[Cite as In re S.A., 2019-Ohio-4782.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

IN RE S.A., III, : 

A Minor Child : No. 107707 

 

 : 

 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED 

RELEASED AND JOURNALIZED: November 21, 2019 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Juvenile Division 

Case No. DL18107149 

 

Appearances: 

Timothy Young, Ohio State Public Defender, and Timothy 

Hackett, Assistant State Public Defender, for appellant. 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Nora Caitlin Bryan, Assistant Prosecuting 

Attorney, for appellee. 

MICHELLE J. SHEEHAN, J.: 

 The Cuyahoga County Court of Common Pleas Juvenile Court found 

that appellant S.A. III (“S.A.”) committed acts that, if committed by an adult, would 

constitute the offenses of robbery, in violation of R.C. 2911.02(A)(2) and 

2911.02(A)(3), and possessing criminal tools, in violation of R.C. 2923.24(A). S.A. 
appeals the court’s denial of his motion to suppress and the court’s adjudication of 

delinquency. Upon a thorough review of the record, we find (1) the juvenile court 

did not error in failing to determine S.A.’s motion to suppress before proceeding to 

a trial on the merits; (2) trial counsel was not ineffective in agreeing to defer the 

suppression hearing; (3) the victim’s identification at the cold-stand identification 

procedure was reliable; and (4) the juvenile’s court’s finding of delinquency was 

supported by the evidence. We therefore affirm the juvenile court’s denial of the 

motion to suppress and the court’s adjudication of delinquency. 

I. Procedural History and Substantive Facts 

On June 6, 2018, S.A. was charged in juvenile court as follows: Count 1 

— robbery in violation of R.C. 2911.02(A)(2); Count 2 —robbery in violation of 

R.C. 2911.02(A)(3); Count 3 — possessing criminal tools in violation of 

R.C. 2923.24(A); and Count 4 — failure to disclose personal information. At the 

time the complaint was filed, S.A. was 15 years old. 

The complaint stems from an incident that occurred at approximately 

10:00 p.m. on June 5, 2018, involving the victim, Barbara Blue, who reported to the 

Lakewood police department that she had been robbed in a neighbor’s driveway. 

After receiving Ms. Blue’s 911 call, an officer was dispatched to the victim’s location. 

Shortly thereafter, officers in the vicinity indicated that they had a suspect in custody 

matching the description given by the victim. The officers, after driving Ms. Blue to 

the suspect’s location, conducted a “cold-stand” or show-up identification, where 

Ms. Blue positively identified S.A. as the individual who had robbed her. 
On August 7, 2018, S.A. filed a timely motion to suppress the victim’s 

out-of-court identification. In support, S.A. argued that the “cold-stand” procedure 

of identification utilized by the Lakewood police officers was so impermissibly 

suggestive as to cause an unreliable identification, and the identification must 

therefore be suppressed. The state opposed the motion to suppress. The record 

demonstrates that sometime before the start of trial, the parties agreed to the court’s 

decision to defer its consideration of the motion to suppress until testimony had 

been presented by the witnesses at trial. Thereafter, on August 16, 2018, a bench 

trial proceeded. 

At the conclusion of the proceedings, the trial court heard from the 

parties on the alleged delinquent’s motion to suppress. Thereafter, the court made 

findings concerning the cold-stand procedure and the victim’s identification and it 

denied the motion to suppress. Defense counsel then moved for a Crim.R. 29 

dismissal, which the trial court denied as to Counts 1 through 3 but granted as to 

Count 4. Following closing arguments, the trial court found all of the elements of 

Counts 1 through 3 had been established. The court further found that the evidence 

established beyond a reasonable doubt that S.A. was the individual who committed 

the offenses. The court then adjudicated S.A. delinquent of Counts 1 through 3. 

Proceeding directly to disposition, the court committed S.A. to the department of 

youth services for a minimum period of 12 months and a maximum period not to 

exceed S.A.’s attainment of the age of 21 years. 
On September 24, 2018, S.A. appealed the court’s order denying his 

motion to suppress as well as the court’s adjudication. On January 4, 2019, S.A. filed 

a motion to supplement the appellate record with an investigating officer’s body 

camera video footage. According to S.A.’s appellate counsel, the video was not 

formally admitted into evidence at the hearing and consequently did not become 

part of the appellate record. Counsel stated, however, that the video was played 

during cross-examination and was therefore considered by the trial court. Counsel 

submits in his motion that this court should likewise consider the contents of the 

officer’s body camera footage on appeal. The state did not oppose S.A.’s motion. 

The record indicates that just prior to trial counsel’s recrossexamination of the victim, counsel requested to play the video, stating, “Your Honor, 

I’d like at this point just to play a brief video clip. It’s gonna be just a couple of 

minutes. I want to just play the whole thing. It’s some body cam footage. And I’ll 

ask a question.” At that point, counsel asked the victim to clarify her identification. 

The state did not object to the playing of the body camera video footage during the 

proceedings. 

