In re L.W.

[Cite as In re L.W., 2013-Ohio-5735.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 99527

IN RE: L.W., JR.
A Minor Child

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL 12112291

BEFORE: Blackmon, J., Boyle, P.J., and Jones, J.

RELEASED AND JOURNALIZED: December 26, 2013
 -i-

ATTORNEYS FOR APPELLANT

Timothy Young
State Public Defender

By: Brooke M. Burns
Assistant State Public Defender
250 E. Broad Street, Suite 1400
Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Amey L. Tucker
Assistant County Prosecutor
9300 Quincy Avenue, 4th Floor
Cleveland, Ohio 44106
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant L.W. appeals the judgment of the Cuyahoga County Common

Pleas Court, Juvenile Division, that found him delinquent by reason of committing

felonious assault, and placed him in the custody of the Ohio Department of Youth

Services (“ODYS”).1 L.W. assigns the following errors for our review:

I. The juvenile court committed plain error when it permitted the playing of
[L.] W.’s tape-recorded statement to law enforcement at trial, as [L.] did not
knowingly, intelligently, or voluntarily, waive his right under Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Fifth and
Fourteenth Amendments to the United States Constitution; Section 10,
Article I of the Ohio Constitution.

II. [L.] W. was denied the effective assistance of counsel because counsel
failed to file a motion to suppress [L.’s] uncounseled statement to law
enforcement, and because counsel failed to request that [L.] and his
co-defendant be tried separately. (Vol II T.pp. 3-186). Fifth, Sixth and
Fourteenth Amendments to the United States Constitution; Section 10,
Article I of the Ohio Constitution.

III. The juvenile court erred when it adjudicated [L.] W. delinquent of
felonious assault, when no evidence was presented that he or his
co-defendant knowingly caused or attempted to cause physical harm to
another. (Vol II, T.pp. 15-186; A-1). Fifth and Fourteenth Amendments
to the United States Constitution; Article I, Section 16 of the Ohio
Constitution, and Juvenile Rule 29(e)(4).

IV. The juvenile court violated [L.] W.’s right to due process under the
Fifth and Fourteenth Amendments to the United States Constitution and
Article 1, Section 16 of the Ohio Constitution when it adjudicated him
delinquent of felonious assault, and the accompanying specifications when
the manifest weight of the evidence presented at trial did not demonstrate
that [L.] or his co-defendant committed a felonious assault.

1
This appeal is a companion case arising out of the same events as contained
in In Re C.M., 8th Dist. Cuyahoga No. 99599, 2013-Ohio-5426.
 V. The juvenile court committed plain error by finding [L.] W. delinquent
of and committing him to DYS on the specifications outlined in R.C.
2941.145 and 2941.146, for the same conduct. R.C. 2941.25(A). (A-1).
Fifth and Fourteenth Amendments to the United States Constitution.
Article I, Section 10 of the Ohio Constitution.

{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

adjudication. The apposite facts follow.

{¶3} On July 26, 2012, a three-count complaint, naming three separate victims,

was filed against L.W. and his co-delinquent C.M., alleging that they were delinquent for

felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second degree if

committed by an adult. Each count included one-and three-year firearm specifications,

as well as a five-year drive-by-shooting specification. The matter proceeded to an

adjudicatory hearing before a trial judge.

{¶4} The allegations giving rise to the complaint were that in the early morning

hours of July 23, 2012, three friends, E.B., E.M., and I.G., were walking along East 79th

Street and St. Clair Avenue, when a car driven by L.W., and occupied by C.M., and T.F.,

pulled alongside them and stopped. By all accounts, L.W. asked the three friends where

they were from, gang language used to ascertain an individual’s neighborhood.

{¶5} E.B. and E.M. responded “nowhere,” indicating a lack of gang affiliation, but

I.G. indicated that he was from the “Cut Throat” gang. L.W. responded by stating that

he was “L.J. from Hough Harlem” and indicated that if the three friends were members of

the “76” gang, he would have to “get busting at y’all,” gang language for “start shooting.”

L.W. told the three friends that everything was okay and then drove off. The three
friends proceeded to walk to E.B.’s girlfriend’s house where they visited for about an

hour.

