IN RE L.S.
No. 110351
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 23, 2021
2021-Ohio-3353
EILEEN A. GALLAGHER, J.
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
:
IN RE L.S. :
: No. 110351
A Minor Child :
:
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; VACATED IN
PART; REMANDED
RELEASED AND JOURNALIZED: September 23, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL-20-103818
Appearances:
Fred D. Middleton, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Margaret Graham, Assistant Prosecuting
Attorney, for appellee.
EILEEN A. GALLAGHER, J.:
{¶ 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”
{¶ 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.
Factual Background and Procedural History
{¶ 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 R.C. 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
{¶ 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
{¶ 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 sеveral 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.
{¶ 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
{¶ 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 “blоcked” 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
{¶ 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 wеaring 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 jacket and the male wearing all black — run towards J.S., with L.S. leading the way. As the three youths get closer to J.S., the male wearing all black tosses a gray or silver object to the male wearing the grey jacket. L.S. and the male wearing a grey jacket approach J.S. as he reaches the area where several cars are parked. The surveillance video shows the males interact with J.S. briefly, then L.S. and the male in the grey jacket move towards a white vehiclе. The male in the grey jacket opens the door of the white vehicle, gets inside,2 drives it out of the parking lot until the vehicle hits the curb and stops in the middle of the street. The male in
{¶ 15} As the male in gray jacket got into the vehicle and drove it out of the parking lot, the surveillance video shows J.S. running back towards his apartment and L.S. running back towards the alley.
{¶ 16} J.S. identified the alley and parking lot depicted in the video CD as the alley and parking lot for his apartment complex where the incident occurred. J.S. also identified himself and L.S. in the surveillance video footage included on the video CD. As the state played the video CD during his testimony, J.S. described what was depictеd in the video — i.e., J.S. walking to the car, the three males “running up” to him, the perpetrator in black tossing a gun to the perpetrator in grey who then handed the gun to L.S., J.S. backing up as L.S. pointed the gun at him, J.S. giving the car keys to L.S. and the perpetrator in grey getting into the car and driving out of the parking lot as J.S. ran back to his apartment. J.S. testified that he did not personally observe the perpetrator in black toss a gun to the perpetrator in grey; he only saw it on the surveillance video. He stated that he did, however, personally observe the perpetrator in grey “throw” a gun to L.S. as the males approached him, which L.S. then pointed at J.S.
{¶ 17} The state also played the video CD during Detective Florentz’s testimony. Detective Florentz identified L.S. as the male wearing “maroon pants, black zip-up hoodie, black mask” observed in thе surveillance video and described
{¶ 18} Detective Florentz testified that the surveillance video footage on the video CD was “a fair and accurate depiction” of the surveillance footage police had recovered relating to the incident. He stated that the surveillance video footage was consistent with J.S.’s version of evеnts but was not consistent with what L.S. had told him had occurred.
{¶ 19} L.S.’s trial counsel did not object to the video CD or to the witnesses’ testimony relating to the surveillance video footage. L.S. did not present any witnesses at the hearing.
{¶ 21} On January 21, 2021, the juvenile court held a dispositional hearing. At the dispositional hearing, the juvenile court found that the aggravated robbery, robbery and grand theft counts were allied offenses that merged for disposition and that the one-year firearm specifications merged with the three-year firearm specifications. On the aggravated robbery count, the juvenile court sentenced L.S. to a minimum two-year term in the Ohio Department of Youth Services, i.e., one year on the three-year firearm specification to be served prior to and consecutively to one year on the underlying offenses. On the criminal damaging or endangering count, the juvenile court sentenced L.S. to 78 days in the detention center, with credit for 78 days served. The juvenile court also imposed a $1,500 fine on the aggravated robbery count, a $400 fine on the grand theft count and a $100 fine on the criminal damaging and endangering count — all of which were suspended — and ordered L.S. to pay $250 in restitution to the victim. The juvenile court judge indicated that “[s]ince the Court found that Counts 2, 3 and 4 are allied offenses and they merge with Count 1, I will not impose a fine * * * on those.”4
{¶ 22} On January 25, 2021, the juvenile court issued a written journal entry, setting forth its disposition of the case. The journal entry stated that L.S. was
- As to Count 1, aggravated robbery — to ODYS for a minimum period of 12 months and a maximum period not to exceed L.S.’s attainment of 21 years of age, plus one year each on the three-year and one-year firearm specifications, to be served prior to and consecutive to the sentence on the underlying offense but concurrently to each other.
- As to Count 2, robbery — to ODYS for a minimum period of 12 months and a maximum period not to exceed L.S.’s attainment of 21 years of age, plus one year each on the three-year and one-year firearm specifications, to be served prior to and consecutive to the sentence оn the underlying offense but concurrently to each other.
- As to Count 3, robbery — to ODYS for a minimum period of 12 months and a maximum period not to exceed L.S.’s attainment of 21 years of age, plus one year each on the three-year and one-year firearm specifications, to be served prior to and consecutive to the sentence on the underlying offense but concurrently to each other.
- As to Count 4, robbery — to ODYS for a minimum period of six months and a maximum period not to exceed L.S.’s attainment of 21 years of age, plus one year each on the three-year and one-year firearm specifications, to be served prior to and consecutive to the sentence on the underlying offense but concurrently to each other.
- As to Count 5, grand theft — to ODYS for a minimum period of six months and a maximum period nоt to exceed L.S.’s attainment of 21 years of age, plus one year each on the three-year and one-year firearm specifications, to be served prior to and consecutive to the sentence on the underlying offense but concurrently to each other.
- As to Count 6, criminal endangering — a 78-day sentence in the detention center, with credit given for 78 days.
{¶ 23} The journal entry set forth the fines imposed as follows:
The child is ordered to pay fines in the amount of $1500.00 as to count (1) and [$]400.00 as to count (6). There is [sic] no fines assessed in counts 2, 3, 4 and 5 because these are considered allied offenses. It is further ordered that said fines are suspended.
{¶ 24} L.S. appealed, raising the following two аssignments of error for review:
Assignment of Error No. 1: The juvenile court erred in failing to merge appellant’s adjudications and dispositions for aggravated robbery and robbery as “allied offenses of similar import” and * * * the failure to merge the adjudications violated the double-jeopardy protections contained in the United States and Ohio Constitutions.
Assignment of Error No. 2: The trial counsel was ineffective by not filing motions to suppress the “cold-stand” and surveillance video and objecting to the use of that evidence in trial.
Law and Analysis
Multiple Sentences on Allied Offenses
{¶ 25} In his first assignment of error, L.S. contends that the juvenile court erred when it imposed separate sentences on the robbery and grand theft counts (Counts 2-5) after it determined that they were allied offenses of similar import and merged with the aggravated robbery count (Count 1). We agree.
{¶ 26} As the Ohio Supreme Court has stated, “juvеniles are entitled to the same constitutional double-jeopardy protections as adults” and “juvenile courts must conduct the same double-jeopardy analysis in delinquency proceedings that other courts apply in adult criminal proceedings.” In re A.G., 148 Ohio St.3d 118,
{¶ 27}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{¶ 29} At the dispositional hearing, the juvenile court determined that Counts 1-5 were allied offenses that merged and, therefore, imposed a sentence on only one of those counts,5 the juvenile court’s January 25, 2021 dispositional journal entry sets forth sentences on each of the five allied offenses, then orders that the sentences be served concurrently.
{¶ 30} The state asserts that because L.S.’s sentences for the allied offenses ran concurrently, he was “only punished for his delinquent actions a single time” and, therefore, “[j]eopardy occurred once, in compliance with the Ohio Revised Code, the Ohio Constitution and the Fifth Amendment.” However, “the imposition
{¶ 31} L.S.’s first assignment of error is sustained. L.S.’s dispositions on Counts 1-5 are vacated, and the matter is remanded to the juvenile court (1) to allow
Ineffective Assistance of Counsel
{¶ 32} In his second assignment of error, L.S. contends that he was denied the effective assistance of counsel because trial counsel failed to file a motion to suppress or to object to evidence of (1) J.S.’s “cold-stаnd” identification of L.S. and (2) the video CD containing surveillance video footage of the incident.
{¶ 33} “The Sixth Amendment to the United States Constitution guarantees an accused juvenile the same rights to effective assistance of counsel as an adult criminal defendant.” In re M.B., 8th Dist. Cuyahoga No. 106434, 2018-Ohio-4334, ¶ 54, citing In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). To establish ineffective assistance of counsel, the represented party must demonstrate: (1) deficient performance by counsel, i.e., that counsel’s performance fell below an objective standard of reasonable representation, and (2) that counsel’s errors prejudiced the party, i.e., a reasonable probability that but for counsel’s errors, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable probability” is “probability sufficient to undermine confidence in the outcоme.” Strickland at 694. L.S. has not met his burden here.
{¶ 34} In Ohio, every properly licensed attorney is presumed to be competent. State v. Black, 2019-Ohio-4977, 149 N.E.3d 1132, ¶ 35 (8th Dist.), citing
{¶ 35} The failure to file a motion to suppress is not per se ineffective assistance of counsel. See, e.g., State v. Musleh, 8th Dist. Cuyahoga No. 105305, 2017-Ohio-8166, ¶ 31; State v. Watts, 8th Dist. Cuyahoga No. 104188, 2016-Ohio-8318, ¶ 17, citing State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000). Rather, a trial counsel’s failure to file a motion to suppress constitutes ineffective assistance of counsel only if there is a reasonable probability that, had the motion to suppress been filed, it would have been granted and that suppression of the challenged evidence would have affected the outcome of the case. See, e.g., State v. Frierson, 2018-Ohio-391, 105 N.E.3d 583, ¶ 17 (8th Dist.); Musleh at ¶ 31. Counsel is not required to file a motion to suppress if doing so would be a futile act. See, e.g., Musleh at ¶ 31; State v. Armstrong, 8th Dist. Cuyahoga No. 103088, 2016-Ohio-2627, ¶ 30; State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶ 28 (‘“Even if some evidence in the record supports a motion to suppress, counsel is still
{¶ 36} Likewise, the failure to object is not per se ineffective assistance of counsel. ‘“Objecting is a tactical decision.’” Frierson at ¶ 25, quoting State v. Johnson, 7th Dist. Jefferson No. 16 JE 0002, 2016-Ohio-7937, ¶ 46. As a general matter, defense counsel’s tactical decisions and trial strategies, even “debatable” ones, do not constitute ineffective assistance of counsel. See, e.g., State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101, 111; Black, 2019-Ohio-4977, 149 N.E.3d 1132, at ¶ 35; State v. Foster, 8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186, ¶ 23. Reviewing courts “will ordinarily refrain from second-guessing strategic decisions counsel make at trial,” even where trial counsel’s strategy was “questionable” and even where appellate counsel asserts that he or she would have
Cold-Stand Identification
{¶ 37} In this case, L.S. contends that his counsel was ineffective for failing to file a motion to suppress or to object to evidence of J.S.’s cold-stand identification of L.S. because “[t]he evidence produced through a ‘cold stand’ was obtained under objectionable overly suggestive procedures used by the police.”
{¶ 38} A “cold-stand” identification is “a pretrial identification procedure whereby the police have a suspect into custody and ‘take him to be identified by a witness.’” In re S.A., 8th Dist. Cuyahoga No. 107707, 2019-Ohio-4782, ¶ 30, quoting In re T.H., 8th Dist. Cuyahoga No. 106433, 2018-Ohio-2300, ¶ 12. In considering the admissibility of a cold-stand identification, courts apply a two-prong test. State v. Davis, 8th Dist. Cuyahoga No. 101502, 2015-Ohio-1144, ¶ 19, 21. First, the defendant or alleged delinquent must show that the identifiсation procedure was “so impermissibly suggestive as to give rise to a substantial likelihood of misidentification.” Id. at 19-20; In re T.W., 2017-Ohio-8875, 100 N.E.3d 1239, ¶ 6 (8th Dist.); In re S.A. at ¶ 31-32.
{¶ 40} “Reliability” of the cold-stand identification is the “linchpin” in determining its admissibility. State v. Wright, 2d Dist. Montgomery No. 28831, 2021-Ohio-2133, ¶ 68. In other words, “[t]he purpose of the reliability inquiry is to determine whether the unduly suggestive nature of the identification was overcome by the reliability of the witness.” In re T.W. at ¶ 16. ‘“So long as the identification possesses sufficient aspects of reliability, there is no violation of due process’” and evidence of the cold-stand identification is admissible. Wright at ¶ 68, quoting State v. Sherls, 2d Dist. Montgomery No. 18599, 2002 WL 254144, 3 (Feb. 22, 2002); see also In re T.W. at ¶ 7 (‘“The focus is therefore upon the reliability of the identification
{¶ 41} As the Ohio Supreme Court has explained:
“There is no prohibition against a viewing of a suspect alone in what is called a ‘one-man showup’ when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy. * * *
“[P]olice action in returning the suspect to the vicinity of the crime for immediate identification in circumstances such as these fosters the desirable objectives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh.”
State v. Madison, 64 Ohio St.2d 322, 332, 415 N.E. 2d 272 (1980), quoting Bates v. United States, 405 F.2d 1104, 1106 (D.C.Cir.1968); see also In re S.A., 2019-Ohio-4782, at ¶ 33.
{¶ 42} L.S. does not identify what “overly suggestive procedures” he contends were used by police nor does he otherwise explain how the cold-stand identification was objectionable and why it should have been suppressed. Further, he fails to provide any citation to the record or authority to suppоrt his argument. See
{¶ 43} Even if we were to consider the issue, there is nothing in the record to indicate that the “cold stand” conducted in this case involved “overly suggestive procedures” or otherwise led to an unreliable identification of L.S. The incident occurred in the late afternoon or early evening in an area in which there was plenty of light. J.S. was in close proximity to the perpetrators and had ample opportunity to observe the perpetrators as he was being robbed.
{¶ 44} The cold stand was conducted shortly after the incident. Before the cold stand — and within five minutes after the incident — J.S. had already identified L.S. as one of the perpetrators to his mother. Within minutes after the robbery, J.S. also provided a detailed description of the perpetrators to police, which led police to promptly apprehend L.S. a short distance from the scene оf the incident.
{¶ 45} Detective Florentz testified that although J.S. was “shaken up” immediately following the incident, he was able to provide “a lot of details” about the incident and that his version of the events, including his description of the
{¶ 47} Further, J.S.’s cold-stand identification of L.S. was not the only evidence linking L.S. to the crime. Aside from his cold-stand identification of L.S., J.S. clearly and unequivocally identified L.S. in court (as well as to his mother prior to the cold stand) as the male who had pointed a gun at him, threatened to shoot him and took the keys to M.G.’s car from him. J.S.’s trial testimony was credible. In addition, L.S. was apprehended with a black mask that matched J.S.’s description of the masks worn by the perpetrators. L.S. has not shown that, even if trial counsel had filed a motion to suppress the cold-stand identification, it would have made a difference in the outcome of the case. Accordingly, we cannot say that L.S. was denied effective assistance of trial counsel based on counsel’s failure to file a motion to suppress or to object to evidence of J.S.’s cold-stand identification of L.S.
CD Containing Video Surveillance Footage
{¶ 48} With respect to trial counsel’s failure to object to the video CD, L.S. argues that the video CD was objectionable because it “was not supported by any testimony of who and how it was created nor what was left out of the video or changed from the different cameras and who owned or produced them” and that, therefore, it was not properly authenticated under
{¶ 50} Photographic evidence, including video evidence, is generally authenticated in one of two ways. See, e.g., State v. Davis, 2d Dist. Montgomery No. 28923, 2021-Ohio-1833, ¶ 20; State v. Rosemond, 2019-Ohio-5356, 150 N.E.3d 563, ¶ 58 (1st Dist.).
{¶ 52} In this case, Detective Florentz testified that police retrieved surveillance footage after the incident from “multiple cameras at the location,” that he had reviewed all of the surveillance footage obtained from that day and that the surveillance footage included on the video CD was “a fair and accurate depiction” of the surveillance footage police had recovered. Detective Florentz further testified that the parking lot depicted in the video footage on the video CD was the parking lot in which the incident had allegedly occurred and he identified L.S. as one of the alleged perpetrators observed in the video footage. J.S. similarly testified that the
{¶ 53} There is nothing in the record to suggest that the surveillance video footage included on the video CD had been distorted or compromised in any way or that it was otherwise an inaccurate portrayal of the events that occurred. Instead of objecting to the video CD, trial counsel chose to use the video surveillance footage in his cross-examination of witnesses — using it to test the recollections of witnesses, to challenge their credibility and to cast doubt on what they claimed occurred. Under the circumstances here, we cannot say that trial counsel’s failure to object to the admissibility of the video CD under
{¶ 55} L.S. asserts that, because J.S. testified that “he did not actually see the gun that was tossed and it was held in a grey sweatshirt pocket during the robbery,” “[t]he elements of armed robbery could not be proven” if the video CD and J.S.’s testimony regarding what he saw on the surveillance video had been excluded. We disagree.
{¶ 56} Although J.S. testified that he did not personally observe the perpetrator in black toss a gun to the perpetrator in grey — i.e., J.S. acknowledged that he only saw perpetrator in black toss a gun to the perpetrator in grey when viewing the surveillance video — he also testified that he personally observed the perpetrator in grey “throw” a gun to L.S. as the males aрproached him, which L.S. then pointed at him. J.S. testified clearly and unequivocally that L.S. pointed a gun at his stomach, threatening to shoot him if he did not give L.S. the car keys and identify the vehicle to which the keys belonged. J.S. further testified that he complied with L.S.’s demands because he “didn’t want to die.”
{¶ 57} The video CD did corroborate J.S.’s version of events and, based on the record before us, the state presented sufficient evidence to prove all of the elements of each of the offenses at issue, including “the firearm charges,” even without the video CD or any witness testimony regarding what could be observed
{¶ 58} L.S.’s second assignment of error is overruled.
{¶ 59} L.S.’s dispositions on Counts 1-5 are vacated, and the matter is remanded to the juvenile court first, to allow the state to elect the allied offense on which it wishes L.S. to be resentenced and second, for resentencing on that count. In addition, we note, sua sponte, that although, at the dispositional hearing, the juvenile court imposed a $100 fine, which it later suspended, on Count 6, in its January 25, 2021 journal entry, it imposed a $400 fine (suspended) on Count 6. Accordingly, this case is also remanded for the juvenile court to issue a nunc pro tunc journal entry correcting this error to reflect the fine imposed at the dispositional hearing.
{¶ 60} Judgment affirmed in part; vacated in part; remanded.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the Cuyahoga County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
________________________
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
EMANUELLA D. GROVES, J., CONCUR