In re T.D.S.

[Cite as In re T.D.S., 2022-Ohio-525.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

IN RE T.D.S. :

A Minor Child :

No. 110471

:

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: February 24, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas

Juvenile Division

Case No. DL19110643

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, Carson Strang and Ben McNair, Assistant

Prosecuting Attorneys, for appellee.

Timothy Young, Ohio Public Defender, Abigail

Christopher and Lauren Hammersmith, Assistant State

Public Defenders, for appellant.

SEAN C. GALLAGHER, A.J.:

T.D.S. appeals the disposition ordered by the Cuyahoga County Court

of Common Pleas, Juvenile Division (“juvenile court”), after he was adjudicated

delinquent of conduct that constituted multiple felony counts arising from a

shooting death. Upon review, we affirm the juvenile court’s disposition that

committed appellant to the Ohio Department of Youth Services (“ODYS”).

In September 2019, Cleveland police officers responded to an

emergency call for “shots fired” at an abandoned apartment building. The caller told

the emergency responders that two juveniles went inside the apartment building,

gunshots were heard, and only one of the juveniles exited. The juvenile was

described as a black male having a high-top fade haircut, with a copper-color dye —

a description consistent with T.D.S. Upon entering the apartment building, officers

found a 14-year-old victim with two gunshot wounds. The victim was alive but

unresponsive and succumbed to his injuries after a day in the hospital.

After receiving information from a local high school, T.D.S., then 15

years old, was identified as a person of interest. A school employee told officers that

T.D.S. had shot and killed the victim over a dispute involving a firearm, although it

is unclear how the employee came upon that information. Police officers initiated a

discussion with T.D.S. and his mother at their home. T.D.S.’s mother allowed the

officers into the home to speak with T.D.S. After about an hour, T.D.S. admitted to

being present and shooting the victim, but he claimed the incident was an accident.

At that point, officers advised T.D.S. of his constitutional rights in his mother’s

presence. After acknowledging his constitutional rights, T.D.S. told officers where

the firearm used in the shooting was disposed of and led the officers to the location.

The firearm was never recovered despite an extensive search.

The state theorized that T.D.S. was sent by an adult named “Vaughn”

to retrieve the firearm used in the shooting from the victim. The victim had been

threatened in the preceding weeks with “Vaughn’s” intent to “send a little boy after”

him. T.D.S., after being advised of his constitutional rights, confirmed this story.

According to T.D.S., “Vaughn” contacted him in an attempt to have T.D.S. retrieve

the firearm and he was offered $1,000 to kill the victim. The night before the killing,

T.D.S. and the victim were together in the home of a mother figure for the victim.

She overheard the conversation between “Vaughn” and the victim and told T.D.S. to

leave. T.D.S. left with the victim the next morning, the day of the killing.

Initially, T.D.S. was charged with purposely causing the death of the

victim, offenses constituting murder under R.C. 2903.02(A), felony murder under

R.C. 2903.02(B) with the predicate offense being either of two felonious assault

charges under R.C. 2903.11(A)(1) or 2903.11(A)(2), tampering with evidence under

R.C. 2921.12(A)(1), and having weapons while under disability under R.C.

2923.13(A)(2). The offenses included attendant firearm specifications. T.D.S. had

a prior record; he was found delinquent of theft and attempted arson, which if

committed by an adult would be an offense of violence. The trial court found

probable cause to believe that T.D.S. committed acts constituting the offenses except

for purposeful murder and having weapons while under disability. Following the

denial of bindover, the grand jury issued a new indictment deleting the purposeful

murder offense, but including the having weapons while under disability and serious

youth offender specifications.

Before trial, two experts presented differing opinions on T.D.S.’s

competency to stand trial. Although T.D.S. indicated a low, full scale IQ of 60, both

experts testified to his having a verbal IQ of 73. Throughout T.D.S.’s interaction with

police officers and others during the course of the case, he demonstrated a basic

understanding of the criminal justice system, for example comprehending and

articulating the concepts of DNA and gunshot-residue evidence, which T.D.S. did

not demonstrate during the competency evaluation.