{¶6} At approximately 2:30 a.m., the three friends were walking from E.B.’s

girlfriend’s house when they encountered L.W. driving in the opposite direction. L.W.

honked the car’s horn twice and E.B. put two fingers in the air to acknowledge the

greeting. Moments later, gunshots rang out. The three friends began to run, but E.B.

was hit in the head, fell to the ground, and sustained severe brain injury.

{¶7} A day and a half after the shooting, L.W., accompanied by his mother,

voluntarily appeared at the police station and requested an audience with Detective

Michael Legg. After being advised of his Miranda rights, L.W. proceeded to participate

in a tape-recorded interview. In the interview, L.W. admitted that he was a member of

the “Hough Harlem” gang and that he had twice encountered E.B. and his two friends in

the early morning hours of July 23, 2012, in a rival gang’s area.

{¶8} L.W. indicated that shortly after the second encounter, he heard shots ring

out. L.W. denied that any shots were fired from his car; instead he indicated that he and

the other occupants thought members of the “76” gang were shooting at the car. L.W.

came to the police station because he heard rumors that he was involved in a shooting.

{¶9} C.M., accompanied by his mother, also appeared at the police station and

requested an audience with Detective Legg. C.M., like L.W., also participated in a

tape-recorded interview after being read his Miranda rights. C.M. recounted
substantially the same version of the events as L.W., and also denied that any shots were

fired from the car.

{¶10} The co-delinquents were tried jointly at the adjudication hearing. The state

offered the testimony of all three victims and that of Detective Legg, as well as the

tape-recorded interviews of the co-delinquents.

{¶11} E.B. testified that a part of his skull had to be removed temporarily because

of the gunshot to the head. E.B. stated that he was in a coma until September 2012, that

he has had to relearn basic functions, and has been grappling with memory loss. E.B.’s

recollection of the events paralleled that of the two co-delinquents, except that he testified

that the shots rang out within five seconds after L.W. honked the car’s horn at the time of

the second encounter. E.B. said that although he did not see who fired the shots, he

concluded it came from the car driven by L.W., because there was no one else around at

that time of the morning.

{¶12} The second victim, E.M., likewise testified that he did not see where the

gunshots came from, but also concluded that it must have come from the car, because

there was no one else around. E.M. also concluded, based on where he and the other

victims were located, that the gunshots had to have come from the passenger’s side of the

vehicle.

{¶13} The third victim, I.G., testified that when he heard the gunshots, he saw

“sparkles” or flashes of light coming diagonally across the street behind some bushes.

I.G. stated he smoked marijuana daily and on that particular night, he had smoked what is
referred to as “loud.” I.G. testified that “loud” is much more potent than regular

marijuana, thus giving the smoker a greater “high.”

{¶14} Detective Legg, a 17-year veteran with the Cleveland Police Department

testified that he was the investigating officer on the case. Detective Legg stated that both

co-delinquents voluntarily made statements after being advised of their Miranda rights

and both denied that shots were fired from the car. During Detective Legg’s testimony,

the tape-recorded statements of the co-delinquents were played in open court.

{¶15} Detective Legg testified that L.W. admitted that he had spoken to I.G.

before coming to the police station. Detective Legg stated that after they finally located

I.G., he refused to identify anyone and refused to give a statement. Detective Legg

subsequently learned that both E.M.’s and I.G.’s families relocated them from the

Cleveland area because of threats.

{¶16} The trial judge ultimately found that the state proved the allegations of the

complaint beyond a reasonable doubt, thereby finding L.W. delinquent of the charge of

felonious assault along with the aforementioned one-and three-year firearm specification,

as well as the drive-by shooting firearm specification. The trial judge subsequently

committed L.W. to the custody of the ODYS for an aggregate term consisting of a

minimum period of three years and a maximum period not to exceed his attainment of 21

years of age.

Waiver of Miranda Rights
 {¶17} In the first assigned error, L.W. argues the juvenile court erred when it

admitted his tape-recorded statement to Detective Legg, because he did not knowingly

waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966).

{¶18} Juveniles are entitled both to protection against compulsory

self-incrimination under the Fifth Amendment and to Miranda warnings where

applicable. In Re M.W., 8th Dist. Cuyahoga No. 94737, 2010-Ohio-6362. Any

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

made during a custodial interrogation unless Miranda warnings were properly given to

the suspect. State v. Andrews, 3d Dist. Allen No. 1-05-70, 2006-Ohio-3764, citing

Miranda at 444.