This court granted S.A.’s motion to supplement the record but 

deferred to the panel the issue whether the video footage would be considered in 

resolving the appeal. Because the video was played in open court during recrossexamination, without objection, we presume the trial court considered the video 

prior to reaching its decision on the motion to suppress and its adjudication. We 

therefore consider the officer’s body camera video footage on appeal. 
A. Evidence at Trial 

The state presented the testimony of the victim, Barbara Blue, and 

Lakewood police officers, Ryan Summerville and Frederick Mance. The state also 

submitted as evidence the audiotaped 911 call placed by the victim. 

 Ms. Blue testified that she had been at a nursing care facility caring 

for her elderly father on the evening of June 5, 2018. She left the nursing facility at 

approximately 9:30 p.m., arriving near her home in Lakewood at approximately 

10:00 p.m. She parked her car on Roycroft Avenue, looked at the back end of the 

car and then the front end, to evaluate her parking. She then noticed a bicycle on 

the sidewalk, thinking perhaps it belonged to a neighbor. Carrying her purse and 

two grocery bags, she proceeded to walk to her home when “a young man passed on 

[her] left very quickly and very close.” She stated that the young man startled her, 

she exclaimed “ooh,” and then she apologized to the individual. Ms. Blue stated that 

the young man did not say anything to her and he proceeded north on Roycroft 

Avenue. She observed him “moving on,” and she turned to walk up the driveway to 

proceed home. 

Ms. Blue testified that she was halfway up the driveway when she 

noticed someone standing to the left side of her. She testified that she turned to face 

him and he said, “I’m going to hurt you, give me your purse.” The individual was 

thin, a “very light build, not really filled out with muscle,” young, and “about 5 foot 

6, 5 foot 7,” and wearing blue jeans and a gray top. He had his hand under his shirt, 

pointing. Assuming he was pointing with his hand, Ms. Blue decided that she did 
not want to give the young man her purse and she told him to go away. Rather than 

leaving, the individual grabbed the victim’s purse, turned, and ran down the 

driveway. Ms. Blue ran after him, yelling for him to stop. When she noticed the 

bicycle was gone, she realized that “it was futile” to try and chase him. She then 

called 911 with her cell phone. In her 911 call, Ms. Blue reported that the suspect 

was a “black guy” on a bike, a teenager, thin, “about as tall as [she is],” which she 

stated was 5 foot 10”. Ms. Blue also reported that the alleged robber was traveling 

north on Larchmont Avenue. 

 When the police officer arrived, Ms. Blue reported what had 

happened. She testified that the officer indicated that he “think[s]” the police “have 

the person who did this,” and the officer asked her to get into the back seat of his 

patrol car and he would take her to identify the suspect. Upon arriving at the 

suspect’s location, the officers brought the suspect out of a patrol car. Ms. Blue 

testified that while she could not “perfectly pick out his face because there was a 

reflection * * * from the streetlight,” she identified him by his “total physique,” his 

clothing — blue jeans and a gray top, his hair style, his “slimness,” “his skin color, 

being somewhat dark,” and “the way he carried himself.” The victim also identified 

the bicycle the suspect was riding. Ms. Blue identified S.A. in the courtroom as the 

young man who robbed her on the evening of June 5, 2018. 

 Officer Summerville testified that he was on patrol on the evening of 

June 5, 2018, when he responded to a call from dispatch at approximately 

10:04 p.m. for a report of a robbery on Roycroft Avenue, adjacent to Larchmont 
Avenue. Officer Summerville testified that he proceeded to the victim’s location and 

took the victim’s statement. He received from the victim a description of the suspect 

as a slender black male in a gray shirt and jeans riding a bike. Approximately four 

to five minutes after receiving the call from dispatch, Officer Summerville received 

a call from another officer that a suspect had been located one block away from the 

victim. At this point, Officer Summerville drove the victim to that location to 

identify the suspect, arriving at approximately 10:20 p.m. The officer testified that 

he used his vehicle’s spotlight to light the area to conduct a cold-stand identification. 

Officer Summerville testified that the victim positively identified S.A. as the 

individual who robbed her that evening. The officer stated that the victim 

specifically identified the suspect’s blue jeans and gray sweatshirt with the same 

height and build and noted that he was on a bike. 

 Officer Mance testified that he was on patrol the evening of June 5, 

2018, when he heard on the police radio at 10:04 p.m. that a woman had been 

robbed on Roycroft Avenue and the suspect was a young black male wearing blue 

jeans and a gray jacket and was riding a bicycle. The officer arrived at the last known 

location of the suspect within minutes of hearing the report. He then drove one 

street east of the reported location and located a suspect matching the description. 

Officer Mance estimated the distance between the scene of the crime and the 

location of the suspect to be approximately one-half mile. The officer testified that 

he had the suspect in custody at approximately 10:08 p.m. He stated that another 

officer brought the victim to the scene where she made a positive identification of 
the suspect as the individual who robbed her. Officer Mance identified S.A. in the 

courtroom as the individual who was identified by the victim at the scene and the 

individual he arrested. 

