COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69022 IN THE MATTER OF MICHAEL : JENKINS : : JOURNAL ENTRY : AND : OPINION : DATE OF ANNOUNCEMENT OF DECISION: MAY 2, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Juvenile Division Case No. 9502195 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. CUYAHOGA COUNTY PROSECUTOR CUYAHOGA COUNTY PUBLIC DEFENDER BY: TIMOTHY R. BROWN, ESQ. BY: DANIEL SCULLY, ESQ. ASSISTANT COUNTY PROSECUTOR ASSISTANT PUBLIC DEFENDER 1200 Ontario Street 1200 West Third Street, N.W. Cleveland, Ohio 44113 100 Lakeside Place Cleveland, Ohio 44113-1569 - 2 - DYKE, J.: Defendant-appellant Michael Jenkins, appeals a judgment of delinquency rendered by the Court of Common Pleas, Juvenile Division, subsequent to its finding that he committed one count of robbery and two counts of assault in violation of R.C. 2911.02(A) and R.C. 2903.13(A). In two assignments of error appellant claims that his in-court identification was based upon impermissibly suggestive pre-trial confrontations and that his adjudication was predicated upon insufficient evidence. Upon review, we find appellant's assignments of error to be devoid of merit. Hence, we affirm the judgment of the juvenile court. The following facts were adduced during appellant's trial. Shawn Bowen and his uncle Michael Bowen, testified that on February 12, 1995 at approximately 2:30 a.m., they were assaulted when eight black men emerged from two cars which stopped after they stopped for a red light at the intersection of Lakeshore Boulevard at 149th Street. Shawn testified that when he stepped out of his uncle's car, he was hit in the head with a gun and was kicked repeatedly. He stated that his house keys, certain identification and $90.00 in cash were stolen from him before the men stole his uncle's car. Shawn stated that they called the police from a nearby pay phone; that Cleveland Police Officer James Fabian arrived shortly thereafter and that Officer Fabian transported them to the hospital where they were treated for cuts and bruises. The Bowens made in-court identifications of the appellant. However, - 3 - they admitted on cross-examination that they did not provide Officer Fabian with a detailed description of the appellant prior to identifying him at the hospital. Officer Fabian testified that he had just begun to receive a radio report regarding a disturbance at Lakeshore Boulevard and 149th Street when he saw two white males to wit, Shawn and Michael Bowen, flag down his patrol car. He stated that the Bowens were cut and bruised and that they told him that eight black men in two cars assaulted them and stole their vehicle. Fabian testified that as he drove the Bowens to the hospital, they told him that their assailants were approximately six feet tall and that one assailant was heavy set and wore an "afro" hairstyle. Fabian further testi- fied that he was informed that a suspect had been arrested within forty minutes of a radio broadcast which described the Bowen's stolen vehicle. Fabian testified that he met the arresting officers at 3:40 a.m.; that he transported the suspect to the hospital immediately thereafter; that the Bowens independently identified the suspect as one of their assailants and that they did so with certainty. The following witnesses testified on behalf of the defense. Appellant's mother testified that the appellant called her from his aunt's home at 1:30 a.m. requesting a ride and that she told him to take a cab home. Appellant's girl friend testified that the appellant was the father of her infant son and that the appellant was aware that the child was scheduled to be baptized on February - 4 - 13, 1995 to wit, the day after his arrest. Appellant's aunt testified that the appellant was at her home at 2:30 a.m. because she saw him there after being awakened by her infant grandson's crying. Appellant's cousin testified that the appellant was still at the house at 3:00 a.m. because she recalled taking her crying son to the hospital at that time. On cross-examination, appel- lant's cousin admitted that she had no hospital records to prove that her infant son was treated and/or admitted on the morning of February 12, 1995. The appellant testified that he fell asleep at his aunt's home and that he was unable to secure a ride from his mother or a cab. He stated that when he walked to a bus stop at approximately 3:00 a.m., he encountered four men. He stated that the men refused to give him a ride home but offered to "rent" their car to him for $15.00. Appellant indicated that he was arrested shortly thereafter when he attempted to purchase gas. On cross-examination, appellant insisted that it was extremely important that he obtain a ride home so that he could attend his son's baptism. He admitted, however, that he made no pre- arrangements to insure such transportation; that he fell asleep at his aunt's house despite the importance of the event and that he waited several minutes at the Windmere bus stop despite his admission that service stopped at 3:00 a.m. When asked why he made no arrangements to return the "rented" car to the men, appellant contradicted himself on the stand and stated that he did not "rent" - 5 - but "bought" the car from the men. The juvenile court dismissed two previously charged counts of kidnapping (R.C. 2905.01(A)(2)) and adjudicated the appellant delinquent. This appeal