{¶19} Interrogation is defined as any “statement, question or remark by a police

officer * * * reasonably likely to elicit an incriminating response * * *.” In re Forbess, 3d

Dist. Auglaize No. 2-09-20, 2010-Ohio-2826, citing State v. Knuckles, 65 Ohio St.3d 494,

605 N.E.2d 54, paragraph two of the syllabus. Furthermore, “[a] person is considered in

custody for purposes of Miranda when he is placed under formal arrest or his freedom of

action is restrained to a degree associated with a formal arrest.” Id., citing State v.

Simpson, 10th Dist. Franklin No. 01AP-757, 2002-Ohio-3717.

{¶20} The proper inquiry for determining if an individual has been placed in

custody is whether, under the totality of the circumstances, a reasonable person would

believe he is not free to leave. State v. Gumm, 73 Ohio St.3d 413, 429, 653 N.E.2d 253
(1995), citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64

L.Ed.2d 497 (1980).

{¶21} A suspect may either waive or invoke his Miranda rights, including his Fifth

Amendment right to counsel, and, if a request for counsel is made, the interrogation must

not recommence until counsel is present. State v. Kleingers, 1st Dist. Hamilton Nos.

C-980764 and 98TRC-17902A, 1999 Ohio App. LEXIS 2889 (June 25, 1999), citing

Miranda at 474. In order for a defendant’s waiver of Miranda rights to be valid, the

waiver must be knowingly, intelligently, and voluntarily made. Id. at 444.

{¶22} The state bears the burden of demonstrating, by a preponderance of the

evidence, that a defendant knowingly, intelligently, and voluntarily waived his Miranda

rights based on the totality of the circumstances. State v. Moore, 8th Dist. Cuyahoga No.

95106, 2012-Ohio-1958, 970 N.E.2d 1098, citing State v. Gumm, 73 Ohio St.3d 413,

429, 653 N.E.2d 253 (1995). “The totality of the circumstances includes ‘the age,

mentality and prior criminal experience of the accused; the length, intensity, and

frequency of interrogation; the existence of threat or inducement.’”State v. Campbell, 90

Ohio St.3d 320, 332, 738 N.E.2d 1178 (2000), quoting State v. Edwards, 49 Ohio St.2d

31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus. Absent a showing that the

waiver was voluntary, the waiver is invalid and the defendant’s statements should be

suppressed. Id.

{¶23} Based on our review of the record, we find that L.W.’s waiver of his right

to counsel was voluntarily given. Initially, we note, L.W., accompanied by his mother,
voluntarily appeared at the 5th District police station and requested an audience with

Detective Legg. L.W. was not arrested until after he had made incriminating statements

during the interview. As such, L.W. was not in custody for purposes of Miranda at the

time of the interview.

{¶24} As previously noted, subsequent to their arrival, a tape-recorded interview

took place. At the beginning of the interview, Detective Legg asked both L.W. and his

mother some introductory questions, such as their names and dates of birth, before

reading L.W. his Miranda rights. After reading L.W. his Miranda rights, Detective

Legg asked if they understood, and both L.W. and his mother indicated they understood

the rights. Detective Legg then proceeded to ask L.W. specific questions regarding the

shooting.

{¶25} Aside from L.W.’s own admissions, the factors we must consider support

our conclusion that the waiver was voluntarily made. Here, the record reveals that L.W.

has had prior experiences with the police, that he was placed on probation in 2011 for

carrying a concealed weapon. L.W., who was 16 at the time of the interrogation,

exhibited the mental, as well as the emotional capacity to voluntarily waive his rights, and

there was no evidence that L.W. had a diminished understanding.

{¶26} Nonetheless, within this assigned error, L.W. also argues he did not

knowingly and intelligently waive his Miranda rights. In support of this argument, L.W.

claims Detective Legg never inquired into his educational level or ascertained whether he

had difficulty understanding written or verbal communication.
 {¶27} However, an individual’s low intellect does not necessarily render him or

her incapable of waiving Miranda rights. State v. Goodwin, 8th Dist. Cuyahoga No.