B. Body Camera Video 

When Officer Summerville arrived at the victim’s location, his body 

camera began recording. The victim explained to the officer what happened, and 

the officer told Ms. Blue that “I believe we have him in custody already.” He then 

asked the victim, “Would you be able to positively identify him if you saw him?” 

Ms. Blue responded, “Yes. I heard his voice, too.” Officer Summerville then advised 

the victim, “All I need is if you can positively identify him.” The officer then placed 

the victim in his patrol car and explained to her, “I’m going to drive you up to where 

they’re at. Okay, like I said, the windows are tinted, and it’s dark, so he won’t be able 

to see you, okay? All’s I need from you is to positively identify him, and I will bring 

you right back, okay?” Officer Summerville then drove Ms. Blue to the suspect’s 

location. 

 Upon arriving at the suspect’s location, the following exchange 

occurred: 

Officer: He’s going to be right over here, okay, over by these officers. 

* * * He’s going to have him step out now, okay? Is that him? 

Victim: That’s the build. I can’t see his face. 

Officer: Hold on one second. [And the officer moved his patrol car 

presumably closer to the suspect.] Is that better? 

Victim: No. I cannot see his face to know. His clothes — [The 

officer’s radio interrupted with another officer explaining 

that the suspect was being uncooperative.] 

Officer: I’m sorry. What did you say, Ma’am? 
Victim: The clothes. It’s his clothes, but I just can’t see the face 

perfectly. 

 At this point, the officer asked the other officers to “have [the suspect] 

step a little closer.” The victim explained that she still could not see the features of 

his face, but “it’s everything else.” The officers attempted once again to move the 

suspect closer. The victim stated “I still don’t know if I could see him” and then 

repeated that it is “exactly the clothes.” The officer asked, “That’s exactly the clothes 

he was wearing?” and the victim replied, “Mhm [and] exactly his build.” The victim 

then recalled that the young man who robbed her had a bicycle, “a trick bike” on the 

ground. Officer Summerville radioed the officers regarding the bike, advising the 

officers that the victim “saw that also,” and those officers rolled a bike into the 

victim’s view. The victim identified the bike as the one the alleged robber was riding. 

Officer Summerville then advised the other officers that the victim had positively 

identified the suspect. 

II. Assignments of Error1

I. The juvenile court erred as a matter of law and violated S.A.’s 

right to a fair trial when it failed to determine S.A.’s suppression 

motion prior to trial. 

II. S.A. was denied his constitutional right to the effective 

assistance of counsel when defense counsel unreasonably 

acquiesced in the juvenile court’s decision to defer the 

suppression hearing and ruling until after the contested 

evidence had already been introduced at trial. 

 

1 In the interest of judicial economy, we will address the first and third assignments 

of error together. 
III. The juvenile court erred as a matter of law and violated S.A.’s 

constitutional rights when it denied his motion to suppress, 

even though the cold-stand procedure was unduly suggestive 

and the resulting identification was vague, uncertain, and 

unreliable. 

IV. The juvenile court’s finding of delinquency was against the 

sufficiency and manifest weight of the evidence. 

III. Motion to Suppress 

 In his first assignment of error, S.A. objects to the manner in which 

the trial court heard the motion to suppress, arguing that the court erred in not 

determining the motion to suppress before trial. S.A. also contends, in his third 

assignment of error, that the trial court erred in denying his motion to suppress. In 

support, S.A. argues that the “cold-stand” procedure of identification utilized by the 

Lakewood police officers was so impermissibly suggestive as to cause an unreliable 

identification, and the identification must therefore be suppressed. 

A. Standard of Review 

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

law and fact; we accept the trial court’s findings of fact if they are supported by 

competent, credible evidence, but we must independently determine whether the 

facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio St.3d 152, 

2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “[W]hen there is substantial evidence to 

support the factual findings of the trial court, the decision on the motion to suppress 

will not be disturbed on appeal absent an error of law.” State v. Bates, 8th Dist. 
Cuyahoga No. 92323, 2009-Ohio-5819, ¶ 36, citing State v. DePew, 38 Ohio St.3d 

275, 528 N.E.2d 542 (1988). 

B. The Suppression Hearing 

 Crim.R. 12(C)(3) provides that a motion to suppress evidence must be 

filed prior to trial. And Crim.R. 12(F) states that a motion to suppress “shall be 

determined before trial.” Noting that the plain language of Crim.R. 12[F] does not 

vest the trial court with any discretion as to when motions to suppress are to be 

determined, this court previously determined that the trial court’s 

“failure to conduct a hearing on the motions to suppress prior to the 

trial, coupled with the subsequent disallowal of any independent 

hearing upon such motions, effectively denied the defendant the right 

to refute any of the testimony presented by the prosecution upon the 

issues surrounding the arrest, the search, and probable cause, and 

thus prevented the defendant from challenging the constitutional 

validity of the evidence used to establish his guilt.” 

