appellant H.H. appeals from a judgment of the juvenile court
adjudicating him as delinquent for his involvement in a shooting incident. On
appeal, he argues the finding of delinquency is not supported by sufficient evidence
and is also against the manifest weight of the evidence. After a careful review of the
record and applicable law, we affirm the judgment of the juvenile court.1
Substantive and Procedural Background
The state alleged that H.H., age 12 at the time of the offenses, acted in
concert with two other youths in an armed robbery. He arranged to meet with the
victim Michael Hidvegi to buy marijuana from him. Rather than arriving alone,
H.H. arrived in a stolen vehicle with two older youths who were masked and armed.
The two older youths ended up shooting Hidvegi in an attempt to rob him.
The state charged H.H. with multiple offenses for his involvement in
the incident: attempted murder, discharge of a firearm on or near a prohibited
premises, aggravated robbery, robbery, felonious assault, receiving stolen property,
attempted grand theft, and improper handling of firearms in a motor vehicle. The
juvenile court found H.H. not delinquent regarding the offenses of improper
handling of firearms in a motor vehicle and attempted grand theft. The court,
however, found him to have acted in concert with the other two youths and therefore
found him delinquent regarding the remaining offenses based on a theory of
complicity.
After the adjudication of delinquency, the juvenile court ordered H.H.
to serve a minimum term of five years at the Department of Youth Services (“DYS”)
but suspended the commitment on the condition of his acceptance to a community
1This appeal is a consolidated appeal of 8th Dist. Cuyahoga Nos. 111907 and 111908. The
appellant’s brief, however, does not raise any assignments of error regarding Appeal
No. 111908. Accordingly, this opinion concerns only Appeal No. 111907.
corrections facility (“CCF”) program. A month after the dispositional hearing,
however, the juvenile court was informed that H.H. had not been accepted to the
CCF program and it therefore imposed the DYS commitment.
Trial Testimony
The state alleged that H.H. set up the robbery and worked with two
other unidentified individuals in concert to rob Hidvegi. It presented the testimony
of the victim, Hidvegi; several detectives and a police officer; the resident whose
front yard the youths ran into after the shooting; and the owner of the stolen vehicle
in which the three youths arrived. The defense claimed H.H. was unaware that the
other two individuals intended to shoot Hidvegi and presented the testimony of
H.H.’s sister in support of the claim.
Hidvegi, age 36, testified for the state reluctantly. He failed to appear
at the initially scheduled trial, and the court issued a warrant to secure his presence
at the rescheduled trial. At the beginning of his testimony, he was uncooperative
and claimed he lost all memory about the incident. As a result, the court permitted
the state to examine him as a hostile witness. The transcript reflects, however, that
he became less recalcitrant subsequently and provided extensive testimony
regarding the incident.
Hidvegi testified that he exchanged text messages with someone named
“T” to provide marijuana to him. To his surprise, H.H., whom he knew, appeared
instead. H.H. jumped in his Jeep and sat on the passenger seat but did not close the
door. He asked H.H. where “T” was, and H.H. said “T” was not here, so he asked
H.H.to leave. While he was talking to H.H., two other youths, who were nearby and
had masks on their faces, suddenly ran up to his vehicle. When H.H. exited his
vehicle, Hidvegi turned and saw the other two at the driver’s side of his vehicle. They
yelled, “[D]ie mother f***er” and started shooting into the vehicle. Hidvegi fired his
own gun and ran for his life. Hidvegi testified that he was unsure if H.H. had a
firearm with him but he was acting like he had one by reaching in his waistband
while still inside his vehicle. Hidvegi was shot in the testicles but did not know who
shot him. His Jeep was badly damaged in the shooting. He testified that his whole
life was “messed up” by the incident.
P. May is a resident on West 97th Street, Cleveland. Her house is on
the east side of the street and on the passenger side of Hidvegi’s Jeep, which was
parked in front of her neighbor’s house. She has a surveillance camera on her house,
which captured the incident, and she witnessed the event immediately after the
shooting. From inside her house, she saw three youths running into her yard and
hiding behind her porch, side-by-side and all hunched. One of them was leaning on
her porch and shooting. She immediately called 911.
On cross-examination, she acknowledged that in her 911 call, she stated
that she observed three kids and two of them were hiding behind her porch. She
identified defendant’s Exhibit O, a still photograph from her home surveillance
video, as depicting three youths running into her yard. On redirect examination, she
testified she was very certain she saw all three youths running into her yard.
Officer Jason Santana testified that he responded to the report of a
shooting on West 97th Street. When he arrived, Hidvegi’s Jeep was still running.
There were shell casings on the ground near the Jeep. He learned from the
neighbors that a Jeep pulled up and three males approached it. One male got into
the passenger’s side, and soon a shooting occurred. The driver bailed out of his
vehicle and shot at the three youths, who were on the east side of the street. The
Jeep’s driver fled northbound on West 97th Street. The youths went inside the Jeep,
and then they all fled as well. The driver was found on another street in the vicinity.
He was lying on the ground bleeding. The neighbors also identified H.H., who lived
in the area, as one of the three youths involved in the incident. Officer Santana
learned, additionally, that the three youths arrived in a blue Hyundai Elantra, which
was parked on a nearby street.
On cross-examination, Officer Santana testified that when he
interviewed Hidvegi at the hospital, Hidvegi told him that he was meeting “T” that
day but that law enforcement believed “T” was H.H. According to Hidvegi, H.H.,
dressed in a white hoodie, did not have a firearm and did not make any threats, and
the only individuals shooting were the two youths approaching his vehicle on the
driver’s side. Santana’s report indicated that the approximate time of the incident
was listed as between 1:20 p.m. and 1:30 p.m.
B. Piskach testified she was carjacked on May 28, 2021, at gun point
in her driveway. The vehicle stolen was a blue 2017 Hyundai Elantra.
Detective Christopher Horvath also arrived at the scene to investigate
the shooting. When he arrived, Officer Santana related to him that H.H. had been
identified as one of the youths involved. Detective Horvath’s testimony was
accompanied by the video from May’s surveillance camera. He testified that the
video showed a Jeep parked in the street and three individuals approached the
vehicle. One of them entered the vehicle, and when the driver exited the vehicle, “all
three of them are running southbound on West 97th Street.” Later, two of them
went back to the Jeep, entered it, and then fled again southbound on West 97th
Street. Detective Horvath testified that the video clearly showed that two youths had
guns in their hands, but it was unclear if the third male — the one in the light-colored
hoodie — had a gun. Detective Horvath testified that the shooting occurred at
approximately 1:30 p.m.
Detective Horvath also interviewed Hidvegi at the hospital. Hidvegi
initially told him that while he was driving on West 97th Street northbound, a ball
rolled in front of his vehicle and, when he stopped, he was approached by three
youths who tried to rob him of his vehicle. Hidvegi changed his account, however,
when told the incident was captured in a video and stated that he was meeting with
an individual known as “T” to give him marijuana. Subsequently, Hidvegi identified
H.H. from a photo array as the youth who got inside his vehicle. Furthermore,
Hidvegi’s cell phone record showed that Hidvegi communicated with H.H. within
ten minutes of the shooting incident.
Detective Michael Hale testified that he photographed the crime scene
and collected the shell casings around the Jeep. Detective Darryl Johnson testified
that he photographed the damaged Jeep and the photographs showed that the rear
door on the driver’s side and the interior door panel on the front passenger side were
struck by bullets.
The defense presented one witness, H.H.’s sister, age 16. She testified
that Hidvegi had sold marijuana to her and H.H. on several prior occasions. Because
H.H. was not old enough to have an account, she would pay Hidvegi through the app
“Cash App” for the drugs. On the day of the incident, H.H. communicated with her
by an Instagram video call and asked her to send Hidvegi money for marijuana.
While she was on the video call with him, she heard gunshots in the background and
H.H. started to run. The Instagram video call started at 1:22 p.m. and ended at 1:23
p.m.
In closing argument, defense counsel argued that when the gunshots
erupted, H.H. was still inside the vehicle, which reflected that he was at risk of being
shot and therefore disproved H.H.’s complicity in the shooting. The defense also
argued that it would be highly unlikely for H.H. to call his sister on a video call
immediately before a robbery in which he was involved. The defense claimed that
H.H.’s sister’s testimony showed that H.H. was unaware of the impending robbery
attempt.
When announcing the guilty verdict, the juvenile court commented
extensively regarding his review of the evidence. The court noted that the
surveillance video corroborated the testimony of Hidvegi and May. The video
showed that the stolen Hyundai Elantra arrived at the scene and the three youths
were walking together towards the area where Hidvegi’s Jeep was parked. All three
walked to the driver’s side of the vehicle. After they walked around the vehicle, the
youth in the white hoodie returned to the passenger side, then opened the door and
got in. The court observed that he sat on the passenger seat in a way to allow him to
extract himself from the vehicle quickly. Soon the youth in the white hoodie was
out of the vehicle and running, and the other two were running as well, all in the
same direction. The court noted that Hidvegi testified that, as soon as the one in the
white hoodie exited his vehicle, the shooting started.
The juvenile court found the state did not prove beyond a reasonable
doubt that H.H. was in possession of a firearm at the time or that he committed the
offense of grand theft. The court found, however, that he was complicit in the
remaining offenses based on his past relationship with Hidvegi for drug
transactions, arriving with the other two youths together, and then running together
away from the vehicle after the shooting.
On appeal, H.H. raises the following assignment of error:
The Cuyahoga County Juvenile Court violated H.H.’s right to due
process of law, because his adjudications for attempted murder,
discharge of a firearm on or near a prohibited premises, aggravated
robbery, and gun specifications were not supported by credible
evidence, in violation of the Fifth and Fourteenth Amendments to the
U.S. Constitution, and Article I, Section 16 of the Ohio Constitution.
Under the assignment of error, H.H. argues that the trial court’s adjudications of
delinquency were not supported by sufficient evidence and were against the
manifest of weight of the evidence.
“A juvenile court may adjudicate a juvenile to be a delinquent child
when the evidence demonstrates, beyond a reasonable doubt, that the child
committed an act that would constitute a crime if committed by an adult.” In re
C.A., 8th Dist. Cuyahoga No. 102675, 2015-Ohio-4768, ¶ 47, citing R.C. 2151.35(A)
and Juv.R. 29(E)(4). “This court evaluates challenges to the sufficiency and manifest
weight of the evidence in delinquency adjudications under the same standards of
review that apply to criminal convictions.” In re Q.W., 2017-Ohio-8311, 99 N.E.3d
944, ¶ 7 (8th Dist.) See also In re L.F., 9th Dist. Lorain No. 10CA09880,
2012-Ohio-302, ¶ 6 (although juvenile delinquency cases are technically civil in
nature, an appellate court applies the same sufficiency and manifest weight
standards of review in a juvenile delinquency case that it applies in an adult criminal
appeal due to the inherently criminal aspects of delinquency proceedings).
Sufficiency of Evidence
When considering a challenge to the sufficiency of the evidence, we
review the evidence admitted at trial and determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a reasonable doubt.”
Id. A reviewing court is not to assess “whether the state’s evidence is to be believed,
but whether, if believed, the evidence against a defendant would support a
conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
The trial court found H.H. delinquent under a theory of complicity by
acting in concert with two other individuals who fired shots at the victim in a robbery
attempt. Pursuant to the complicity statute, R.C. 2923.03(A)(2), “[n]o person,
acting with the kind of culpability required for the commission of an offense, shall
* * * [a]id or abet another in committing the offense.” R.C. 2923.03(A)(2). To prove
complicity to a crime by aiding and abetting, “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.” State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001),
syllabus.
“In Ohio, an offender’s complicity to commit a crime may be inferred
from the circumstances surrounding the crime, and that may include the offender’s
presence, companionship, and conduct before and after the crime is committed.”
State v. Crosby, 8th Dist. Cuyahoga No. 106504, 2018-Ohio-3793, ¶ 12, citing State
v. Moore, 7th Dist. Mahoning No. 02 CA 152, 2004-Ohio-2320, ¶ 31, citing Johnson
at 245. Furthermore, it is well established that circumstantial and direct evidence
possess the same probative value. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph one of the syllabus. “‘Circumstantial evidence is not only sufficient, but
may also be more certain, satisfying, and persuasive than direct evidence.’” State v.
Hawthorne, 8th Dist. Cuyahoga No. 96496, 2011-Ohio-6078, quoting Michalic v.
Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).
Our review of the evidence in this case indicates that the state
presented sufficient evidence, albeit circumstantial, to establish that H.H. acted in
complicity with two other individuals in committing the multiples offenses related
to the shooting. The state produced evidence showing that H.H. arranged a drug
transaction with Hidvegi but, instead of arriving alone, he arrived with two other
youths, who were both masked and armed. The three of them approached the
victim’s vehicle together. H.H. got inside the vehicle but sat on the passenger seat
with one leg hanging outside the vehicle — as if “he was about to jump out the car,”
in the victim’s words. As soon as H.H. exited the vehicle, the other two youths shot
into the vehicle at the victim, injuring him in the testicles. The three youths then
ran away together in the same direction toward the front yard of a nearby house.
Having reviewed the trial transcript, we conclude that, viewing the
evidence presented at trial in a light most favorable to the prosecution, any rational
trier of fact could have found that H.H. acted in complicity with the two unidentified
youths in the multiple offenses relating to the shooting incident.
Manifest Weight
While the test for sufficiency requires a determination of whether the
state has met its burden of production at trial, a manifest weight challenge questions
whether the state has met its burden of persuasion. Id. Unlike a claim that the
evidence is insufficient to support a conviction, which raises a question of law,
manifest-weight challenges raise factual issues. When a defendant argues his or her
conviction is against the manifest weight of the evidence, the court,
“reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its
way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. The discretionary
power to grant a new trial should be exercised only in the exceptional
case in which the evidence weighs heavily against the conviction.”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983). As a general proposition, a “weight of the evidence challenge
indicates that a greater amount of the credible evidence supports one side of the
issue than supports the other.” In re: G.B., 8th Dist. Cuyahoga Nos. 95521, 96169,
and 96279, 2011-Ohio-5152, ¶ 22.
H.H. argues that Hidvegi was not a credible witness because he
changed his account in his interview with law enforcement and claimed at trial that
he did not recall anything about the incident. Our review of the transcript indicates
that, while Hidvegi was initially reluctant to testify, he subsequently became less
recalcitrant and more cooperative, providing testimony with sufficient details under
both direct examination and cross-examination. Determinations regarding the
credibility of witnesses and the weight given to the evidence are primarily matters
for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).
While H.H. does not dispute that he arranged the drug transaction
with the victim and that he arrived together with the other two youths at the
arranged meeting place, he argues that the weight of the evidence does not reflect
his complicity in the multiple offenses related to the shooting. He claims that he
would not have put himself inside the vehicle in the line of fire if he was aware of the
impending criminal activity.
Contrary to H.H.’s claim, the victim was emphatic that the shooting
started only after H.H. was out of his vehicle. He testified that “[H.H.] got out my
car. Then the two little kids come running up with guns”; “they didn’t pull their guns
until [H.H.] got out the car”; and “[o]nce he got out the car, that’s when they pulled
their guns, not while he was in the car.” The juvenile court, in reviewing the
evidence, also emphasized that H.H. sat on the passenger seat in a manner that
would allow him to easily extract himself from the vehicle.
H.H. also argues that his sister’s testimony supports his claim that he
was not acting in complicity with the other two individuals: she testified that while
she was on an Instagram video call with him, she heard the gunshots in the
background. H.H. argues this evidence showed he was not aware of the impending
robbery because he would not have communicated with her by a video call that could
capture the shooting.
The state challenges the credibility of H.H.’s sister’s testimony,
pointing to the evidence showing that the one-minute Instagram video call began at
1:22 p.m. while the timestamp on the video showed that the shooting occurred
around 1:32 p.m., ten minutes after the video call.2 In addition, H.H.’s sister’s
testimony that she was communicating with H.H. immediately prior to the shooting
was at odds with the state’s evidence establishing that H.H. was inside the victim’s
vehicle conversing with the victim immediately before his quick exit from the vehicle
and the eruption of gunshots. It is well settled that the trier of fact “may take note
of any inconsistencies and resolve them accordingly, ‘believing all, part, or none of
a witness’s testimony.’” State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578,
¶ 33, quoting State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958.
Having reviewed the entire record, weighed the evidence and all
reasonable inferences, and considered the credibility of witnesses, we are unable to
conclude that the juvenile court clearly lost its way in resolving conflicts in evidence
in the state’s favor. This is not an exceptional case in which the evidence weighed
heavily against the adjudication of delinquency and a new trial is required. H.H.’s
sole assignment of error is without merit.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
2We note the evidence regarding the 1:32 p.m. timestamp was mentioned only in closing
argument and, as such, was not evidence. State v. Price, 8th Dist. Cuyahoga No. 100981,
2015-Ohio-411, ¶ 46. However, in this case, the surveillance video was introduced as an
exhibit at trial and a review of the video shows a 1:32 p.m. time stamp at the time of the
shooting. In this connection, we note Officer Santana testified that the incident report
estimated the shooting to have occurred between 1:20 p.m. and 1:30 p.m., and Detective
Horvath testified that the shooting occurred around 1:30 p.m.
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.
____________________________
MICHELLE J. SHEEHAN, JUDGE
EILEEN A. GALLAGHER, P.J., and
MARY J. BOYLE, J., CONCUR