99254, 2013-Ohio-4591. See also State v. Jenkins, 15 Ohio St.3d 164, 233, 473 N.E.2d

264 (1984); State v. Hall, 48 Ohio St.2d 325, 333, 358 N.E.2d 590 (1976). Rather, a

person’s low intellect is but one of many factors under the totality of circumstances that a

court must consider in assessing the voluntariness of a Miranda waiver or confession.

State v. Frazier, 115 Ohio St.3d 139, 154, 2007-Ohio-5048, 873 N.E.2d 1263.

{¶28} Here, the record reveals that prior to the shooting that led to the instant

charges, L.W. had been suspended from school and had eventually stopped going.

Pertinently, the record indicates that while L.W. was in school, he was not in any special

education classes. Therefore, in our view, L.W. has failed to demonstrate that he lacked

the capacity to understand and appreciate the consequences of speaking to the police

about his encounter with the three victims.

{¶29} As such, we conclude that L.W. voluntarily, knowingly, and intelligently

waived his Miranda rights. Consequently, the juvenile court properly admitted L.W.’s

tape-recorded statement. Accordingly, we overrule the first assigned error.

Ineffective Assistance of Counsel

{¶30} In the second assigned error, L.W. argues he was denied the effective

assistance of counsel.

{¶31} To succeed on a claim of ineffective assistance, a defendant must establish

that counsel’s performance was deficient and that the defendant was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

Counsel will only be considered deficient if his or her conduct fell below an objective

standard of reasonableness. Strickland at 688.

{¶32} When reviewing counsel’s performance, this court must be highly

deferential and “must indulge a strong presumption that counsel’s conduct [fell] within

the wide range of reasonable professional assistance.” Id. at 689. To establish resulting

prejudice, a defendant must show that the outcome of the proceedings would have been

different but for counsel’s deficient performance. Id. at 694.

{¶33} Within this assigned error, L.W. argues trial counsel was ineffective for

failing to file a motion to suppress the tape-recorded statement he gave to Detective Legg.

{¶34} “Failure to file a motion to suppress is not per se ineffective assistance of

counsel.” State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), citing

Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

Failure to file a motion to suppress constitutes ineffective assistance of counsel only if,

based upon the record, the motion would have been granted. State v. Robinson, 108 Ohio

App.3d 428, 433, 670 N.E.2d 1077 (3d Dist.1996).

{¶35} Thus, we must determine from the record whether a motion to suppress

would have been granted if L.W.’s trial counsel had filed one. If so, L.W.’s counsel was

ineffective for failing to file it. In the first assigned error, we found that L.W.
knowingly, voluntarily, and intelligently waived his Miranda rights and that the juvenile

court properly admitted the tape recorded statement. As such, in all likelihood, had

L.W.’s trial counsel filed a motion to suppress the tape-recorded statement to Detective

Legg, it would not have been granted. Consequently, L.W. has not demonstrated that he

was denied the effective assistance of counsel on this ground.

{¶36} Within this assigned error, L.W. also argues that trial counsel was

ineffective for failing to request separate trial from, C.M., his co-delinquent.

{¶37} R.C. 2945.13 states,

When two or more persons are jointly indicted for a felony, except a
capital offense, they shall be tried jointly unless the court, for good
cause shown on application therefor by the prosecuting attorney or
one or more of said defendants, orders one or more of said
defendants to be tried separately.

{¶38} Crim.R. 8(B) provides that two or more defendants may be charged in the

same indictment if they are alleged to have participated in the same series of acts

constituting an offense, or in the same course of criminal conduct. The joinder of

defendants and the avoidance of multiple trials are favored in the law because joinder

“conserves judicial and prosecutorial time, lessens the not inconsiderable expenses of

multiple trials, diminishes inconvenience to witnesses, and minimizes the possibility of

incongruous results in successive trials before different juries.” State v. Collins, 5th Dist.

Delaware No. 11CAA070064, 2012-Ohio-2450, quoting State v. Thomas, 61 Ohio St.2d

223, 225, 400 N.E.2d 401 (1980).
 {¶39} “The test is whether a joint trial is so manifestly prejudicial that the trial

judge is required to exercise his or her discretion in only one way by severing the trial. * *

* A defendant must show clear, manifest and undue prejudice and violation of a

substantive right resulting from failure to sever. * * *’” State v. Deltoro, 7th Dist.

Mahoning No. 07-MA-90, 2008-Ohio-4815, quoting State v. Schiebel, 55 Ohio St.3d 71,

89, 564 N.E.2d 54 (1990).

{¶40} In this case, L.W. can point to no prejudice he suffered as a result of his

joint trial with C.M., his co-delinquent. If L.W. had a separate trial, the evidence offered

against him would have been exactly the same as in his joint trial. There was no

evidence that was offered only against C.M. As such, in all likelihood, had trial counsel

requested a separate trial, the juvenile court would have denied the request.

{¶41} Finally, we note that the failure to do a futile act cannot be the basis for

claims of ineffective assistance of counsel and is not prejudicial. State v. Witherspoon,

8th Dist. Cuyahoga No. 94475, 2011-Ohio-704. Consequently, because we find that a

motion to suppress on either ground would have been futile, we decline to conclude

L.W.’s trial counsel was ineffective. Accordingly, we overrule the second assigned

error.

Sufficiency of the Evidence

{¶42} In the third assigned evidence, L.W. argues the evidence was insufficient to

sustain the adjudications.
 {¶43} It must first be noted that the same standard of review for sufficiency of

evidence applies to juvenile and adult criminal matters. In re G.R., 8th Dist. Cuyahoga

No. 90391, 2008-Ohio-3982, citing In re Washington, 81 Ohio St.3d 337, 691 N.E.2d 285

(1998). The sufficiency of the evidence standard of review is set forth in State v.

Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus:

Pursuant to Criminal Rule 29(A), a court shall not order an entry of
judgment of acquittal if the evidence is such that reasonable minds can
reach different conclusions as to whether each material element of a crime
has been proved beyond a reasonable doubt.

See also State v. Apanovitch, 33 Ohio St.3d 19, 23, 514 N.E.2d 394 (1987); State v.

Davis, 49 Ohio App.3d 109, 113, 550 N.E.2d 966 (8th Dist.1988).

{¶44} Bridgeman must be interpreted in light of the sufficiency test outlined in

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence
submitted 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560, followed.)

{¶45} Felonious assault is defined by R.C. 2903.11(A), which states that “[n]o

person shall knowingly: (1) Cause serious physical harm to another * * *; [or] (2) Cause

or attempt to cause physical harm to another * * * by means of a deadly weapon or

dangerous ordnance.” In re R.G., 8th Dist. Cuyahoga No. 90389, 2008-Ohio-6469.
 {¶46} In the instant case, it is undisputed that E.B. sustained serious physical harm

as a result of the gunshot wound. E.B. remained in a coma for almost two months, had to

have a part of his skull removed, and had to relearn basic functions. All three victims’

version of the two encounters parallels the version of the co-delinquents. Two of the

three victims testified that they concluded that the shots had to have come from the car

L.W. was driving because the shots rang out within seconds after L.W. honked the horn.

{¶47} Although, L.W. and his co-delinquent denied that shots were fired from the

car, both E.B. and E.M testified that there were no other people on the street and there

were no other cars around. Further, although I.G. testified that the shots came from

behind bushes across the street, Detective Legg testified that L.W. admitted that he had

contact with I.G. before coming to the police station. In this regard, the following

exchange took place in the tape-recorded interview played in open court:

The Detective: So how did we get past the point of you being picked out of
the photo arrays and them saying the shooter was in your car?

Mr. [L.W.] I talked to [I.G.] and he said that we are the only we say.
They are saying that other people, somebody jumping out the
bushes, came out the bushes, shooting out the bushes.

The Detective: So some random phantom guy just jumps out the bushes and
starts shooting?

Mr. [L.W.] I don’t know. There are people at Wade Park. I talked to
half of them, all his friends, all of them, his sister. How
many witnesses was there? There was only three of them, I
think. (Tr. 153.)
 {¶48} Interestingly, I.G.’s testimony, the only victim that did not conclude that

the gunshots came from the car, mirrors the above excerpt of L.W.’s tape-recorded

statement to Detective Legg.

{¶49} Although the evidence is largely circumstantial, we note that circumstantial

evidence has the same probative value as direct evidence. In re N.S., 8th Dist. Cuyahoga

No. 93153, 2010-Ohio-1057, citing State v. Basham, 5th Dist. Muskingum No.

CT2007-0010, 2007-Ohio-6995. As such, in reviewing the evidence in a light most

favorable to the prosecution, we find that any rational trier of fact would conclude, given

that there were no other cars or people around, and given that gunshots rang out within

seconds after L.W. honked the car’s horn, that the gunshots were fired from the car.

{¶50} Further, because E.B. sustained serious physical injuries that could have

been fatal, any rational trier of fact would conclude that the essential elements of

felonious assault, along with the attached specifications, proven beyond a reasonable

doubt. Thus, there exists sufficient evidence to sustain L.W.’s delinquency adjudication

for felonious assault and the accompanying specifications. Accordingly, we overrule

the third assigned error.

Manifest Weight of the Evidence

{¶51} In the fourth assigned error, L.W. argues his adjudications were against the

manifest weight of the evidence.
 {¶52} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,

the Ohio Supreme Court recently addressed the standard of review for a criminal manifest

weight challenge, as follows:

“The criminal manifest-weight-of-the-evidence standard was explained in
State v. Thompkins, 78 Ohio St.3d 380, 1997 Ohio 52, 678 N.E.2d 541. In
Thompkins, the court distinguished between sufficiency of the evidence and
manifest weight of the evidence, finding that these concepts differ both
qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held
that sufficiency of the evidence is a test of adequacy as to whether the
evidence is legally sufficient to support a verdict as a matter of law, but
weight of the evidence addresses the evidence’s effect of inducing belief.
Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks
whose evidence is more persuasive — the state’s or the defendant’s? We
went on to hold that although there may be sufficient evidence to support a
judgment, it could nevertheless be against the manifest weight of the
evidence. Id. at 387, 678 N.E.2d 541. ‘When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of
the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
with the factfinder’s resolution of the conflicting testimony. Id. at 387, 678
N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72
L.Ed.2d 652 (1982).

{¶53} As discussed in the third assigned error, the state presented sufficient

evidence to establish that L.W. caused serious physical harm to E.B. Nonetheless, L.W.

argues that the state’s witnesses gave conflicting testimony; that no one saw

co-delinquent C.M. fire a gun; that there was a lack of physical or forensic evidence; and

that E.B.’s injury was inconsistent with the state’s theory of the case.

{¶54} However, 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.
Chavez, 8th Dist. Cuyahoga No. 99436, 2013-Ohio-4700, citing State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212 (1967), at paragraphs one and two of the syllabus.

{¶55} Further, because the factfinder has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find

that a judgment is against the manifest weight of the evidence requires that substantial

deference be extended to the factfinder’s determinations of credibility. State v.

Robinson, 8th Dist. Cuyahoga No. 99290, 2013-Ohio-4375, citing State v. Lawson, 2d

Dist. Montgomery No. 16288, 1997 Ohio App. LEXIS 3709 (Aug. 22, 1997). Thus, the

decision whether, and to what extent, to credit the testimony of particular witnesses is

within the peculiar competence of the factfinder, who has seen and heard the witness.

{¶56} Here, while acknowledging the presence of conflicting testimony, as

discussed in the third assigned error, the logical conclusion, from the evidence presented,

is that the gunshots were fired from the car L.W. was driving. Despite I.G.’s claim that

he saw sparkles coming diagonally across the street behind bushes, L.W. admitted in the

tape-recorded interview with Detective Legg, that he contacted I.G. before coming to the

police station. As previously noted, when the police finally contacted I.G., he refused to

cooperate, and subsequently relocated from the Cleveland area presumably because of

threats.

{¶57} Thus, it was in the province of the juvenile court to conclude that I.G.’s

version of the events was procured through threats. The juvenile court could also have

concluded that I.G.’s version of the events was blurred by having smoked an admittedly
highly potent dose of marijuana. The juvenile court, who had the opportunity to see and

hear the witnesses, had the peculiar advantage to competently credit or discount the

testimony of a particular witness.