State v. Litten, 174 Ohio App.3d 743, 2008-Ohio-313, 884 N.E.2d 654, ¶ 30 (8th 

Dist.), quoting State v. Young, 8 Ohio App.2d 51, 53-54, 220 N.E.2d 704 (2d 

Dist.1996). 

The analogous juvenile rule provides that a motion to suppress “must 

be heard before the adjudicatory hearing.” Juv.R. 22(D)(3). This rule, however, 

does not require a hearing on a separate date. Id. Additionally, providing some 

discretion in the trial courts, Juv.R. 22(E) titled “Motion Time” states that “the court 

in the interest of justice may extend the time for making prehearing motions,” and 

“for good cause shown,” the trial court “may permit a motion to suppress evidence 

under division (D)(3) of this rule to be made at the time the evidence is offered.” 
 In a factually similar case, the Tenth District Court of Appeals 

considered a defendant’s contention that the court violated Juv.R. 22 when it failed 

to conduct a suppression hearing prior to trial and it found that the magistrate had 

discretion to hear the defendant’s motion to suppress “during the relevant portions 

of the proceedings.” In re Hill, 10th Dist. Franklin No. 03AP-82, 2003-Ohio-6185, 

¶ 8. The court of appeals concluded that the same or similar testimony was 

necessary for the motion to suppress as well as adjudication; when the magistrate 

considered the motion to suppress, the defendant “had a full opportunity to have 

any concerns about [the subject of the suppression motion] addressed by the court”; 

and the magistrate ruled on the motion to suppress prior to adjudication. Id. The 

court therefore found that “any error arising from the failure to hold a motion 

hearing prior to the adjudicatory hearing” did not prejudice the defendant. Id.

 Here, the state’s three witnesses for the motion to suppress — the 

victim, Officer Summerville, and Officer Mance — were the same witnesses for the 

trial. And the case was heard to the bench. Therefore, the trial judge was the trier 

of fact for both the suppression issues and the adjudication. In the interest of 

judicial efficiency, the trial court determined, and the parties agreed, that rather 

than having the same witnesses testify twice, it would hear the evidence together 

and ultimately make a separate decision on the suppression and the trial. Indeed, 

the record demonstrates that after the evidence was presented, the trial court 

afforded the parties an opportunity to present their arguments concerning the 
alleged delinquent’s motion to suppress. At this time, S.A. had an opportunity to 

address any concerns about the identification. 

 After the parties presented their case, the trial court carefully analyzed 

the facts of S.A.’s identification as they applied to the current law on cold-stand 

identifications. In so doing, the court made detailed findings regarding the victim’s 

opportunity to view the suspect, the victim’s degree of attention, the accuracy of the 

victim’s description, the victim’s level of certainty, and the length of time between 

the 911 call and the identification: 

I am required to focus on the reliability of the ID and not the process. 

That’s what [the law] says. That’s my job. And in doing that, in 

determining whether or not to grant a request to suppress an ID, I 

have to evaluate five factors * * *. 

Did the witness have an opportunity to view the defendant at the time 

of the offense? Well, according to Miss Blue’s testimony, she viewed 

the individual twice. At least a face-to-face confrontation was when 

the person brushed up against her on * * * her left side. She saw him 

then. And then she indicated that she saw him during the exchange 

when the person told her that I’m going to hurt you, give me your 

purse. She said she was looking directly at the individual at that time. 

And then there was a third time for her when the person was running 

away. She got a chance to see again the person’s body, stature, what 

the person was wearing, and so she had at least three opportunities to 

view the assailant. 

The witness’s degree of attention. Well, she gave a description of his 

height, his weight, his body structure, his race, clothing, and mode of 

travel. 

There wasn’t anything distracting about him in terms of she said no, 

he was not wearing a mask, no, he did not have on some kind of 

handkerchief that was covering up his face or his eyes. None of that 

was distracting for her. 
She was able to get a clear view of what the person looked like. 

The accuracy of the witness’s prior description of the suspect before 

the suspect was restrained. 

Officer Mance stated that he saw a person who fit the description that 

he was given over the radio[:] young, black, male, wearing a gray shirt, 

jeans, and riding a bicycle. 

The level of certainty demonstrated by the witness when she arrived 

on scene indicated that he fit the description of the person who 

forcibly took her purse. She knew by his clothing, by his body 

structure and his race that that was him. 

What she couldn’t see was the particulars of his face due to reflection 

coming from the light, but she stated here in court when she was asked 

to ID him, that’s him. That’s what she said. 

She said, I am sure that that’s him. Officer Mance indicated that he 

was 75 feet away, and that’s why she wasn’t able to get the particulars 

of his face. He was 75 feet away. But the outline of his body, the fact 

this is a black male, the fact that he has on the same clothes as the 

person who accosted her, the same kind of outfit, not blue pants, but 

she said blue jeans. Not a gray hoodie, he had on a gray shirt. 

And then the length of time between the call and the second 

confrontation. The offense ended sometime around 10. I know [the 

prosecutor] said 10:04, but the officer indicated that’s when they 

actually ran towards the area where the assailant went, and then went 

back to her home before she called 9-1-1, and then waited a few 

minutes before they came. 

So that was about — had to be somewhere after 10:00 they actually 

arrived. The police arrived and they talked to her until they left 

around, I think not Officer Mance but the other officer indicated it was 

about 10:20, and then they arrived at approximately 10:22 at the area 

where the officers had detained [S.A.]. And then she made the ID 

between 10:22 and 10:30. 

That was within minutes of the offense. * * * [It]’s not hours, it’s not 

days. [It’s] minutes within the offense. 
[In further evaluating] the circumstances in this case, [Miss Blue was] 

face-to-face with the assailant. [He did not have] on a mask or 

anything covering [his] face. * * * Miss Blue actually stated his 

clothing and body structure after — saw his body structure and his 

clothing after he fled. 

[Miss Blue] chased after the assailant and knew which direction he 

fled in. [And he] gave a description of race, height, and clothing. 

Miss Blue did say approximate height, but more particularly, she told 

the police 5-7. Nevertheless, she never told them that he was tall. She 

also gave a body type and mode of transportation. * * * 

[The assailant[ was] located within a close proximity of the incident. 

Cold stand was conducted within minutes, * * * approximately 20 or 

30 minutes in this case. * * * 

[M]emory of an event will be fresh within minutes of it occurring. * * * 

It wasn’t two [hours], it wasn’t six [hours], it wasn’t the next day. 

Memories do tend to fade when you talk about hours or days, but not 

30 minutes. 

 Ultimately, the court determined that the victim’s identification was 

reliable and it denied the motion to suppress. 

 Thereafter, in moving to the trial issues, counsel for the alleged 

delinquent moved for a Crim.R. 29 dismissal. Counsel argued that the state had not 

presented sufficient evidence on each of the four counts. The state conceded that it 

had not met its burden on Count 4, failure to disclose personal information. The 

court then granted the motion as to Count 4 and denied it as to the remaining counts. 

After having addressed the motion to dismiss, the parties presented their closing 

arguments, and then the court made its findings on the adjudication, which was 

delinquency on Counts 1 through 3. 
 We agree that, generally, the better practice is for trial courts to hear 

motions to suppress before the adjudicatory hearing. We find under these 

circumstances, however, that the alleged delinquent was not denied a meaningful 

opportunity to contest the cold-stand identification, and any error arising from the 

failure to hold a suppression hearing prior to the adjudicatory hearing did not 

prejudice S.A. In re Hill, 10th Dist. Franklin No. 03AP-82, 2003-Ohio-6185, at ¶ 8. 

 Although the witness testimony was presented only once, for both the 

suppression and the adjudication, the record demonstrates that this same testimony 

was necessary for the motion to suppress as well as the adjudication. And absent 

evidence to the contrary, we presume the trial judge, as the trier-of-fact, “performed 

his [or her] duty and did not rely upon anything in reaching his [or her] decision 

that he [or she] should not have relied upon.” Columbus v. Guthmann, 175 Ohio St. 

282, 194 N.E.2d 143 (1963), paragraph three of the syllabus; State v. Neal, 8th Dist. 

Cuyahoga No. 89574, 2008-Ohio-1077, ¶ 11 (stating that “a reviewing court will 

presume that the trial court acted impartially and considered only properly admitted 

evidence”). Moreover, after the evidence had been presented, the court permitted 

the parties to address the suppression issues, and thereafter, the court made explicit 

findings concerning the cold-stand identification procedure. It was only after the 

court had resolved the suppression issues that the court proceeded with the 

adjudication, addressing a Crim.R. 29 motion and hearing the parties’ closing 

arguments. 

 S.A.’s first assignment of error is overruled. 
C. “Cold-Stand” Identification 

 A “cold-stand” or “show-up 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 T.H., 8th Dist. Cuyahoga No. 106433, 

2018-Ohio-2300, ¶ 12. An alleged delinquent has a due process right to suppress 

an out-of-court identification such as a cold-stand where the procedure is “‘so 

impermissibly suggestive as to give rise to a very substantial likelihood of irreparable 

misidentification.’” Id. at ¶ 12, quoting Simmons v. United States, 390 U.S. 377, 

384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). 

 In reviewing the admissibility of a cold-stand identification, courts 

use a two-prong test. State v. Davis, 8th Dist. Cuyahoga No. 101502, 

2015-Ohio-1144, ¶ 19. First, there must be a determination that the identification 

procedure “‘was so impermissibly suggestive as to give rise to a substantial 

likelihood of misidentification.’” Neil v. Biggers, 409 U.S. 188, 197, 93 S.Ct. 375, 34 

L.Ed.2d 401 (1972), quoting Simmons at 384; In re T.W., 2017-Ohio-8875, 100 

N.E.3d 1239, ¶ 6 (8th Dist.); State v. Monford, 190 Ohio App.3d 35, 2010-Ohio4732, 940 N.E.2d 634, ¶ 38 (10th Dist.). The burden of demonstrating that the 

procedures used were unnecessarily suggestive is upon the defendant. State v. 

Quarterman, 8th Dist. Cuyahoga No. 99317, 2013-Ohio-4037, ¶ 26. 

 If the defendant demonstrates that the identification procedure was 

impermissibly suggestive, the court must next determine whether the witness’s 

identification was unreliable under the totality of the circumstances. Davis at ¶ 21; 
In re T.W. at ¶ 7. The factors that must be considered when evaluating reliability 

are (1) the witness’s opportunity to view the offender; (2) the witness’s degree of 

attention; (3) the accuracy of the witness’s prior description of the suspect; (4) the 

witness’s level of certainty when identifying the suspect; and (5) the length of time 

between the crime and the confrontation. Biggers at 199-200. 

 Although generally a cold-stand or show-up identification is 

discouraged, “‘an exception is recognized when the suspect is apprehended at or 

near the scene of the crime and is presented to the victim or witness shortly 

thereafter.’” State v. Smith, 8th Dist. Cuyahoga No. 94545, 2011-Ohio-924, ¶ 18, 

quoting State v. Davis, 8th Dist. Cuyahoga No. 83033, 2004-Ohio-1908. The Ohio 

Supreme Court 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, 132 U.S.App.D.C. 36, 405 F.2d 1104, 1106 (1968); State v. Thomas, 

8th Dist. Cuyahoga No. 88548, 2007-Ohio-3522, ¶ 17. 
 Moreover, this type of identification violates due process “only if the 

circumstances surrounding the identification are unnecessarily suggestive and 

unreliable after evaluating the totality of the circumstances.” Smith at ¶ 17, citing 

Manson v. Brathwaite, 432 U.S. 98, 112-113, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). 

The focus, therefore, is upon the reliability of the identification and not the 

identification procedures themselves. Smith at ¶ 19. 

 S.A. contends that the trial court failed to consider whether the coldstand identification procedure was unduly suggestive, and he argues the procedure 

was in fact impermissibly suggestive. The record demonstrates that the trial court 

did indeed “focus[] on the reliability of the ID and not the process.” (Trial transcript, 

p. 70-71.) Rather than analyzing the method by which the police officers obtained 

Ms. Blue’s identification of S.A. as her assailant, the court proceeded to a 

determination regarding the reliability of Ms. Blue’s identification, under the second 

prong of the test for the admissibility of a cold-stand identification. In so doing, the 

court considered the five reliability factors outlined in Biggers before denying S.A.’s 

motion to suppress. Likewise, in its brief on appeal, the state addressed only the 

Biggers factors in urging this court to affirm the trial court’s denial of the motion to 

suppress. 

 “The 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., 2017-Ohio-8875, 100 N.E.3d 1239, at ¶ 16, citing State v. 

Williams, 10th Dist. Franklin Nos. 02AP-730 and 02AP-731, 2003-Ohio-5204, ¶ 44 
(the officers’ statements were immaterial because the witness’s identification was 

reliable). In this case, regardless of whether the cold-stand was suggestive, we find 

the victim’s identification was reliable and overcomes any suggestive nature of the 

identification process. 

 Here, as the trial court stated, the victim had several opportunities to 

view the suspect. The first time Ms. Blue saw the suspect was when he approached 

her left side, and he was so close to the victim that he startled her. She then watched 

him walk away before she proceeded home. Ms. Blue next observed the suspect 

when he returned to her, with his hand under his shirt, stating that he was going to 

hurt her, and demanding her purse. Finally, Ms. Blue continued to observe the 

suspect as he was running away because she was chasing after him. A witness does 

not need “an extended period of time to view the suspect * * * for the identification 

to be deemed reliable. Mere seconds can be enough time.” In re T.W. at ¶ 11, citing 

State v. Walker, 10th Dist. Franklin No. 02AP-679, 2003-Ohio-986, ¶ 17 (finding 

two or three seconds in which the victim observed the suspect, who was not wearing 

a mask and part of his hair was visible, demonstrated the reliability of the 

identification); United States v. Wong, 40 F.3d 1347, 1360 (2d Cir.1994) (finding 

that looking at the suspect’s face for two to three seconds was sufficient for 

identification to be deemed reliable). Ms. Blue therefore had ample opportunity to 

observe the individual who robbed her. 

 We also find, as the trial court did, that Ms. Blue was attentive during 

the robbery. Within minutes of the robbery, she provided a description of her 
assailant’s age, race, build, and clothing. In her 911 call, she stated that her assailant 

was a thin, black, male teenager. She reported that he was wearing blue jeans and a 

gray top. Although there was some discrepancy regarding the victim’s testimony 

concerning the individual’s height, ranging from 5’6” or 5’7” to 5’10”, the victim’s 

description was always an approximation. On the 911 call, she described her 

assailant as “about as tall as I am * * * 5/10”, and at trial, she testified that he was 

“about 5 foot 6 or 5 foot 7.” (Emphasis added.) 

 Additionally, Ms. Blue reported to police dispatch that her assailant 

was on a bicycle and he was traveling north on Larchmont Avenue. Ms. Blue’s 

accurate physical description of the assailant, along with the reported mode and 

direction of travel, permitted the responding officers to identify the suspect fitting 

Ms. Blue’s description only one street east of the assailant’s reported location, within 

minutes of the reported crime. 

 Courts have held that a general description of an assailant’s 

approximate age, race, gender, and attire can be reliable, especially where the 

assailant is discovered shortly after the crime was reported or in the vicinity of the 

reported location. State v. McRae, 8th Dist. Cuyahoga No. 96253, 2011-Ohio-6157, 

¶ 14 (finding a witness’s identification reliable where the suspect was apprehended 

near the area the witness claimed the assailant had fled, wearing clothing matching 

the witness’s description); State v. Thompson, 8th Dist. Cuyahoga No. 79938, 

2002-Ohio-2390, ¶ 21 (finding the witness’s identification reliable where the 

witness provided a description of the defendant’s race, height, facial hair, and 
clothing, prior to the cold-stand, and the identification was conducted within 

minutes of the crime); State v. Smith, 11th Dist. Trumbull No. 2008-T-0023, 2008-

Ohio-6998, ¶ 29 (finding that where a suspect is apprehended only minutes after 

the crime occurred wearing distinguishing clothing that the witness specifically 

remembers from the crime increases the reliability of the identification); Walker, 

10th Dist. Franklin No. 02AP-679, 2003-Ohio-986, at ¶ 17 (concluding the witness’s 

pre-identification description of the suspect’s race, size, hair, hat, and clothing 

demonstrated reliability). 

The record also demonstrates that Ms. Blue was certain of her 

identification of S.A. as her assailant. When Officer Summerville asked Ms. Blue, 

upon arriving at her location, if she would be able to identify her assailant, she 

replied, without hesitation, “Yes.” Within minutes of placing the 911 call and 

speaking with Officer Summerville, Ms. Blue positively identified S.A. as the 

individual who robbed her. Although she had difficulty seeing the suspect’s facial 

features, the record shows that this difficulty was due to a reflection from the 

officer’s spotlight. Nothing in the officer’s body camera footage demonstrates 

uncertainty other than the victim’s candid admission that she could not see the 

suspect’s face in the light’s reflection. During the cold-stand, however, Ms. Blue 

stated definitively that it was “exactly the clothes” her assailant was wearing and 

“exactly his build.” She also reminded the officer that the individual had a bike, and 

when the officers rolled the bike into view, Ms. Blue identified the bike. Moreover, 
Ms. Blue reiterated her identification of S.A. in the courtroom without hesitation or 

confusion. Thompson at ¶ 21. 

 Regarding the final reliability factor, the record demonstrates that Ms. 

Blue arrived in Lakewood and parked her car at approximately 10:00 p.m. Officer 

Summerville responded to a call from dispatch concerning the robbery at 

approximately 10:04 p.m. While taking the victim’s statement, Officer Summerville 

received a call from other investigating officers in the area within another four or 

five minutes, indicating that a suspect had been located. Officer Summerville then 

drove Ms. Blue to the suspect’s location at approximately 10:20 p.m. Ms. Blue 

positively identified S.A. shortly thereafter. Therefore, the length of time that 

elapsed between the crime and the confrontation was no more than 30 minutes, 

while the robbery was still fresh on the victim’s mind. Thompson at ¶ 21 (finding an 

identification made within minutes of a crime “fresh” on the witness’s mind and 

therefore reliable). 

 Under the totality of the circumstances noted above, we find that Ms. 

Blue’s identification of S.A. as the individual who robbed her was reliable, and the 

alleged suggestive nature of the identification was overcome by the reliability of the 

witness. In re T.W., 2017-Ohio-8875, 100 N.E.3d 1239, at ¶ 16. The trial court’s 

denial of S.A.’s motion to suppress was therefore proper. 

 S.A.’s third assignment of error is overruled. 
IV. Ineffective Assistance of Counsel 

 In his second assignment of error, S.A. contends that trial counsel’s 

“acquiescence” with the court’s decision to defer the suppression hearing and ruling 

until after the evidence had been presented at trial constituted ineffective assistance 

of counsel. 

 To establish a claim of ineffective assistance of counsel, S.A. must 

demonstrate (1) his counsel was deficient in some aspect of his representation, and 

(2) there is a reasonable probability that, were it not for counsel’s errors, the result 

of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 

S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, “the failure to make a showing of either 

deficient performance or prejudice defeats a claim of ineffective assistance of 

counsel.” State v. Davenport, 8th Dist. Cuyahoga No. 106143, 2018-Ohio-2933, 

¶ 25, citing Strickland at 697. 

 In Ohio, every properly licensed attorney is presumed to be 

competent and, therefore, a defendant claiming ineffective assistance of counsel 

bears the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 

(1985). Counsel’s tactical decisions or trial strategy cannot form the basis for a claim 

of ineffective counsel. State v. Foster, 8th Dist. Cuyahoga No. 93391, 

2010-Ohio-3186, ¶ 23, citing State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 

(1980). 

 Here, S.A.’s trial counsel agreed to the trial court’s decision to defer 

the suppression hearing and ruling until after the evidence had been presented at 
trial. We presume that counsel’s agreement with the court’s proposal was a tactical 

decision that would perhaps garner favor with the judge hearing the evidence; save 

the court’s, the parties’, and the witnesses’ time; and avoid duplication of the 

evidence. Regardless of counsel’s reasons for agreeing to the court holding one 

hearing, however, we previously found that the manner in which the trial court 

proceeded did not prejudice the alleged delinquent. Moreover, we found that the 

trial court properly denied S.A.’s motion to suppress the victim’s cold-stand 

identification. 

 In light of the above, we cannot find that had defense counsel objected 

to the court hearing the suppression and the adjudication evidence together, the 

result of the trial would have been different. 

 S.A.’s second assignment of error is overruled. 

V. Sufficiency and Manifest Weight 

In his final assignment of error, S.A. contends that the court’s 

adjudication of delinquency was not supported by sufficient evidence and was 

against the manifest weight of the evidence. In support, S.A. essentially argues that 

the victim’s pretrial identification was improper, the victim’s in-court identification 

was not credible, and the record “is entirely devoid of any other evidence implicating 

[him].” 

 When assessing a challenge of sufficiency of the evidence, a reviewing 

court examines the evidence admitted at trial and determines 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 elements of an offense may be proven by direct evidence, 

circumstantial evidence, or both. See State v. Durr, 58 Ohio St.3d 86, 568 N.E.2d 

674 (1991). Direct evidence exists when “a witness testifies about a matter within 

the witness’s personal knowledge such that the trier of fact is not required to draw 

an inference from the evidence to the proposition that it is offered to establish.” 

State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. 

Circumstantial evidence, on the other hand, is evidence that requires “the drawing 

of inferences that are reasonably permitted by the evidence.” Id. See also State v. 

Hartman, 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37 (“[c]ircumstantial 

evidence is the proof of facts by direct evidence from which the trier of fact may infer 

or derive by reasoning other facts in accordance with the common experience of 

mankind”). Circumstantial and direct evidence are of equal evidentiary value. State 

v. Santiago, 8th Dist. Cuyahoga No. 95333, 2011-Ohio-1691, ¶ 12. 
 A manifest weight challenge questions whether the state has met its 

burden of persuasion. Thompkins at 390. This challenge raises a factual issue: 

“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.” 

Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st 

Dist.1983). The use of the word “manifest” in the standard of review “means that 

we can only reverse the trier of fact if its decision is very plainly or obviously contrary 

to the evidence.” State v. Hernandez, 8th Dist. Cuyahoga No. 106577, 

2018-Ohio-5031, ¶ 20. And a finding that a conviction was supported by the 

manifest weight of the evidence necessarily includes a finding of sufficiency. State 

v. Howard, 8th Dist. Cuyahoga No. 97695, 2012-Ohio-3459, ¶ 14, citing Thompkins

at 388. 

 S.A. was adjudicated delinquent of robbery in violation of 

R.C. 2911.02(A)(2), which provides that “[n]o person, in attempting or committing 

a theft offense or in fleeing immediately after the attempt or offense, shall * * * 

[i]nflict, attempt to inflict, or threaten to inflict physical harm on another. S.A. was 

also adjudicated delinquent of robbery in violation of R.C. 2911.02(A)(3), which 

prohibits an offender from using force or threatening “the immediate use of force” 

against another while attempting or committing a theft offense. Finally, S.A. was 
adjudicated delinquent of possessing criminal tools in violation of R.C. 2923.24(A), 

namely the bicycle. 

 Here, Ms. Blue testified that a young black male approached her on 

the evening of June 5, 2018, threatened to hurt her, and demanded her purse. 

Ms. Blue testified that she did not want to give up her purse, but the young man 

grabbed the purse from her hands and fled on his bicycle. She attempted to chase 

him but could not keep up, and she called 911. Officer Mance located a suspect 

matching the victim’s description only one street east of the suspect’s reported 

location within minutes of hearing the report. Less than 30 minutes later, Ms. Blue 

identified S.A. in a cold-stand as the young man who robbed her that evening. 

Although she admitted that she could not see the suspect’s facial features due to the 

light’s reflection, she was able to positively identify S.A. by his clothes and build, and 

she identified the bicycle S.A. was riding when he fled. We found Ms. Blue’s 

identification reliable, based on the Biggers factors. Additionally, Ms. Blue 

identified S.A. in the courtroom as her assailant. 

 In light of the foregoing, we find the evidence supports S.A.’s 

adjudication of delinquency in Counts 1 through 3. S.A.’s final assignment of error 

is overruled. 

 Judgment affirmed. 

 It is ordered that appellee recover of 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 sentence. 

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 T. GALLAGHER, P.J., and 

RAYMOND C. HEADEN, J., CONCUR