followed. I THE APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION XVI OF THE CONSTITU- TION OF THE STATE OF OHIO WERE VIOLATED WHEN THE TRIAL COURT ADMITTED UNRELIABLE IN-COURT IDENTIFICATIONS BASED UPON UNNECESSARY AND IMPERMISSIBLY SUGGESTIVE PRETRIAL SHOWUPS. In his first assignment of error, appellant argues that he was the only suspect presented to the Bowens at the hospital. He claims that this one-on-one confrontation violated his constitu- tional right to due process because the victims failed to provide the police with a specific description prior to the confrontation. Upon review, we find appellant's argument to be unpersuasive. A cold stand, or one-on-one show up identification may be suggestive under certain circumstances; however it is impermissible only where there is a substantial likelihood of misidentification. State v. Freeman (June 22, 1995), Cuyahoga App. No. 67383 citing State v. Madison (1980), 64 Ohio St.2d 322 and Neil v. Biggers (1972), 409 U.S. 188. The record demonstrates that prior to confrontation, the Bowens provided Officer Fabian with a general description of their assailants as being black and six feet tall and a specific description of one assailant as being heavy set and wearing an "afro" hair style. The Bowens also provided a detailed description of the stolen car. Less than 40 minutes later a - 6 - suspect was apprehended driving the car and minutes later the suspect was transported to the hospital where the Bowens made immediate, independent and unequivocal identifications. Shawn Bowen testified that he recognized the appellant not only because of his face, hair and eyes but also because of his shoes as the appellant kicked him repeatedly during the assault. Michael Bowen testified that he recognized the appellant because of his "afro" hairstyle and because he looked directly into appellant's face 1 during the assault and asked him whether he had "done enough." (Tr. 36) Based upon these facts and circumstances, we conclude that there was no substantial likelihood of misidentification because prior, independent bases for identification existed and because identification was timely. In addition, the victims' testimony met all the criteria for reliability set forth in Neil v. Biggers (1972), 409 U.S. 188. In Neil, the Supreme court mandated that the following factors be considered when making a determination as to the reliability of an identification: 1. The opportunity of the witness to view the criminal at the time of the crime; 2. The witness' degree of attention; 1 The victims' pre-confrontation description is also corro- borated by court documents filed three days after appellant's arrest indicating that the appellant was an african american; that he was 5' 11" tall; that he weighed 190 pounds and that he wore a "black, four inch afro." See, "Physical Description," Cuyahoga County Juvenile Court Fact Sheet dated February 15, 1995. - 7 - 3. The accuracy of the witness' prior description of the criminal; 4. The level of certainty demonstrated by the witness; 5. The length of time between the crime and the confrontation. Id. at 114. The record demonstrates that the Bowens had ample time to view the appellant; that they viewed him with a sufficient degree of attention; that their pre-confrontation description was accurate; that they were certain of appellant's identity and that their identifications were timely. Appellant's first assignment of error is overruled. II THE TRIAL COURT VIOLATED APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE CONSTITUTIONS OF THE UNITED STATES AND OF THE STATE OF OHIO BY ADJUDICATING HIM DELINQUENT BY EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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. State v. Jenks (1991), 61 Ohio St.3d 259. Circumstantial evidence and direct evidence inherently possess the same probative value. Id. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the - 8 - elements of the offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, paragraph one of the syllabus. The record demonstrates that the state provided a substantial amount of direct and circumstantial evidence that the appellant caused physical harm to the Bowens and stole their car. Such evidence would enable the trier of fact to reasonably conclude that the offenses of assault and robbery had been proven beyond a reasonable doubt. Moreover, the credibility of the witness is a matter for the trier of fact. State v. Dehass (1967), 10 Ohio St.2d 231. Hence, the juvenile court was free to believe the unbiased, corroborated testimony of the state's witnesses and disbelieve the biased alibi testimony of appellant's witnesses and appellant's own incredible claim that he happened upon four drug dealers in the middle of the night who agreed to "sell" him their only means of transportation, to wit, the Bowens' recently stolen automobile so he could drive himself home to attend a baptism scheduled for the following day. Appellant's second assignment of error is overruled. The judgment of the trial court is affirmed. - 9 - It is ordered that appellee recover of appellant its 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 Court of Common Pleas, Juvenile Division, 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. KARPINSKI, J., AND MCMONAGLE, J., CONCUR ANN DYKE PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .