[Cite as In re T.A., 2011-Ohio-6273.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 96499 

IN RE: T.A. 

A Minor Child

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Juvenile Division 

Case No. DL 10113144 

BEFORE: E. Gallagher, J., Stewart, P.J., and Jones, J. 
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RELEASED AND JOURNALIZED: December 8, 2011 

 ATTORNEY FOR APPELLANT

Ohio Public Defender 

BY: Brooke M. Burns 

Assistant Public Defender 

250 East Broad Street 

Suite 1400 

Columbus, Ohio 43215 

ATTORNEYS FOR APPELLEE, C.S.E.A.

William D. Mason 

Cuyahoga County Prosecutor 

BY: Justin S. Gould 

Assistant County Prosecutor 

Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

EILEEN A. GALLAGHER, J.: 

{¶ 1} T.A., a minor child, appeals his adjudication of delinquency in 

the Cuyahoga County Court of Common Pleas, Juvenile Division.1 T.A. 

argues that the trial court erred by admitting impermissible evidence and 

that his adjudication of delinquency was against the manifest weight of the 

evidence. Finding no merit to this appeal, we affirm the decision of the trial 

 1

The parties are referred to herein by their initials or title in accordance with this court’s 

established policy regarding non-disclosure of identities in juvenile cases.
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court. 

{¶ 2} On July 21, 2010, the state of Ohio filed a complaint against T.A. 

charging him with two counts of felonious assault with one and three-year 

firearm specifications stemming from events that occurred on May 16, 2010. 

On January 18, 2011, T.A. appeared before the Juvenile Court with his 

parents for an adjudicatory hearing where he was represented by counsel. 

{¶ 3} During the hearing, M.B., a minor child and one of the victims in 

this case, testified that on May 16, 2010, he and T.A. got into a physical 

altercation. On that date, M.B. along with his three friends, “Butter,” 

“Mainline,” and “Dion,” were on East 83rd Street and Superior Avenue when 

they observed T.A. M.B. and his friends approached T.A. in order that M.B. 

could confront him. M.B. testified that he and T.A. had a history of fighting 

and they engaged in a physical altercation with each other on that date. 

M.B. admitted that he and his three friends fought T.A. and that the fight 

ended when a neighbor threatened to call the police. 

{¶ 4} M.B. testified that approximately forty-five minutes later, he 

was at his home on East 86th Street with his mother, A.P. A.P., the second 

victim in this case, testified that she was standing in the doorway, looking 

out into the street when she saw T.A. along with three other boys walking 

towards her house. A.P. told her son that T.A. was outside and that he 
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should go out to learn what T.A. wanted. A.P. testified that as her son was 

putting on his shoes, she observed T.A. reach his hand behind his back and 

then raise a gun towards the house. A.P. told her son to stay inside the 

house, that T.A. had a gun. 

{¶ 5} A.P. made an in-court identification of T.A. as the individual 

pointing a gun towards her house and testified that one of the unidentified 

youths also had a weapon. A.P. testified that as she stood in her doorway, 

T.A. and the other male began shooting at her house. A.P. and her son ran 

upstairs as bullets entered their home and then called 911. Because M.B. 

never went outside, he never observed T.A. with a gun, nor did he see T.A. 

shoot at his home. 

{¶ 6} Although A.P. testified that she identified T.A. as the shooter 

when the officers responded to her 911 call on May 16, 2010, her testimony 

was inconsistent as to when she actually identified T.A. A.P. testified that 

she knew that her son and T.A. had a history of fighting, even admitting that 

five years earlier she observed a video of her son and T.A. fighting on school 

property. A.P. stated that she could identify T.A. as the shooter because she 

knew him from the neighborhood, and more specifically, from hanging out at 

the corner store on East 79th and Superior. Additionally, A.P. reported that 

T.A. had come to her mother’s home, which was next to her residence, one 
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year prior to the shooting looking for her son. A.P. admitted on 

cross-examination that she knew T.A. from photographs he posted on his 

Myspace page. 

{¶ 7} On re-direct, the state questioned A.P. about her knowledge of 

T.A.’s Myspace page. She testified, over objection, that after the shooting, 

Alicia Walker, a woman whom she knows, came to her house with a printout 

from T.A.’s Myspace page that contained an admission from T.A. to the 

shooting at her home in addition to threats that he would do it again. The 

court also allowed A.P. to testify concerning a voice recording that allegedly 

captured T.A. admitting to the shooting at her home. Neither the printout 

from Myspace or the recording were produced at trial. 