Based on that, both experts believed that T.D.S. was malingering to a

certain extent, feigning incomprehension. In support of the state’s malingering

claim, a recording of a phone conversation between T.D.S. and another was played

for the trial court. The audio recording demonstrated that T.D.S. had an

understanding of the criminal process and, more to the point, the importance of plea

negotiations in his case. In one of the conversations between T.D.S. and the expert,

T.D.S. demonstrated a “good understanding” of T.D.S.’s prior experience with the

juvenile criminal justice system, being able to discuss his theft adjudication when he

was nine years old and the aggravated riot charge stemming from fights T.D.S. was

involved in after entering the juvenile detention center.

Neither expert opined to a reasonable degree of the requisite certainty

that T.D.S. was incompetent to stand trial in absolute terms, but instead, one of the

experts claimed that competency could be attained through the competency

attainment program. In other words, the competency issue was not based on mental

or medical issues, but focused on T.D.S.’s age and ability to comprehend the process

to ensure the proper interaction with his attorney. The other expert, however, could

not opine to a reasonable degree of medical certainty that T.D.S. needed additional

programs to attain competency. Instead, he merely gave deference to the other

expert’s conclusion but presumed T.D.S. was competent based on his evaluation and

T.D.S.’s lack of cooperation with that process. Based on the competing evaluations,

the juvenile court concluded that T.D.S. was competent to stand trial without

undergoing the additional programs.

Following the trial, the juvenile court found T.D.S. delinquent for acts

that constituted felony murder, felonious assault, tampering with evidence, and

having a weapon while under disability, along with attendant firearm specifications.

Following the dispositional hearing, at which T.D.S. was committed to the custody

of ODYS, the trial court imposed the adult sentences under the serious youth

offender specifications that included a sentence of 15 years to life for the felony

murder count, 8 to 12 years for the felonious assault counts, and 3 years for the

tampering with evidence and having weapons while under disability counts. If the

adult sentences were to be invoked, the juvenile court imposed those to be served

concurrently.

In the first assignment of error, T.D.S. claims the trial court abused

its discretion by finding him competent to stand trial because the undisputed

evidence demonstrated that his competency was contingent on participating in the

competency attainment program. T.D.S.’s claim is not supported by the record.

Competency determinations for juvenile delinquency cases are

governed by R.C. 2152.51 to 2152.59. R.C. 2152.56(B) mandates that a competency

assessment report shall address the child’s capacity to (1) understand and appreciate

the allegations against the child; (2) understand the adversarial nature of the

proceedings, including the role of the trial participants; (3) assist in the child’s own

defense and communications with counsel; (4) comprehend and appreciate the

consequences of the juvenile delinquency proceeding. In re S.D., 8th Dist. Cuyahoga

No. 99763, 2014-Ohio-2528, ¶ 13-14. After conducting a hearing on the matter, after

the competency issue is properly brought to the juvenile court’s attention, a written

decision must be issued within 15 days based on the preponderance of the evidence

standard. In re A.H., 12th Dist. Brown No. CA2017-05-005, 2018-Ohio-364, ¶ 13,

citing R.C. 2152.58(A).

In this case, T.D.S.’s sole claim is that the trial court committed

prejudicial error by finding him competent to stand trial despite what T.D.S. believes

to be the undisputed evidence of both experts. As alluded to earlier, the experts

disagreed as to the ultimate conclusion of whether T.D.S. required additional

counseling to attain competency to stand trial. T.D.S.’s claim is, therefore, factually

misplaced. At least one of the experts opined that T.D.S. was presumptively

competent based on his evaluation, but the expert stated in the alternative and in

deference to his colleague’s opinion, that T.D.S.’s attendance in the competency

attainment program would not be detrimental and would solidify T.D.S.’s

understanding of the juvenile criminal justice system. The trial court did not err by

accepting one expert’s opinion in consideration of the remaining evidence presented

on the issue. In light of the fact that T.D.S.’s argument is based on a claim that is

not supported by the record, the first assignment of error is overruled.

