In re L.S.
| Decision Date | 23 September 2021 |
| Docket Number | 110351 |
| Court | Ohio Court of Appeals |
| Parties | IN RE L.S. A Minor Child |
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL-20-103818
Fred D. Middleton, for appellant.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Margaret Graham, Assistant Prosecuting Attorney, for appellee.
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant-appellant L.S. appeals his adjudications of delinquency on one count of aggravated robbery, three counts of robbery, one count of grand theft and one count of criminal damaging or endangering. L.S contends that he was denied the effective assistance of counsel based on trial counsel's failure to file a motion to suppress, or to object to, evidence of (1) a victim's "cold-stand" identification and (2) surveillance video footage of the incident. L.S. also appeals his dispositions for robbery and grand theft on the grounds that they are allied offenses of similar import to aggravated robbery.
{¶ 2} For the reasons that follow, we affirm L.S.'s adjudications of delinquency but vacate the dispositions on Counts 1-5 and remand for resentencing on those counts. We also remand for the juvenile court to issue a nunc pro tunc entry correcting its January 25, 2021 dispositional journal entry to reflect that a $100 fine (suspended) was imposed on Count 6, not a $400 fine (suspended), as stated in the journal entry.
{¶ 3} On April 1, 2020, the state of Ohio filed a delinquency complaint in juvenile court charging L.S. as a juvenile offender on six counts: aggravated robbery in violation of R.C. 2911.01(A)(1) (Count 1), robbery in violation of R.C. 2911.02(A)(1) (Count 2), robbery in violation of R.C. 2911.02(A)(2) (Count 3), robbery in violation of R.C. 2911.02(A)(3) (Count 4), grand theft in violation of R.C. 2913.02(A)(1) (Count 5) and criminal damaging or endangering in violation of RC. 2909.06(A)(1). The aggravated robbery, robbery and grand theft counts included one-year and three-year firearm specifications. The charges related to a March 31, 2020 incident in which L.S allegedly threatened a 12-year-old boy, J.S., with a gun stole a set of car keys J.S. was carrying and then gave the car keys to an associate, who drove off in, and ultimately crashed, the vehicle. L.S. was 14 years old at the time of the incident. L.S. denied the charges against him. An adjudicatory hearing was held on November 3, 2020. A summary of the evidence presented at the hearing follows.
{¶ 4} In the late afternoon or early evening hours of March 31, 2020, J.S., J.S.'s mother, J.P., and one of his mother's friends, M.G., returned home after running some errands. M.G. parked her vehicle, a white 2008 Mercury Mariner, in the parking lot of J.P.'s apartment complex on Detroit Avenue in Cleveland, Ohio and J.S. and the two women carried their purchases inside. Realizing that a bag of groceries had been left behind in M.G.'s car, J.S. went back out to the car to retrieve the groceries. J.S. testified that when he went back outside, three male youths approached him - one was wearing "[r]ed pants and a black sweater," one was wearing all black (the "perpetrator wearing black") and one was wearing a grey sweater or jacket and black pants (the "perpetrator wearing grey"). J.S. stated that he "knew of two of the males and had seen them in the area before but that he was not friends with any of them. J.S. testified that the male who was wearing red pants and a black sweater (whom J.S identified in court as L.S.) had a gun in his hand and pointed it at J.S. - by his stomach - and that the perpetrator wearing grey had a gun in his pocket. J.S. stated these two males were wearing black "ski masks."
{¶ 5} J.S. testified that the males first demanded that J.S. give them the car keys he was carrying and then demanded that he identify the vehicle to which the car keys belonged. Each time, they told J.S. that if he did not comply, they would shoot him. J.S. complied. He handed the car keys to L.S. and told him that the keys were for the "white car." J.S. stated that he gave L.S. the car keys because he "didn't want to die." L.S. then gave the car keys to the perpetrator wearing grey, who got into M.G.'s car and drove the vehicle until it struck a curb and became inoperable. After giving the car keys to L.S., J.S. ran back to his apartment, "nervous and crying," and told his mother and M.G. what had happened.
{¶ 6} J.P. immediately went outside. M.G. grabbed her cell phone to call 911 and followed J.P. outside. J.P. testified that when she went outside, she saw several kids in the alley and someone driving M.G.'s vehicle. J.P. followed the vehicle down the alley. As she reached the end of the alley, the vehicle hit a curb and the driver jumped out of the vehicle and fled, on foot, down the street. J.P. testified that, at that time, she saw a boy (whom she identified in court as L.S.) wearing "red khaki, like reddish pants" and a black hoodie standing at the end of the alley along with several other kids. J.P. testified that she asked the kids in the alley what was going on and that L.S. told her that he "didn't have anything to do with it." L.S. and the other kids then ran off. J.P. testified that approximately "one to five minutes" later, L.S. returned to get a bicycle that had been left in the alley and then rode off on the bicycle. When J.S. saw L.S. on the bicycle, he recognized him and told his mother that L.S. was one of the males who had robbed him.
{¶ 7} M.G. testified that when she got outside, she saw her car in the middle of the street. She walked over to her car but was unable to move it because "[t]he tire was messed up." The vehicle had to be towed from the scene. M.G. stated that she was still on the phone with the 911 dispatcher when the police arrived.
{¶ 8} Cleveland Police Detective Daniel Florentz, the "lead" officer on the case, was one of the responding officers. He testified that as he approached the scene, he saw a white Mercury Mariner in the middle of the road on Detroit Avenue near W. 87th Street. He indicated that officers in a zone car that was already on scene were providing updates to other responding officers and reported that two males possibly connected to the incident - one wearing "maroon pants" and another wearing a grey jacket or hoodie - were heading northbound on W. 87th Street. Detective Florentz testified that officers detained one male (whom he identified in court as L.S.) riding a bike on W. 87th Street, a couple hundred feet from the scene of the incident. Detective Florentz indicated that when he was apprehended, L.S. was wearing "maroon pants and a black zip-up hoodie" with "a red like Louis Vuitton belt" and had a "black hood with a black mask * * * that has a face cut out on it" on his person.[1] He said that officers were unable to locate the second male. Detective Florentz indicated that no weapons were found on L.S. when he was apprehended and that no weapons were found during a search of the surrounding area.
{¶ 9} Detective Florentz testified that after L.S. was apprehended, he was placed in the back of a zone car while officers spoke with J.S. He stated that J.S. was "shaken up" but was "very knowledgeable" and "could describe a lot of details from the incident." He indicated that J.S.'s description of one of the perpetrators, including the mask found on L.S., matched L.S.
{¶ 10} Detective Florentz testified that, after speaking with J.S., he brought J.S. over to where L.S. was being detained and conducted a "cold-stand." He "blocked" J.S. "off so he would not be seen by L.S., had L.S. step out of the police vehicle and asked J.S. if he could identify L.S. as one of the males involved in the incident. Detective Florentz testified that J.S. indicated that L.S. was one of the males who had robbed him.
{¶ 11} Detective Florentz stated that he interviewed L.S. after the incident and that L.S. claimed that he was headed over to a friend's house when his cell phone "died." According to Detective Florentz, L.S. stated that he saw a group of individuals he knew as "associates" in the alley and stopped and talked to them a bit. L.S. claimed that when he saw J.S., he ran up J.S. to tell J.S. that he wanted to talk to his sister because he had a crush on her.
{¶ 12} Surveillance cameras around the parking lot of the apartment complex captured the incident. Detective Florentz testified that, after the incident, police recovered surveillance footage from "multiple cameras at the location" and that he reviewed all of "the multiple different angles * * * from that day."
{¶ 13} Portions of that video footage were played during the testimony of J.S., M.G., and Detective Florentz and were introduced into evidence on a compact disc (the "video CD"). The video CD contains two minutes and three seconds of surveillance video footage from various camera angles and includes date and time-stamps.
{¶ 14} The video CD begins with video footage of a boy (identified in court as J.S.) walking into the parking lot and several other male youths - including a male wearing a black hoodie and red pants (identified in court as L.S.), an unidentified male wearing a grey jacket, an identified male wearing all black and an unidentified male wearing a blue-and-white jacket - standing or sitting in an alley on the other side of the parking lot. As J.S. walks through the parking lot, the male youths turn in his direction, watching him, then become animated, jumping around. The male wearing all black pulls up the hood of his hoodie and takes something from the male wearing the blue-and-white-jacket. Three of the youths - L.S., the male wearing a grey...
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