{¶ 8} The state next presented Detective Darryl Johnson, who testified 

that he photographed the crime scene, and Mr. Lonnie Tolbert, a neighbor of 

 A.P., who testified that he heard gunshots at approximately 7:00 p.m. on 

the night of May 16, 2010. Neither Detective Johnson nor Mr. Tolbert were 

able to identify T.A. as the shooter. 

{¶ 9} In the defense case-in-chief, T.A. testified that on the night of 

May 16, 2010, M.B., Butter, and Dion “jumped him,” knocking out one of his 

teeth. T.A. further stated that one of the nearby residents called the police, 

who arrived on the scene and detained him at approximately 7:00 p.m. on 
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East 83rd and Superior. T.A. stated that he was being questioned by two 

officers when they received a call that shots had been fired on East 86th 

Street. T.A. had reported to police that M.B., Dion, Butter, and Mainline 

were the individuals who jumped him and he presented himself to the 

hospital on May 17, 2010 for treatment for his tooth. Lastly, T.A. testified 

that police officers did not question him about the shooting until July 18, 

2010, more than two months after the alleged incident occurred. 

{¶ 10} Following the presentation of evidence as outlined above, the 

court noted that it would not be giving the evidence concerning T.A.’s 

Myspace page any weight because the original printout had not been 

produced. Nonetheless, the court adjudicated T.A. delinquent of two counts 

of felonious assault with three-year firearm specifications. On August 23, 

2011, the court dismissed both one-year firearm specifications and sentenced 

T.A. as follows: for both charges of felonious assault, the court committed 

T.A. to the Ohio Department of Youth Services for an indefinite term of 12 

months to a period not to exceed T.A.’s 21st birthday with the counts to run 

concurrently; and one year on each of the three-year firearm specifications to 

be served consecutively to the underlying sentence. 

{¶ 11} T.A. appeals, raising the two assignments of error contained in 

the appendix to this opinion. 
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{¶ 12} In his first assignment of error, T.A. argues the trial court erred 

when it allowed A.P. to testify as to the contents of T.A.’s Myspace page 

because it violated the requirements of the best evidence rule. Although we 

agree with the crux of T.A.’s claim, we overrule his assigned error. 

{¶ 13} “[T]he admission or exclusion of evidence is generally within the 

sound discretion of the trial court and a reviewing court may reverse only 

upon the showing of an abuse of that discretion.” Anderson v. Anderson, 147 

Ohio App.3d 513, 529, 2002-Ohio-1156, 771 N.E.2d 303; State v. Coulter 

(1992), 75 Ohio App.3d 219, 227, 598 N.E.2d 1324. The admissibility of 

evidence is predicated on whether or not the evidence is relevant. Evid.R. 

402. Evidence is relevant where it has a “tendency to make the existence of 

any fact that is of consequence to the determination of the action more 

probable or less probable than it would be without the evidence.” Evid.R. 

401. Therefore, the test for relevancy is a broad examination of the 

evidence. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 

864. However, even relevant evidence may not be admitted where “its 

probative value is substantially outweighed by the danger of unfair 

prejudice, of confusion of the issues, or of misleading the jury.” Evid.R. 403. 

 See, also State v. Sims, Butler App. No. CA2007-11-300, 2009-Ohio-550. 

{¶ 14} In the present case, defense counsel attempted to impugn A.P.’s 
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identification of T.A. as the shooter. More specifically, as the only witness 

able to identify T.A. as the shooter, defense counsel sought to explore A.P.’s 

familiarity with T.A. Defense counsel learned that although A.P. did 

observe T.A. on prior occasions, the most recent interaction with T.A. was 

over a year prior to the shooting. The other ways A.P. identified T.A. was 

through a video of T.A. and her son fighting that she observed five years 

prior to the shooting, and by having seen T.A. around the neighborhood at 

unidentified periods. Lastly, A.P. admitted on cross-examination that one of 

the ways she was able to identify T.A. as the shooter was through 

photographs she observed on his Myspace page. On re-direct and over 

objection by T.A.’s trial counsel, A.P. outlined how, after the shooting, she 

saw a printout from T.A.’s Myspace page wherein he admitted to shooting 

her home and threatened further violence against the home. 

{¶ 15} Further, admission of the contents of a document requires that 

the original writing be available. Evid.R. 1002. While the state argues 

that Evid.R. 1004(3) applies as an exception to the best evidence rule, we 

disagree. Evid.R. 1004(3) states that the original is not required and that 

other evidence of the writing may be admissible if “[a]t a time when an 

original was under the control of the party against whom offered, that party 

was put on notice, by the pleadings or otherwise, that the contents would be 
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subject of proof at the hearing, and that party does not produce the original 

at the hearing.” While T.A. is certainly in control of the contents of his own 

Myspace page, the defense was never put on notice that the contents of T.A.’s 

alleged Myspace page would be the subject of proof at trial. More 

importantly, defense counsel repeatedly objected to the state’s questions 

regarding the Myspace contents stating that he had not been provided with 

an opportunity to see or review the information and said the Myspace page 

was never authenticated. 

{¶ 16} Nonetheless, prior to adjudging T.A. delinquent, the trial court 

stated that it would not be giving any of the evidence concerning T.A.’s 

alleged Myspace page any weight because the original printout had not been 

produced. As such, we are forced to conclude that the trial court’s erroneous 

admission of the contested testimony during trial was harmless error. The 

trial court clearly stated that it did not give the evidence any weight. As 

such, we cannot state that the trial court abused its discretion. 

{¶ 17} T.A.’s first assignment of error is overruled. 

{¶ 18} In his second assignment of error, T.A. argues that his 

convictions are against the manifest weight of the evidence. We disagree. 

{¶ 19} In evaluating a challenge based on manifest weight of the 

evidence, a court sits as the thirteenth juror, and intrudes its judgment into 
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proceedings that it finds to be fatally flawed through misrepresentation or 

misapplication of the evidence by a jury that has “lost its way.” State v. 

Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. As the Ohio 

Supreme Court declared: 

“Weight of the evidence concerns ‘the inclination of the greater amount 

of credible evidence, offered in a trial, to support one side of the issue 

rather than the other. It indicates clearly to the jury that the party 

having the burden of proof will be entitled to their verdict, if, on 

weighing the evidence in their minds, they shall find the greater 

amount of credible evidence sustains the issue which is to be 

established before them. Weight is not a question of mathematics, but 

depends on its effect in inducing belief.’ 

* * * 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.” 

(Citations omitted.) Id. at 387. 

{¶ 20} This court is mindful that weight of the evidence and the 

credibility of witnesses are primarily for the trier of fact and a reviewing 

court must not reverse a verdict where the trier of fact could reasonably 

conclude from substantial evidence that the state has proven the offense 

beyond a reasonable doubt. State v. DeHass (1967), 10 Ohio St.2d 230, 227 

N.E.2d 212, at paragraphs one and two of the syllabus. The goal of the 
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reviewing court is to determine whether the new trial is mandated. A 

reviewing court should only grant a new trial in the “exceptional case in 

which the evidence weighs heavily against a conviction.” State v. Lindsey, 

87 Ohio St.3d 479, 2000-Ohio-465, 721 N.E.2d 995. (Internal citation 

omitted.) 

{¶ 21} We decline to find such an exceptional case here. In support of 

its case, the state presented the testimony of A.P. who testified in great 

detail about the shooting. More specifically, A.P. repeatedly identified T.A. 

as the individual who appeared in front of her home on the night of May 16, 

2010. She told her son T.A. was standing outside of her house with a gun 

and shortly thereafter, she testified that she observed T.A. shoot into her 

home. Although A.P.’s identification testimony of T.A. as the shooter was 

muddied by the court’s erroneous admission of the Myspace testimony, A.P. 

clearly identified T.A. as the shooter in court. Further, A.P. testified that 

she told police officers on May 16, 2010 that T.A. was the shooter. 

{¶ 22} Though T.A. argues that his version of events should have been 

relied upon by the trial court, the trier of fact is in the best position to weigh 

the evidence and the credibility of witnesses. As the reviewing court, we 

find that the trier of fact could reasonably conclude from the substantial 

evidence presented by the state, that the state has proven the offenses 
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beyond a reasonable doubt. Accordingly, we cannot state that the trier of 

fact lost its way and created such a manifest miscarriage of justice that the 

convictions must be reversed and a new trial ordered. 

{¶ 23} T.A.’s second assignment of error is overruled. 

{¶ 24} The judgment of the trial court 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 be sent to said lower court 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. 

 

 

EILEEN A. GALLAGHER, JUDGE 

MELODY J. STEWART, P.J., and 

LARRY A. JONES, J., CONCUR 

Appendix 
13

Assignments of Error: 

“I. The juvenile court erred when, over defense counsel’s 

objection, it permitted the State to introduce into evidence, 

testimony about the contents of what was alleged to be T.A.’s 

Myspace account, without requiring the State to produce an 

original printout or recording of the Myspace page contents. 

Evid.R. 1002. This was done in violation of T.A.’s right to due 

process.” 

“II. The juvenile court violated T.A.’s right to due process 

under the Fifth and Fourteenth Amendments to the United 

States Constitution and Article I, Section 16 of the Ohio 

Constitution when it adjudicated him delinquent of felonious 

assault with a firearm specification, when that decision was 

against the manifest weight of the evidence.”