In the second assignment of error, T.D.S. claims that the trial court

erred in denying his motion to suppress any and all statements made following his

being notified of his constitutional rights to an attorney and to remain silent.

Although the officers began a consensual discussion with T.D.S. in the presence of

his mother, T.D.S. made an incriminating statement after an approximately hour-

long discussion, causing the interviewing officers to administer the constitutionally

required advisements of T.D.S.’s rights. T.D.S. stated his understanding of his

rights, and his mother was present at this point in the interview. Both T.D.S. and

his mother were seated on the living room couch where the conversation took place.

T.D.S. did not request an attorney and subsequently led police officers to a location

where T.D.S. claimed to have disposed of the firearm that was used in the shooting.

“Appellate review of a motion to suppress presents a mixed question

of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. With regard to factual determinations, “[a]n appellate court must accept the

trial court’s findings of fact if they are supported by competent, credible evidence.”

State v. Hawkins, 158 Ohio St.3d 94, 2019-Ohio-4210, 140 N.E.3d 577, ¶ 16, citing

State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). “But the appellate

court must decide the legal questions independently, without deference to the trial

court’s decision.” Id., citing Burnside at ¶ 8.

It is well settled that juvenile suspects or offenders are entitled to

protection against compulsory self-incrimination under the Fifth Amendment of the

federal Constitution, and to Miranda warnings advising of the right to an attorney.

In re M.W., 8th Dist. Cuyahoga No. 94737, 2010-Ohio-6362, ¶ 20-21. “‘Any

statements made by a suspect may not be used in evidence where those statements

were made during a custodial interrogation unless Miranda warnings were properly

given to the suspect.’” Id., quoting In re [N.F.], 3d Dist. Auglaize No. 2-09-20, 2010-

Ohio-2826, ¶ 27. Reviewing courts examine the totality of the circumstances

surrounding the waiver in determining whether a juvenile has properly waived his

Miranda rights. Id. These circumstances include, “‘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., quoting State v. Brinkley, 105 Ohio St.3d

231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 57, and State v. Edwards, 49 Ohio St.2d

31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus. “A juvenile’s access to

advice from a parent, guardian or custodian also plays a role in assuring that the

juvenile’s waiver is knowing, intelligent, and voluntary.” State v. Barker, 149 Ohio

St.3d 1, 2016-Ohio-2708, 73 N.E.3d 365, ¶ 24, citing In re C.S., 115 Ohio St.3d 267,

2007-Ohio-4919, 874 N.E.2d 1177, ¶ 96; but see In re Watson, 47 Ohio St.3d 86, 89-

90, 548 N.E.2d 210 (1989) (“We perceive no requirement in Miranda that the

parents of a minor shall be read his constitutional rights along with their child, and

that, by extension, both parent and child are required to intelligently waive those

rights before the minor makes a statement.”).

According to the transcript of the proceedings, T.D.S. moved to have

his statements to police officers suppressed because the officers failed to provide the

constitutional advisement at the start of the interview that occurred in T.D.S.’s home

and in the presence of his mother. T.D.S. claims that his limited involvement with

the juvenile justice system, having been adjudicated delinquent for a “low-level

felony” when he was nine years old, and his diagnosis of borderline intellectual

functioning with a full-scale IQ of 60 precluded him from intelligently waiving his

constitutional rights upon receiving the advisement an hour into the initial

interview. Further, T.D.S. claims that the police interview tactics were coercive and

were known to elicit false confessions in children. The state claimed that the initial

interaction with the police officers did not constitute a custodial interrogation, and

therefore, the constitutional advisement was not required.

The trial court, after the hearing, concluded that any statements

T.D.S. made to officers before being advised of his constitutional rights were

inadmissible, but that the remainder of T.D.S.’s admissions were admissible since

he waived his right to remain silent and to have counsel present.

In this appeal, T.D.S. claims the trial court erred as a matter of law by

failing to suppress T.D.S.’s statements following the advisement. Although the state

claims that the juvenile court erred by finding the initial interview to be a custodial

interrogation, that issue was not timely or properly preserved. In re M.M., 135 Ohio

St.3d 375, 2013-Ohio-1495, 987 N.E.2d 652, syllabus (state cannot appeal a

suppression decision at the conclusion of trial). The sole issue is whether T.D.S.’s

post-advisement statements are admissible.

On this point, there is no factual dispute. T.D.S.’s claims focus on the

application of the facts to the law. In support of his claim, T.D.S. cites In re A.L.,

2020-Ohio-4061, 157 N.E.3d 350, ¶ 20 (8th Dist.). In that case, the juvenile court

denied a motion to suppress statements made following the police providing the

child offender his constitutional advisements. The court concluded that the

delinquent child was ten years old at the time of the crimes, but displayed a higher

intellectual understanding because he did not demonstrate any difficulty

understanding or answering police questions. Id. at ¶ 11. Further, although the child

had no prior involvement in the criminal justice system, the trial court noted that

the interview preceding the constitutional advisements, conducted in a calm and

monotone demeanor for the first half of the interview, lasted almost two hours. Id.

at ¶ 12. The panel disagreed with the trial court’s factual conclusions, finding that

the juvenile will was “overborne by the police interrogation he was subjected to

without adult consultation at the age of ten.” Id. at ¶ 20. Accordingly, the panel

concluded that the juvenile’s confession was involuntary and obtained in violation

of his constitutional rights, a conclusion that was also applied to what was deemed

an ineffective Miranda advisement. Id. at ¶ 22, 38.

In re A.L. is factually inapposite. T.D.S.’s mother was present during

the entire interview, including the advisement that was given while T.D.S. and his

mother sat next to each other on the living room couch. T.D.S. was 15 years old and

had experience with the criminal justice system. Although his full-scale IQ was

borderline, both experts placed his verbal acumen in a higher category, supporting

the notion that T.D.S. may have been malingering to some degree. In re N.J.M.,

12th Dist. Warren No. CA2010-03-026, 2010-Ohio-5526, ¶ 27 (diminished cognitive

abilities do not mean any statements are involuntary, especially where appellant did

not have much difficulty understanding the officer’s questions). The interviewing

police officer believed T.D.S. to be savvy enough to question the statements about

the alleged evidence that were being made in the interview, demonstrating a basic

understanding of the criminal justice process. 1 In re M.W., 8th Dist. Cuyahoga No.

94737, 2010-Ohio-6362, at ¶ 22. And further, the police officers’ questioning did

not constitute coercive tactics. In re M.J.C., 12th Dist. Butler No. CA2014-05-124,

2015-Ohio-820, ¶ 18, citing N.J.M. at ¶ 20. (“Coercive law enforcement tactics

include, but are not limited to, physical abuse, threats, deprivation of food, medical

treatment or sleep, use of certain psychological techniques, exertion of improper

influences or direct or implied promises, and deceit.”) Accordingly, we cannot

1 In this appeal, and again repeated during oral argument, T.D.S. claims that

officers lied to him during his interview regarding an eyewitness identification, DNA

evidence, and gunshot-residue testing. None of those claims were addressed during the

suppression hearing, and T.D.S. has not specifically identified any of the challenged

statements. App.R. 16(A)(7). From the transcript of the suppression hearing, however,

when confronted with the evidence, T.D.S.’s response was more sophisticated than

anticipated by the officers, with T.D.S. challenging the officers’ statements. Even if the

officers’ statements could be construed as deceitful, T.D.S. demonstrated an ability to

challenge the officers so that any alleged deceit cannot be considered under the totality of

the circumstances as infringing on his constitutional rights. State v. Ford, 158 Ohio St.3d

139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 196.

conclude that the trial court erred in denying the motion to suppress and the second

assignment of error is overruled.

In the third assignment of error, T.D.S. claims his convictions for

purposeful murder in violation of R.C. 2903.02(A) and tampering with evidence

were against the weight of the evidence because there was no evidence that T.D.S.

purposefully murdered the victim and the police were unable to recover the firearm

for the purposes of the tampering with evidence charge. The purposeful murder

charge was deleted from the superseding indictment. T.D.S. was convicted of felony

murder under R.C. 2903.02(B), a strict liability offense. State v. Owens, 162 Ohio

St.3d 596, 2020-Ohio-4616, 166 N.E.3d 1142, ¶ 10, citing State v. Fry, 125 Ohio St.3d

163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 43 (“R.C. 2903.02(B), the felony-murder

statute, does not contain a mens rea component”). In light of that fact, we will limit

the discussion to T.D.S.’s claim with respect to the tampering with evidence charge.

When reviewing a claim challenging the weight of the evidence, the

court, reviewing the entire record, must weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether, in

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

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

new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983). When a court of appeals concludes that a verdict is against the weight of

the evidence, “the appellate court sits as the ‘thirteenth juror’ and disagrees with the

factfinder’s resolution of the conflicting testimony.” Id. “[A]n appellate court’s

disagreement with the [finder of fact’s] weighing of the evidence does not require

the special deference accorded verdicts of acquittal.” Id. at 388. A judgment of

conviction should be reversed as against the manifest weight of the evidence only in

the exceptional case in which the evidence weighs heavily against the conviction. Id.

at 387, citing Martin at 175. This is not that exceptional case based on the arguments

presented. App.R. 16(A)(7).

T.D.S. claims that because the police officers were unable to locate the

firearm, he could not be convicted of tampering with evidence as defined under R.C.

2921.12(A)(1), which provides that “no person, knowing that an official proceeding

or investigation is in progress, or is about to be or likely to be instituted, shall * * *

conceal, or remove any * * * thing, with purpose to impair its value or availability as

evidence in such proceeding or investigation.” We find no merit to T.D.S.’s claim.

T.D.S. was convicted of felonious assault and having a weapon while

under disability for his conduct in shooting the victim with the firearm that T.D.S.

concealed following the shooting. T.D.S. admitted to the officers that he disposed of

the weapon after the shooting. The fact that the weapon was purposefully concealed

and never recovered only bolsters the conviction. State v. Shirley, 8th Dist.

Cuyahoga No. 107449, 2019-Ohio-1888, ¶ 25-26 (hiding a firearm after committing

a crime constitutes the crime of tampering with evidence); State v. McGee, 1st Dist.

Hamilton No. C-150496, 2016-Ohio-7510, ¶ 29. Regardless, this is not the

exceptional case warranting appellate intervention under the standard of review

T.D.S. invoked.

And finally, in the fourth assignment of error, T.D.S. claims he was

denied effective assistance of counsel for the failure to file a motion to dismiss the

purposeful murder and having weapons while under disability charges advanced in

the original indictment after the juvenile court found no probable cause that he

committed acts constituting those offenses.

“[A]ppellate courts generally review ineffective assistance of counsel

claims on a de novo basis * * *.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.2d 77, ¶ 53. In order to prevail on an ineffective assistance of counsel

claim, the defendant must show that his trial counsel’s performance was deficient

and that the deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 49. “[A] court must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance * * *.” Strickland at 689. To establish prejudice,

the defendant must demonstrate there is a “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694.

We need not dwell on this issue. T.D.S. cannot demonstrate prejudice

in this case because the original indictment impacted by the probable-cause

determination was not the source of the charges for which T.D.S. stood trial. The

state issued a superseding indictment after the probable-cause hearing, mooting any

issues with respect to the allegations advanced in the original indictment. T.D.S. has

not addressed the procedural posture of this case, so regardless of what would have

occurred following the probable-cause hearing, we must review the superseding

indictment as the source of the operative allegations. In light of the juvenile court’s

finding T.D.S. delinquent on the weapon while under disability charge advanced in

the superseding indictment, in part based on T.D.S.’s concession to having a prior

qualifying offense, we are unable to conclude that any prejudice could arise from

T.D.S.’s claimed error. The fourth assignment of error is overruled.

Based on the foregoing, we affirm.

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. The

finding of delinquency having been affirmed, any bail or stay of execution pending

appeal is terminated. Case remanded to the trial court for execution of commitment.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______

SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., CONCURS;

EILEEN T. GALLAGHER, J., CONCURS IN JUDGMENT ONLY