{¶58} Thus, based on the foregoing, we cannot say that the juvenile court clearly

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

against the manifest weight of the evidence. Accordingly, we overrule the fourth

assigned error.

Firearm Specification

{¶59} In the fifth assigned error, L.W. argues the juvenile court erred when it

adjudicated him delinquent of firearm specifications under both R.C. 2941.145 and

2941.146 for the same conduct, in violation of R.C. 2941.25(A).

{¶60} R.C. 2152.17 governs commitments for specifications in juvenile cases, and

provides in part as follows:

(A) Subject to division (D) of this section, if a child is adjudicated a
delinquent child for committing an act, other than a violation of section
2923.12 of the Revised Code, that would be a felony if committed by an
adult and if the court determines that, if the child was an adult, the child
would be guilty of a specification of the type set forth in section 2941.141,
2941.144, 2941.145, 2941.146, 2941.1412, 2941.1414, or 2941.1415 of the
Revised Code, in addition to any commitment or other disposition the court
imposes for the underlying delinquent act, all of the following apply:

***

(2) If the court determines that the child would be guilty of a specification
of the type set forth in section 2941.145 of the Revised Code * * * and the
court determines that the child would be guilty of a specification of the type
set forth in section 2941.1415 of the Revised Code, the court shall commit
the child to the department of youth services for the specification for a
 definite period of not less than one and not more than three years, and the
court also shall commit the child to the department for the underlying
delinquent act under sections 2152.11 to 2152.16 of the Revised Code.

(3) If the court determines that the child would be guilty of a specification
of the type set forth in section 2941.144, 2941.146, or 2941.1412 of the
Revised Code * * * and the court determines that the child would be guilty
of a specification of the type set forth in section 2941.1414 of the Revised
Code, the court shall commit the child to the department of youth services
for the specification for a definite period of not less than one and not more
than five years, and the court also shall commit the child to the department
for the underlying delinquent act under sections 2152.11 to 2152.16 of the
Revised Code.

***

(E) The court shall not commit a child to the legal custody of the
department of youth services for a specification pursuant to this section for
a period that exceeds five years for any one delinquent act. Any
commitment imposed pursuant to division (A), (B), (C), or (D)(1) of this
section shall be in addition to, and shall be served consecutively with and
prior to, a period of commitment ordered under this chapter for the
underlying delinquent act, and each commitment imposed pursuant to
division (A), (B), (C), or (D)(1) of this section shall be in addition to, and
shall be served consecutively with, any other period of commitment
imposed under those divisions. If a commitment is imposed under division
(A) or (B) of this section and a commitment also is imposed under division
(C) of this section, the period imposed under division (A) or (B) of this
section shall be served prior to the period imposed under division (C) of this
section.

***

The total of all the periods of commitment imposed for any specification
under this section and for the underlying offense shall not exceed the child’s
attainment of twenty-one years of age.

(Emphasis added.)

{¶61} At the outset we note, a firearm specification and its predicate offense are

not allied offenses of similar import “because a firearm specification is a penalty
enhancement, not a criminal offense.” State v. A.H., 8th Dist. Cuyahoga No. 98622,

2013-Ohio-2525, citing State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d

498, ¶ 19. Under the above governing statutory mandate, the juvenile court is without

discretion when sentencing juveniles on delinquencies for firearm specifications under

R.C. 2941.145 and 2941.146.

{¶62} When firearm specifications under both R.C. 2941.145 and 2941.146

accompany the same offense and are both found true, a court must impose a three-year

term under R.C. 2929.14(D)(1)(a)(ii) and a five-year term under R.C. 2929.14(D)(1)(c).

State v. Hudson, 2d Dist. Montgomery No. 23328, 2010-Ohio-1622. See also State v.

Gresham, 8th Dist. Cuyahoga No. 81250, 2003-Ohio-744. Further, the above-mentioned

statutory provisions apply regardless of whether the juvenile was adjudicated delinquent

as the principal offender or an accomplice. See R.C. 2152.17(B)(2).

{¶63} Based on the foregoing, the juvenile court did not err when it imposed

separate and consecutive commitments. Accordingly, we overrule the fifth assigned error.

{¶64} 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 be sent to said court to carry this judgment into

execution. The trial court’s adjudication of delinquency having been affirmed, any bail

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

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

the Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR