author: EILEEN T. GALLAGHER, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Michael MCMILLAN, Defendant-Appellant
    No. 105296
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 7, 2017
    Marcus S. Sidoti, Jordan & Sidoti, L.L.P., 50 Public Square, Terminal Tower, Suite 1900, Cleveland, Ohio 44113, Mary Catherine Corrigan, Corrigan Law Ohio, 4403 St. Clair Avenue, Cleveland, Ohio 44103, ATTORNEYS FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Kristin M. Karkutt, Katherine E. Mullin, Assistant Prosecuting Attorneys, The Justice Center, 8th and 9th Floors, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: E.T. Gallagher, J., Keough, A.J., and Stewart, J.
    JOURNAL ENTRY AND OPINION
   EILEEN T. GALLAGHER, J.:

{¶ 1} Defendant-appellant, Michael McMillan, appeals his conviction and sentence. He claims the following three errors:

1. The trial court erred by sentencing the appellant to multiple consecutive sentences.
2. Trial counsel was ineffective by stipulating to the findings of the competency evaluation rendering the plea involuntary.
3. The trial court's sentence of 18 years was contrary to law.

{¶ 2} We find no merit to the appeal and affirm the trial court's judgment.

I. Facts and Procedural History

{¶ 3} In July 2016, McMillan and his fiancé, Andre Avent, babysat R.M., a two-year old child, for a period of several weeks. While the child was in their care, McMillan and Avent burned him from head to toe with cigarette lighters, whipped him with a phone cord, and burned and twisted his penis. The child was also malnourished and sustained a significant knee injury. Consequently, McMillan was charged with two counts of child endangering, four counts of felonious assault, and five counts of kidnapping. All the charges were first-and second-degree felonies.

{¶ 4} At defense counsel's request, McMillan was referred for a competency evaluation. Dr. Nicole A. Livingston, of the court psychiatric clinic, evaluated McMillan and concluded to a reasonable degree of psychological certainty that he was competent to stand trial.

{¶ 5} McMillan subsequently entered a plea agreement with the state wherein McMillan agreed to testify against Avent in exchange for the state's dismissal of several counts against him. At the plea hearing, McMillan's trial counsel advised the court that "Mr. McMillan fully understands everything that was stated by the prosecution," and that he believed McMillan's guilty pleas would be "voluntary, knowing and intelligent." (Tr. 4.) In accordance with the plea agreement, McMillan pleaded guilty to one count of child endangering, three counts of kidnapping, and one count of felonious assault.

{¶ 6} At sentencing, McMillan's trial counsel conceded that McMillan was competent to stand trial but asserted that his intellectual deficits should be considered as mitigating factors in sentencing. Counsel explained that Avent threatened, manipulated, and dominated McMillan. Indeed, Avent burned McMillan as well as the two-year old child, and McMillan was afraid to report the abuse to police. The court acknowledged that McMillan may have been a victim, but nevertheless concluded that he deserved to be punished for his role in the torture of the two-year old victim. The court explained:

This child was tortured. * * * This defendant was a participant, and in addition to being a participant[,] he had the opportunity to stop it; he had the opportunity to go to the police, to take the child out of the home. There were so many missed opportunities to half the harm that was happening to this child.
And that is also part of what's happening here, that whatever fear you had, what [trial counsel] is telling me, if those things are true, I understand the fear that you have, and understand that you may have been a victim yourself, but it still comes down to the fact that you're an adult and this was a two-year old child, and you had the chance to stop it and you didn't. And then, in addition, you participated. Even if you were a passive participant, you're still a participant by not getting the child out of the room.

Thus, the court determined that although McMillan was not the primary perpetrator, his involvement "still caused great harm."

{¶ 7} The trial court merged two of the kidnapping convictions with other offenses, and sentenced McMillan to six years on each of the remaining kidnapping, felonious assault, and child endangering convictions, to be served consecutively for an aggregate 18-year prison term. McMillan now appeals his convictions and sentence.

II. Law and Analysis

A. Consecutive Sentences

{¶ 8} In the first assignment of error, McMillan argues the trial court erred in imposing consecutive sentences because the court's findings are not supported by the record. In the third assignment of error, McMillan argues his 18-year consecutive prison sentence is contrary to law. We discuss these assigned errors together because they are interrelated.

{¶ 9} R.C. 2953.08(G)(2) provides that a reviewing court may increase, reduce, modify, or vacate the imposition of consecutive sentences where the court "clearly and convincingly" finds either that (1) "the record does not support the sentencing court's findings under R.C. 2929.14(C)(4)," or (2) "the sentence is otherwise contrary to law."

{¶ 10} To impose consecutive sentences under R.C. 2929.14(C)(4), the trial court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender, that such sentences are not disproportionate to the seriousness of the conduct and to the danger the offender poses to the public, and that at least one of the following also applies:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶ 11} To comply with R.C. 2929.14(C)(4), the trial court must make the findings in open court and on the record at the sentencing hearing. This means " 'the [trial] court must note that it engaged in the analysis' and that it 'has considered the statutory criteria and specifie[d] which of the given bases warrants its decision.' " State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. Edmonson , 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999).

{¶ 12} Further, the reviewing court must be able to discern that the record supports the trial court's findings. State v. Davis , 8th Dist. Cuyahoga No. 102639, 2015-Ohio-4501, 2015 WL 6550721, ¶ 21, citing Bonnell at ¶ 29. A trial court is not, however, required to state its reasons for its findings, nor is it required to give a rote recitation of the statutory language, "provided that the necessary findings can be found in the record and are incorporated in the sentencing entry." Bonnell at ¶ 37.

{¶ 13} In imposing the consecutive sentences in this case, the trial court stated:

The Court finds that this sentence is necessary to protect the public from future crime and to punish the offender, and that the sentences are not disproportionate to the seriousness of your conduct and the danger you pose to the public.
The Court also finds at least two of the offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the offenses committed was so great or unusual that a single prison term would not adequately reflect the seriousness of your conduct.

Thus, the court made all the findings required by R.C. 2929.14(C) for the imposition of consecutive sentences at the sentencing hearing. The trial court also journalized the findings in the sentencing entry as required by Bonnell .

{¶ 14} McMillan argues, citing State v. Peak , 8th Dist. Cuyahoga No. 102850, 2015-Ohio-4702, 2015 WL 7075940, that the trial court must do more than merely state its findings on the record and in the journal entry. He contends that under our decision in Peak , the trial court was required to provide information to support its findings. However, we did not impose any additional sentencing requirements in Peak ; we simply applied Bonnell . Therefore, we reject McMillan's argument that the trial court must explain its findings on the record.

{¶ 15} McMillan also argues his conduct did not constitute the worst forms of the offenses. We disagree. The victim was a defenseless two-year old child, who suffered burns from head to toe. There was also evidence that McMillan and Avent whipped the child with a phone cord and burned and injured his penis by twisting it. These were not isolated acts perpetrated on an adult; they were a pattern of abuse that amounted to the torture of a defenseless two-year old child. Therefore, they were the worst forms of the offenses.

{¶ 16} McMillan also contends the record does not support the court's finding that consecutive sentences are not disproportionate to the seriousness his conduct. A defendant alleging disproportionality in felony sentencing has the burden of producing evidence that his sentence is disproportionate to sentences given to other offenders with similar records who have committed these offenses. State v. Wilson , 8th Dist. Cuyahoga No. 99331, 2013-Ohio-3915, 2013 WL 5005702, ¶ 16, citing State v. Breeden , 8th Dist. Cuyahoga No. 84663, 2005-Ohio-510, 2005 WL 315370, ¶ 81.

{¶ 17} McMillan failed to provide any explanation or evidence as to why or how his sentence is disproportionate to sentences imposed on similarly situated offenders. He thus fails to meet his burden of proving that his consecutive sentences are disproportionate to the seriousness of his conduct.

{¶ 18} Still, McMillan argues his consecutive sentences are contrary to law. However, a sentence is not clearly and convincingly contrary to law "where the trial court considers the purposes and principles of sentencing under R.C. 2929.11 as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly applies postrelease control, and sentences a defendant within the permissible statutory range." State v. A.H. , 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, 2013 WL 3156521, ¶ 10, citing State v. Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18, overruled on other grounds , in State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231.

{¶ 19} R.C. 2929.11(A) governs the purposes and principles of felony sentencing and provides that a sentence imposed for a felony shall be reasonably calculated to achieve two overriding purposes of felony sentencing (1) to protect the public from future crime by the offender and others, and (2) to punish the offender using the minimum sanctions that the court determines will accomplish those purposes. Furthermore, the sentence imposed shall be "commensurate with and not demeaning to the seriousness of the offender's conduct and its impact on the victim, and consistent with sentences imposed for similar crimes by similar offenders." R.C. 2929.11(B).

{¶ 20} R.C. 2929.12 delineates the seriousness and recidivism factors the sentencing court must consider in determining the most effective way to comply with the purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a nonexhaustive list of factors a trial court must consider when determining the seriousness of the offense and the likelihood that the offender will commit future offenses. As relevant here, R.C. 2929.12 provides that the court should consider (1) whether "the physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of * * * the * * * age of the victim," and (2) whether "[t]he victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense." R.C. 2929.12(B)(1) and (2).

{¶ 21} As previously stated, the trial court found that McMillan's consecutive sentence was necessary to protect the public and to punish McMillan. (Tr. 39.) In finding that consecutive service was not disproportionate to the seriousness of McMillan's conduct, the court implicitly found that consecutive sentences were "commensurate with and not demeaning to the seriousness of the offender's conduct and its impact on the victim, and consistent with sentences imposed for similar crimes by similar offenders." R.C. 2929.11(B). Therefore, the trial court complied with the requirements of R.C. 2929.11.

{¶ 22} With respect to R.C. 2929.12, the court found that McMillan "tortured" a small child, and that the "child was harmed to a great extent." Moreover, the court found that McMillan's conduct was aggravated by the fact that he, as an adult, had the power to protect the child victim but failed to do so. Thus, the trial court found that the victim's mental and physical injury was exacerbated by his tender age. R.C. 2929.12(B)(1) and (2). Therefore, the trial court made the findings required by R.C. 2929.12.

{¶ 23} The trial court also properly imposed five years of mandatory postrelease control, and each of the individual six-year sentences were within the applicable statutory ranges. McMillan was convicted of first- and second-degree felonies. R.C. 2929.14 provides that prison terms for first-degree felonies "shall be three, four, five, six, seven, eight, nine, ten, or eleven years" and second-degree felonies shall be "two, three, four, five, six, seven, or eight years." Therefore, because the six-year prison terms on McMillan's first- and second-degree felonies are within the applicable statutory ranges, the sentences are not contrary to law.

{¶ 24} The first and third assignments of error are overruled.

B. Competency Evaluation

{¶ 25} In the second assignment of error, McMillan argues his guilty pleas were involuntary because he was mentally incompetent and could not understand the proceedings. He contends his involuntary guilty pleas resulted from the ineffective assistance of counsel because his trial counsel erroneously stipulated to the competency evaluation.

{¶ 26} Generally, a guilty plea waives all appealable errors that may have occurred in the trial court, including a claim of ineffective assistance of counsel, unless the errors precluded the defendant from knowingly, intelligently, and voluntarily entering a guilty plea. State v. Davis , 8th Dist. Cuyahoga No. 103764, 2016-Ohio-7222, 2016 WL 5886794, ¶ 23, citing State v. Geraci , 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, 2015 WL 4043007, ¶ 14. Therefore, where a defendant has entered a guilty plea, the defendant can prevail on an ineffective assistance of counsel claim only by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, he would not have pleaded guilty and would have insisted on going to trial. State v. Xie , 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992) ; Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

{¶ 27} McMillan argues his trial counsel was ineffective because he stipulated to the competency evaluation. By arguing that the stipulation resulted in involuntary guilty pleas, he implies he was not competent to enter the pleas knowingly, intelligently, and voluntarily. McMillan also contends his trial counsel should have requested an independent evaluation because counsel knew that the psychologist's observations were inconsistent with his own observations of him.

{¶ 28} The competency standard for pleading guilty is the same as competency to stand trial. State v. Mink , 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 57 ; Godinez v. Moran , 509 U.S. 389, 397-398, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). A defendant is presumed competent to stand trial or plead guilty unless the defendant proves, "by a preponderance of the evidence that, because of the defendant's present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense * * *." R.C. 2945.37(G) ; State v. Neyland , 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 32, citing State v. Jordan , 101 Ohio St.3d 216, 2004-Ohio-783, 804 N.E.2d 1, ¶ 28.

{¶ 29} McMillan argues he was not competent to plead guilty because he suffers from learning disabilities. However, a trial court may not find a defendant incompetent to stand trial or plead guilty solely because he suffers from a mental illness or intellectual disability. State v. Calabrese , 8th Dist. Cuyahoga No. 104151, 2017-Ohio-7316, 2017 WL 3635595, ¶ 16. The test for competency focuses entirely on the defendant's ability to understand the meaning of the proceedings against him and his ability to assist in his own defense regardless of the defendant's IQ. R.C. 2945.37(G) ; Neyland at ¶ 32.

{¶ 30} McMillan contends that Dr. Livingston's evaluation is not reliable because her findings were inconsistent with counsel's observations of him. McMillan told Dr. Livingston that he was never diagnosed with a learning disability or placed in special education classes, but his trial counsel informed the court that McMillan had an individualized education program ("IEP") in school because of a learning disability. McMillan also notes that he simultaneously reported to Dr. Livingston that he was never diagnosed with a learning disability but has received social security benefits since he graduated from high school because of his "disability of learning." He suggests these discrepancies render Dr. Livingston's evaluation unreliable. Although McMillan may have inaccurately reported to Dr. Livingston that he was never diagnosed with a learning disability, Dr. Livingston determined, based on her own evaluation, that McMillan had some learning deficits. She reported that McMillan was slow in making mathematical calculations and made some mathematical errors. She also noted that his "general fund of knowledge was slightly below average," and that his "ability to abstract was slightly below average."

{¶ 31} Nevertheless, Dr. Livingston also determined, to a reasonable degree of psychological certainty, that McMillan was able to understand the nature and objectives of the proceedings against him, and cited the following evidence to support this conclusion:

1. Following education, Mr. McMillan was able to identify his charges, the acts constituting such, their relative seriousness, and the potential penalties he could face should he be convicted.
2. Mr. McMillan was able to identify the roles and allegiances of important courtroom personnel with clarification and education.
3. Mr. McMillan was able to identify his available plea options and adequately define their meanings and consequences following education.
4. Mr. McMillan, following education, demonstrated an acceptable understanding of the plea bargaining process including the benefit to the defendant and the right sacrificed by the defendant.
5. Mr. McMillan manifested an appreciation for the adversarial nature of the legal process against him.

{¶ 32} Dr. Livingston also determined, to a reasonable degree of psychological certainty, that McMillan was able to assist counsel with his defense, and cited the following evidence to support this conclusion:

1. Mr. McMillan reported intent to disclose openly and honestly to his attorney and heed his attorney's legal advice. He reported willingness to trust his attorney.
2. Mr. McMillan's thought processes and speech were coherent and organized. Therefore, he would be capable of providing his attorney with pertinent information, testifying, and challenging prosecution witnesses.
3. Mr. McMillan was able to adequately appraise his legal situation. He is capable of evaluating legal advice and making reasoned decisions.
4. Mr. McMillan demonstrated adequate attention, concentration, and memory indicating he would be able to follow and process courtroom events.
5. Mr. McMillan, as demonstrated by his behavior during the evaluation, would be capable of conducting himself in an appropriate manner and tolerating the stress of a trial.

Therefore, although McMillan may have had a learning disability, there was credible evidence that he was able to understand the meaning of the proceedings against him and able to assist in his own defense.

{¶ 33} McMillan fails to identify how his trial counsel was ineffective. Both counsel and Dr. Livingston concluded that McMillan was competent to stand trial and enter his guilty pleas. Indeed, after discussing the terms of the plea agreement with McMillan, counsel advised the court that "Mr. McMillan fully understands everything that was stated by the prosecution, and * * * I believe that the plea that will be forthcoming from him at this time will be voluntary, knowing and intelligent." (Tr. 4.) At the sentencing hearing, counsel conceded that "[McMillan] was competent and does understand the proceedings here * * *." In short, there were no indicia of incompetency. Therefore, McMillan cannot demonstrate that his trial counsel was ineffective because he stipulated to the competency evaluation or failed to request an independent evaluation.

{¶ 34} The second assignment of error is overruled.

{¶ 35} Judgment affirmed.

KATHLEEN ANN KEOUGH, A.J., CONCURS;

MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY


source: Caselaw Access Project

author: FRANK D. CELEBREZZE, JR., J.:

license: Public Domain

text:
    SPIT SHINE A ONE DETAILER, L.L.C., Plaintiff-Appellant v. RICK CASE HYUNDAI, et al., Defendants-Appellees
    No. 105553
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 7, 2017
    Jason L. Carter, 16781 Chagrin Boulevard, Suite 287, Shaker Heights, Ohio 44120, ATTORNEY FOR APPELLANT.
    Robert E. Sickles, Broad and Cassel, 100 North Tampa Street, Suite 3500, Tampa, Florida 33602, Robert A. Poklar, Matthew Miller, Weston Hurd, L.L.P., The Tower at Erieview, 1301 East Ninth Street, Suite 1900, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLEES.
    BEFORE: Celebrezze, J., McCormack, P.J., and Boyle, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1.

{¶ 2} Appellant, Spit Shine A One Detailer, L.L.C. ("Spit Shine"), appeals the dismissal of its complaint against appellees, Rick Case Honda ("R.C. Honda"), Rick Case Hyundai ("R.C. Hyundai"), and Rick Case Automotive ("R.C.A."). Spit Shine argues that its breach of contract and fraudulent representation actions were improperly dismissed pursuant to Civ.R. 12(B)(6). After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 3} Given the summary nature of the proceedings below, the factual basis for the suit is vague. From the complaints filed in this case, it can be gleaned that Spit Shine alleges that it performed vehicle detailing services for two car dealerships, R.C. Honda and R.C. Hyundai. The complaints assert that Spit Shine entered into exclusive contracts with these two entities for car detailing services, but only attached a contract between R.C. Honda and "A One Detailers" to its first and second amended complaints. The contract does not set forth any terms for exclusivity. The complaints allege that Spit Shine, R.C. Honda, and R.C. Hyundai established a business relationship in 2011 where Spit Shine was the sole cleaning and detailing company used by the dealerships. In 2014, R.C. Honda stopped using Spit Shine for detailing services. In 2015, Spit Shine was no longer used for detailing services at either dealership, but it never received written notice of cancellation of the contracts, which required 30 days written notice.

{¶ 4} Spit Shine filed suit on September 2, 2016. Its initial complaint failed to attach any written agreement to it, and rather than answer, appellees filed a motion to dismiss or, in the alternative, for a more definite statement. Days later, Spit Shine filed its first amended complaint to which it attached the aforementioned 2013 contract. The trial court granted in part appellees' motions by ordering Spit Shine to file a second amended complaint clarifying paragraphs of the complaint that failed to distinguish between defendants, and that generally grouped all defendants together without distinguishing what each defendant allegedly did.

{¶ 5} Spit Shine filed a second amended complaint, and appellees filed another motion to dismiss. The trial court granted the motion to dismiss, finding [t]he complaint fails to state a claim upon which relief may be granted under Ohio law. The plaintiff instituting suit is named in the complaint's caption, "Spit Shine A One Detailer, LLC." Plaintiff's complaint alleges a breach of a contract. This contract on its face is between Milton Hall and Rick Case Honda. The complaint does not assert that Milton Hall is the same entity as the complaint's Spit Shine A One Detailer, LLC; and, it does not explain the relationship between those two legal persons such as, e.g., a successor-in-interest or "dba" entity. The plaintiff introduces unnecessary confusion on the issue of plaintiff's identity when it puts Spit Shine A One Detailer, LLC as the name of the plaintiff in the caption and in the introductory paragraph of the complaint which implies plaintiff is a corporate entity but then in paragraph one (1) alleges "Spit Shine A One Detailers is an individual * * *" the court assumes the latter paragraph of the complaint was not intended literally. Still the complaint does not allege the basis for the named plaintiff in the caption to have contract rights as against any party and it does not allege the basis for the named plaintiff to be entitled to bring a fraudulent representation action against the defendants. On this ground alone-as the analysis below further explains, the motion to dismiss under Civ.R. 12(b)(6) must be granted and the complaint dismissed.
The complaint fails to identify and attach a copy of the parties' alleged contract. The contract attached is not identified as the contract alleged to have been breached by any defendant; it is not identified as the contract in force at the time of the breach of contract by any defendant. It is described merely as "a version" of the pertinent contract. The complaint alleges only that the contractual relationship commenced in 2011 and suit is now brought some five years later.
No further allegations in the complaint make the content of the attached contract relevant to the content of the contract alleged to have been breached; no further allegations in the complaint describe the content of the contract at issue, that is, the contract alleged to have existed between the parties which was alleged to have been breached.
There is no allegation in the complaint as to the contents of the subject contract (particularly to obligations of the respective parties and any significant terms thereof) or as to any other parties thereto. There is no way of knowing if the contract sued upon by the plaintiff bears any similarity to the contract annexed to the complaint.
Due to these failures, the motion to dismiss the complaint's count one must be granted under Civ.R. 12(b)(6).
Parties who do not have a copy of the contract sued upon are permitted to explain their failure to attach a copy of the contract sued upon to their complaint pursuant to Civ.R. 10(d). Plaintiff does not provide such explanation. On the latter basis alone, the motion to dismiss the complaint's count one must be granted under Civ.R. 12(b)(6).
Additionally, the complaint does not contain allegations to hold defendant Rick Case Automotive Group liable and contains no allegations that would make defendant Rick Case Automotive Group liable for the conduct of its co-defendants even though the complaint alleges those two co-defendants are subsidiaries of Rick Case Automotive Group. This alone is a basis to dismiss the entire complaint under Civ.R. 12(b)(6) against defendant Rick Case Automotive Group.
The motion to dismiss must likewise be granted as to the complaint's count two on fraudulent misrepresentation. Basically this count only states that defendants' "representatives" made a statement that was disproved by later events. Plaintiff does not allege the relationship facts that would turn lies or misleading statements into actionable misstatements. For example, the complaint does not allege the "representatives" were agents or servants of defendants; it does not allege defendants or their representatives had such a relationship with plaintiff that plaintiff was entitled to rely thereon and the "representatives" were obligated to avoid misleading one in plaintiff's position. These conclusions would not necessarily change even if the complaint squarely alleged a specific contract among the parties.
The foregoing does not analyze the ability of the plaintiff to sue for fraudulent misrepresentation in the presence of a written contract. Legal defenses such as the parole evidence rule may preclude such a claim. The complaint does not specify the terms of the subject contract and therefore such analysis is inappropriate under this motion. On November 21, 2016, the court provided the plaintiff with an opportunity to amend Count Two (2) to satisfy the particularity requirement of Civ.R. 9 and ordered plaintiff to file an amended complaint. In the complaint (filed after said order) plaintiff failed to describe the exact content of the parties' contract, identify the contractual relationship between plaintiff and each defendant, and specify the ways in which the fraud was committed.
As a result the motion to dismiss count two of the complaint under Civ.R. 12(b)(6) is granted.

{¶ 6} Spit Shine then appealed raising one error for review:

1. The lower court abused its discretion when it granted the appellee's [sic] motion to dismiss.

II. Law and Analysis

A. Failure to State a Claim

{¶ 7} Spit Shine argues the trial court abused its discretion when it granted appellees' motion to dismiss.

{¶ 8} First, this court must note that it reviews a Civ.R. 12(B)(6) dismissal de novo, not for an abuse of discretion as Spit Shine's assignment of error indicates. Under this standard of review, we must independently review the record and afford no deference to the trial court's decision. Herakovic v. Catholic Diocese of Cleveland , 8th Dist. Cuyahoga No. 85467, 2005-Ohio-5985, 2005 WL 3007145, ¶ 13. Pursuant to Civ.R. 12(B)(6), a complaint is not subject to dismissal for failure to state a claim upon which relief may be granted unless it appears beyond doubt that the plaintiff can prove no plausible set of facts in support of his or her claim that would entitle the plaintiff to relief. Doe v. Archdiocese of Cincinnati , 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing O'Brien v. Univ. Community Tenants Union, Inc. , 42 Ohio St.2d 242, 327 N.E.2d 753 (1975). Therefore, "[a]s long as there is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss." York v. Ohio State Hwy. Patrol , 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991).

{¶ 9} This review is limited to the complaint and any documents attached thereto. Glazer v. Chase Home Fin. L.L.C. , 8th Dist. Cuyahoga Nos. 99736 and 99875, 2013-Ohio-5589, 2013 WL 7869273, ¶ 38, citing NCS Healthcare, Inc. v. Candlewood Partners, L.L.C. , 160 Ohio App.3d 421, 2005-Ohio-1669, 827 N.E.2d 797 (8th Dist.). This court must take all factual allegations made in the complaint as true. Powers v. Green Tree Servicing, L.L.C. , 8th Dist. Cuyahoga No. 102753, 2015-Ohio-3355, 2015 WL 4987744, ¶ 7.

1. Breach of Contract

{¶ 10} The complaint alleges that "Spit Shine A One Detailers" entered into a contract with R.C. Honda and R.C. Hyundai. However, the contract attached to the complaint was between R.C. Honda and "A One Detailers." An "M. A. Hall" signed the contract on behalf of "A One Detailers." There is nothing in the complaint to explain who or what "A One Detailers" is or who "M. A. Hall" is. Further, there is nothing explaining a relationship between Spit Shine and the contracting parties. The first paragraph of the complaint indicates that Spit Shine "is an individual who resides in the County of Cuyahoga, State of Ohio" and lists a Cleveland Heights address. The trial court faulted Spit Shine's failure to properly identify the parties in the case and the link between them and the parties that entered into the contract attached to the complaint. Further, the trial court incorrectly found that the failure to attach the agreement was reason enough for dismissal.

{¶ 11} Ohio is a notice pleading state, but a claim for breach of contract generally must include the contract under which the claim arises. Civ.R. 10(D). This rule provides that "[w]hen any claim * * * is founded on an account or other written instrument, a copy of the account or written instrument must be attached to the pleading." However, a motion to dismiss is not the proper avenue for challenging the failure to attach a written instrument to a complaint. Sylvester Summers, Jr. Co., L.P.A. v. E. Cleveland , 8th Dist. Cuyahoga No. 98227, 2013-Ohio-1339, 2013 WL 1384892, ¶ 31, citing Castle Hill Holdings, L.L.C. v. Al Hut, Inc. , 8th Dist. Cuyahoga No. 86442, 2006-Ohio-1353, 2006 WL 726911, ¶ 26. Civ.R. 12(E) is available in such an instance to request a more definite statement. Spit Shine does not argue or mention the inherent conflict between Civ.R. 10(D) or 12(E). Nor does Spit Shine argue that it is inappropriate to dismiss an action premised on Civ.R. 10(D). See Fletcher v. Univ. Hosps. of Cleveland , 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147.

{¶ 12} A complaint should not be dismissed for a failure to attach a written instrument pursuant to Civ.R. 10(D). Qualchoice, Inc. v. John Doe Ins. Co. , 8th Dist. Cuyahoga No. 91309, 2009-Ohio-351, 2009 WL 205864, ¶ 5-6 ; McCamon-Hunt Ins. Agency, Inc. v. Med. Mut. of Ohio , 7th Dist. Mahoning No. 02 CA 23, 2003-Ohio-1221, 2003 WL 1193812, ¶ 1. ("The failure to provide that document is a violation of Civ.R. 10(D), however, it is not a basis for relief under Civ.R. 12(B)(6)."); Natl. Check Bur. v. Buerger , 9th Dist. Lorain No. 06CA008882, 2006-Ohio-6673, 2006 WL 3702638, ¶ 12. A motion for a more definite statement is the appropriate means to address such an issue. Castle Hill Holdings , citing Point Rental Co. v. Posani , 52 Ohio App.2d 183, 186, 368 N.E.2d 1267 (10th Dist.1976). Where that results in noncompliance with the court's order by failure to attach the document or explain why it was not attached, the court could possibly dismiss the case pursuant to Civ.R. 41 as a sanction. Buerger at ¶ 14. The failure to attach a writing does not, in itself, render a claim subject to dismissal for failure to state a claim under Civ.R. 12(B)(6). Id. Further, where a writing is attached, it is only where the writing precludes recovery when a complaint should be dismissed pursuant to Civ.R. 12(B)(6). Buerger at ¶ 14.

{¶ 13} Spit Shine's second amended complaints indicate that it entered into contracts with appellees, an example of which was attached to the complaints. There was no explanation of the relationship of the parties named in the contract to the parties in the complaint. Spit Shine relies on the contract it attached to the complaint but fails to allege how "Spit Shine A One Detailers, LLC" is entitled to relief based on the attached agreement. The failure to link itself to the contracting parties in even the most basic terms leads to the conclusion that Spit Shine cannot rely on the contract attached to the complaint to assert a claim. This also leads to a lack of standing to enforce the agreement attached to the complaint. A lack of standing is appropriately raised under Civ.R. 12(B)(6). Brown v. Columbus City Schools Bd. of Edn. , 10th Dist. Franklin No. 08AP-1067, 2009-Ohio-3230, 2009 WL 1911904, ¶ 4 ; State ex rel. Cty. of Cuyahoga v. Jones Lang Lasalle Great Lakes Co. , 8th Dist. Cuyahoga No. 104157, 2017-Ohio-7727, 2017 WL 4177024, ¶ 6.

{¶ 14} Even if we consider the contract, the claims in the complaint fail for the reason that the contract has no provision for exclusivity or otherwise indicates that it is a requirements contract. The complaint alleges that R.C. Honda and R.C. Hyundai, over a period of time, stopped using Spit Shine for detailing services without providing written notice. The contract attached to the complaint demonstrates that there is no viable claim against R.C. Honda, R.C. Hyundai, and R.C.A. for breach of contract.

{¶ 15} Therefore, the trial court did not err in granting appellees' motion to dismiss the breach of contract claim.

2. Fraudulent Representation

{¶ 16} Spit Shine's claim for fraudulent misrepresentation constitutes a fraud claim that must be pled with particularity. Glazer , 8th Dist. Cuyahoga Nos. 99875 and 99736, 2013-Ohio-5589, 2013 WL 7869273, at ¶ 83. Civ.R. 9(B) provides, "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally."

{¶ 17} To establish a claim of fraudulent representation or concealment, a plaintiff must establish the following:

"(a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance."

Groob v. KeyBank , 108 Ohio St.3d 348, 357, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 47, quoting Gaines v. Preterm-Cleveland, Inc. , 33 Ohio St.3d 54, 55, 514 N.E.2d 709 (1987).

{¶ 18} Here, Spit Shine alleged in its complaints that it entered into contractual relationships after being told by unspecified representatives that the contracts were exclusive: "The Defendants, [R.C.] Hyundai and [R.C.] Honda by and through its representatives told the Plaintiff that the Contract was exclusive and the Plaintiff would perform all the contracted services for the [R.C.] Hyundai and [R.C.] Honda."

{¶ 19} The above provides a representation material to the transaction, but does not state the allegation with particularity. There is no way by which the appellees can identify when such a statement was alleged to have been made. This is because Spit Shine alleged that the parties entered into several agreements over the years.

{¶ 20} A plaintiff's duty to offer specifics when pleading a fraud claim must be balanced with the overarching goals of Ohio's notice pleading requirements: In this regard, we find the general propositions developed by the Second Circuit to be quite helpful in assessing the adequacy of a complaint sounding in fraud for purposes of Civ.R. 12(B)(6). The federal appeals court has stated that the particularity required by Fed.R.Civ.P. 9(b) means: (1) plaintiff must specify the statements claimed to be false; (2) the complaint must state the time and place where the statements were made; and, (3) plaintiff must identify the defendant claimed to have made the statement. Goldman v. Belden (C.A. 2, 1985), 754 F.2d 1059, 1069-1070. These requirements are intended to place potential defendants on notice of the precise statement being alleged as fraudulent, which is all that Civ.R. 9(B) requires. Id.
* * * Where numerous defendants are claimed to have participated in the fraudulent conduct, it would defeat the purpose of Civ.R. 8 to require a plaintiff to state with precision the exact time and place of each alleged misrepresentation. See Pierce v. Apple Valley, Inc. (S.D. Ohio 1984), 597 F.Supp. 1480, 1492-1493. Accordingly, a court should give due deference to the circumstances which surround the alleged fraudulent acts when invoking the requirement of particularity to test the sufficiency of a claim pursuant to Civ.R. 12(B)(6).

Korodi v. Minot , 40 Ohio App.3d 1, 531 N.E.2d 318 (10th Dist.1987).

{¶ 21} Here, Spit Shine alleged that it entered into several contracts with appellees and that at some point, some type of promise regarding exclusivity was made. The complaint fails to allege when this statement was made and by whom.

{¶ 22} Further, the allegations against R.C.A. are even more amorphous. Under the fraudulent misrepresentation claim, the complaint fails to allege any wrongdoing on the part of this entity. In its brief, Spit Shine argues that agents or employees of R.C.A., acting as agents for R.C. Honda and R.C. Hyundai, behaved fraudulently. However, the complaint alleges that Spit Shine entered into contract with R.C. Honda and R.C. Hyundai, with no mention of R.C.A.

{¶ 23} Spit Shine points to N. v. Higbee Co. , 131 Ohio St. 507, 3 N.E.2d 391 (1936), for support. Specifically, Spit Shine claims that this case stands for the proposition that a parent company may be held liable for the contractual obligations of a subsidiary company if the complaining party was defrauded by wrongful control exercised by the parent over the subsidiary. Since Higbee was decided, the Ohio Supreme Court has added additional elements that must be satisfied in order to pierce the corporate veil. The more modern test requires the following:

[T]he corporate form may be disregarded and individual shareholders held liable for corporate misdeeds when (1) control over the corporation by those to be held liable was so complete that the corporation has no separate mind, will, or existence of its own, (2) control over the corporation by those to be held liable was exercised in such a manner as to commit fraud or an illegal act against the person seeking to disregard the corporate entity, and (3) injury or unjust loss resulted to the plaintiff from such control and wrong.

Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos. , 67 Ohio St.3d 274, 289, 617 N.E.2d 1075 (1993). See also Dombroski v. WellPoint, Inc. , 119 Ohio St.3d 506, 2008-Ohio-4827, 895 N.E.2d 538 (modifying the second prong of the Belvedere test to include a broader range of offenses that could result in discarding corporate protections).

{¶ 24} Spit Shine's second amended complaint fails to even mention R.C.A. at all in its fraudulent misrepresentation claim. The complaint alleges that Spit Shine was informed by representatives of R.C. Honda and R.C. Hyundai that the agreements with Spit Shine were exclusive contracts. There is no allegation of any domination or control by R.C.A.

{¶ 25} The trial court appropriately found that Spit Shine's fraudulent misrepresentation claim was not pled with sufficient particularity. It is important to note that the trial court offered Spit Shine an opportunity to amend its complaint to better elucidate its claims, and Spit Shine failed to provide further factual details.

III. Conclusion

{¶ 26} The trial court inappropriately found that the failure to attach a contract is itself grounds for dismissal pursuant to Civ.R. 12(B)(6), but the court correctly granted appellees' motion to dismiss because Spit Shine's complaint fails to state a claim as set forth above.

{¶ 27} Judgment affirmed.

TIM McCORMACK, P.J., and

MARY J. BOYLE, J., CONCUR

      Appellee indicates that a review of the Ohio secretary of state's records indicates that "Spit Shine A One Detailer's" was a registered trade name that was cancelled on May 23, 2016, which appears to be associated with appellant, but there is no record of a limited liability company filing bearing the name captioned in the complaint.

      The trial court's decision wrongly concludes that the contract was between Milton Hall and R.C. Honda. The first paragraph of the contract indicates it is between "Rick Case Honda" and "A One Detailers." The contract was signed by M. A. Hall with a signature line denoting a signature on behalf of "A One Detailers."

      Here, appellees used that rule to request a more definite statement. The trial court granted the motion, and Spit Shine filed a second amended complaint, but failed to remedy the problems the trial court identified.


author: SEAN C. GALLAGHER, J.: ANITA LASTER MAYS, J., DISSENTING:

text:
    IN RE: T.W., A Minor Child
    No. 105346
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 7, 2017
    Michael C. O'Malley, Cuyahoga County Prosecutor BY: Justin Washburne, Assistant Prosecuting Attorney, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Mark A. Stanton, Cuyahoga County Public Defender By: Frank Cavallo, Assistant Public Defender, 310 Lakeside Avenue, Suite 200, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: S. Gallagher, J., McCormack, P.J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.:

{¶ 1} The state appeals the suppression of a show-up identification, colloquially referred to as a "cold stand" identification, under Juv.R. 22(F). We reverse.

{¶ 2} The victim made plans with another individual to purchase marijuana. While they were parked in a driveway waiting for the seller, two teenagers wearing hooded sweatshirts attacked and robbed the pair. The victim was in the front, passenger side of the car. An unidentified teenager, the one who approached the driver side of the vehicle, was wearing a black hooded sweatshirt and had "poofy" hair sticking out from underneath the donned hood. T.W. was described as wearing a gray hooded sweatshirt, but also had "poofy" hair sticking out from under the hood. Although the other individual was also attacked in the robbery, our focus is on the victim and his identification of T.W. The other individual was unable to identify either assailant.

{¶ 3} During the robbery, T.W. approached the victim and demanded his property. The victim's wallet and cash were stolen; however, the victim fought the assailant over a cell phone. The assailant struck the victim in the face with a gun and then punched him two more times, causing serious injury. Although it was dark out, the victim was able to see the assailant's face, relative age, race, gender, hairstyle, and color of clothing. The assailant was within an arm's length of the victim. After the victim refused to turn over his phone, the assailants both fled. The victim watched the assailants cut through the yard of a house on the same street.

{¶ 4} The police were immediately called and were provided the description of both assailants. Within minutes of receiving the call, a police officer drove to the relative location of the fleeing attackers. That officer observed two teenagers fitting the descriptions in front of a nearby house with several other people. The officer noted there was no other activity in the area, but the house was in the same direction as the fleeing assailants ran. The officer watched the teenager with the black sweatshirt enter the house and exit wearing a white T-shirt. The teenager with the gray, hooded sweatshirt remained outside. After backup arrived, both teenagers were detained.

{¶ 5} Less than a half hour after the crime, the victim was brought to the area where the teenagers were detained for a show-up identification. The victim remained in the back of the squad car while the suspects were separately shown from a distance. The victim identified T.W. as one of the assailants but was unable to identify the other, and that teenager was immediately released. There was some hesitation on the victim's part, but he explained at the suppression hearing that he was concerned about the consequences of identifying the wrong person. The actual dialogue from the body-camera footage is as follows:

Officer: "[Victim] is this the guy?"
Victim: "I'm pretty sure uh I don't, [sigh] I don't want to-?"
Officer (interrupting): "Hey-?"
Victim: "It's the grey hoodie and poofy hair that sticks out with me. I don't [sigh]-I hate to-"
Officer (interrupting): "Hey, look-"
Victim: "It's-if I would have to say, for, yeah-the gray hoodie and the hair was sticking out in front."

T.W. was arrested based on the victim's show-up identification. At the suppression hearing, the victim claimed to be 95 percent certain that T.W. was the person who attacked him.

{¶ 6} In reviewing the admissibility of out-of-court identifications, courts use a two-prong test.

State v. Davis , 8th Dist. Cuyahoga No. 101502, 2015-Ohio-1144, 2015 WL 1376580, ¶ 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." Id. , citing State v. Monford , 190 Ohio App.3d 35, 2010-Ohio-4732, 940 N.E.2d 634, ¶ 38 (10th Dist.), and Neil v. Biggers , 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

{¶ 7} If the defendant demonstrates that the identification procedure was unduly suggestive, then it must be determined whether the witness was unreliable under the totality of the circumstances. Id. at ¶ 21. The factors that must be considered 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. Id. , citing Biggers. "The focus is therefore upon the reliability of the identification and not the identification procedures themselves." Id. at ¶ 18, citing State v. Smith , 8th Dist. Cuyahoga No. 94545, 2011-Ohio-924, 2011 WL 743077, ¶ 18. No one factor is dispositive.

{¶ 8} We must be mindful that returning a suspect or witness to the vicinity of the crime for immediate identification " 'fosters the desirable objectives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh.' " State v. Madison , 64 Ohio St.2d 322, 332, 415 N.E.2d 272 (1980), quoting Bates v. United States , 405 F.2d 1104, 1106 (D.C.Cir.1968). Nevertheless, the state conceded that the sole focus in this case is upon the witness's reliability, or the second prong of the inquiry. The state did not contest T.W.'s claim that the identification procedure was unduly suggestive.

{¶ 9} Of the five Biggers factors, the trial court concluded that three weighed in favor of suppressing the show-up identification: the certainty of the victim's identification, the length of time the victim interacted with the assailant, and the witness's degree of attention at the time of the crime. The trial court concluded that the remaining two factors tended to demonstrate the reliability of the identification: the identification was near in time to the crime, and the victim's prior description of the assailant was accurate. In light of the totality of the circumstances and its consideration of the Biggers factors, the trial court concluded that the show-up identification was unreliable.

{¶ 10} Appellate review of a motion to suppress involves mixed questions of law and fact. "When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses." State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8, citing State v. Mills , 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). The trial court's findings of fact must be accepted only if supported by competent, credible evidence. Id., citing State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). "After accepting these facts as true, the appellate court then independently determines, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id. , citing State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

{¶ 11} As to the "length of time" factor, the trial court found that the victim did not have an extensive opportunity to view the assailant and that the generic description of the assailant's relative race, age, gender, clothing, and hairstyle did not "lend towards reliability of the identification." Although we accept the trial court's finding of fact, those conclusions are not based on the correct legal standard. A witness is not required to have an extended period of time to view the suspect in order for the identification to be deemed reliable; the witness just needs an opportunity. Mere seconds can be enough time. State v. Walker , 10th Dist. Franklin No. 02AP-679, 2003-Ohio-986, 2003 WL 757525, ¶ 17 (assailant was not wearing a mask, and part of his hair was visible so that the two or three seconds in which the victim observed the assailant demonstrated the reliability of the identification); United States v. Wong , 40 F.3d 1347, 1360 (2d Cir.1994) (looking at offender's face for two to three seconds was sufficient for identification to be deemed reliable).

{¶ 12} In this case, although the assault was brief and in a dimly lit area, the victim was able to identify the assailants' race, gender, relative age, attire (down to the color), and hairstyle. Although generic, the identification was accurate and allowed responding officers to identify two suspects fitting the description in the area of the assailants' flight. The law does not require an extended period of time to view a suspect; the focus is on what the witness is able to perceive within the time available. Id. The trial court's determination that an extensive period of time is necessary to demonstrate reliability is contrary to the law, and the trial court's own conclusion that the initial description of the assailant was accurate-the victim did not need extensive time to observe and note identifying factors in this case that allowed police officers to detain suspects fitting the earlier description.

{¶ 13} Further, the trial court concluded that although the victim was attentive during the robbery, a generic description of the assailant's race, age, gender, attire, and hairstyle did not lend itself toward reliability. Courts have concluded otherwise and have deemed such a description sufficient to demonstrate the reliability of the identification for the purposes of admissibility. State v. McRae , 8th Dist. Cuyahoga No. 96253, 2011-Ohio-6157, 2011 WL 5998202, ¶ 14 (defendant apprehended near where the witness claimed the assailant had fled and wearing clothing matching the description demonstrated reliability of the witness's identification); Walker at ¶ 17 (witness's pre-identification description of the assailant's race, size, hair, hat, and clothing demonstrated reliability); State v. Smith , 11th Dist. Trumbull No. 2008-T-0023, 2008-Ohio-6998, 2008 WL 5429204, ¶ 29 (witnesses' identification based on a particular hat increased the reliability of the identifications). The trial court did not provide any finding of fact to support the conclusion that the accurate, but generic, description of the assailant in this case detracted from the reliability of the identification. Instead, the trial court erroneously concluded that the generic description was in and of itself unreliable, which is contrary to the weight of authority.

{¶ 14} And finally as it relates to the certainty of the victim's identification, the inquiry at this stage of the proceeding is limited to weighing the reliability of the identification against what has been deemed an inherently suggestive identification procedure. Biggers , 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. On this point, the trial court concluded that the police officer's interruptions of the victim during the identification detracted from the certainty of the witness's identification and that the witness's explanation for why he hesitated in identifying T.W. was incredible by "what is so clearly shown during the actual identification." The first conclusion, however, impermissibly combines considerations relating to the suggestive nature of the identification with the witness's reliability factors under Biggers , and the second provides no factual basis to support the stated reason.

{¶ 15} The trial court considered factors that are to be considered in determining whether the procedure is unduly suggestive as weighing on the reliability of the witness. The manner in which the police officers conduct the show-up identification impacts the suggestiveness of the identification procedure, the first prong of analysis. When determining whether the procedure is unduly suggestive, the focus is on the police officer's conduct and procedure. Id. Factors used to review the procedure include the officer's statements to the witness before and during the identification. See, e.g., United States v. Arthur , 764 F.3d 92, 100 (1st Cir.2014) (in assessing whether the identification procedure was unduly suggestive, the court considered the officer's statements to the witness). Those factors are separate from those that support the witness's reliability, which is the second prong of the inquiry. State v. Jells , 53 Ohio St.3d 22, 27, 559 N.E.2d 464 (1990), citing State v. Lott , 51 Ohio St.3d 160, 175, 555 N.E.2d 293, 308 (1990) ; Manson v. Brathwaite , 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

{¶ 16} The second prong of the analysis is based on the reliability of the witness's identification independent of the police conduct and procedure. 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. Courts cannot bootstrap the suggestiveness inquiry, the first prong of the test, into the witness's reliability. See, e.g., State v. Williams , 10th Dist. Franklin Nos. 02AP-730 and 02AP-731, 2003-Ohio-5204, 2003 WL 22232921, ¶ 44 (the officers' statements were immaterial because the witness's identification was reliable); Williams v. Ercole , S.D.N.Y. No. 06 Civ. 0044, 2007 WL 1052446, *6 (Apr. 6, 2007) (officer's statements do raise issues with the independence of reliability of the show-up identification). Each prong of the inquiry is separate from the other. Davis , 8th Dist. Cuyahoga No. 101502, 2015-Ohio-1144, 2015 WL 1376580, at ¶ 22, citing State v. Green , 117 Ohio App.3d 644, 653, 691 N.E.2d 316 (1st Dist.1996). This is not to say that the statements are irrelevant. We are merely recognizing that the question of whether the police officer's statements made during the identification cast doubt on the accuracy of the identification, is one to be answered only by the trier of fact. United States v. Martinez , 462 F.3d 903, 911 (8th Cir.2006).

{¶ 17} With respect to the victim's certainty irrespective of the unduly suggestive procedure, the trial court did not provide any findings of fact to support the conclusion that the victim's explanation for his hesitation in identifying T.W. and his certainty of that identification were incredible. Instead, the trial court indicated that the victim's credibility was lacking by what was "so clearly shown during the actual identification."

{¶ 18} Upon review of the record, nothing inherently suggests that the victim did anything but identify T.W. solely based on his matching the description of the assailant's relative age, race, gender, hairstyle, and clothing. There is nothing in the footage that "clearly" demonstrates the victim to be incredible or having any uncertainty other than candidly admitting his identification was based on the generic description he provided police officers before the show-up identification took place. As already mentioned, courts have determined that such identifications are admissible, and therefore, a generic description of a suspect in and of itself is not a basis to deem the identification unreliable for the purposes of suppression. See, e.g., McRae , 8th Dist. Cuyahoga No. 96253, 2011-Ohio-6157, 2011 WL 5998202, at ¶ 14 ; Walker , 10th Dist. Franklin No. 02AP-679, 2003-Ohio-986, 2003 WL 757525, at ¶ 17 ; Smith , 11th Dist. Trumbull No. 2008-T-0023, 2008-Ohio-6998, 2008 WL 5429204, at ¶ 29 ; State v. Broomfield , 10th Dist. Franklin No. 96APA04-481, 1996 WL 631211, *3-4 (Oct. 31, 1996) (vague description of three suspects, indicating race and attire, demonstrated reliability of identification after police apprehended suspects in vicinity of the crime).

{¶ 19} Whether that identification is sufficient to prove the state's case is another matter altogether, but that is an issue left for the trier of fact after reviewing all the evidence. If the pretrial identification was not unnecessarily suggestive or not unreliable based on the totality of the circumstances, " 'any remaining questions as to reliability go to the weight of the identification, not its admissibility, and the identification is admissible.' " Davis , 8th Dist. Cuyahoga No. 101502, 2015-Ohio-1144, 2015 WL 1376580, at ¶ 22, citing State v. Fields , 8th Dist. Cuyahoga No. 99750, 2014-Ohio-301, 2014 WL 346723, and State v. Wills , 120 Ohio App.3d 320, 324, 697 N.E.2d 1072 (8th Dist.1997).

{¶ 20} In light of the errors in law, the suppressing of the show-up identification must be reversed. Based on the applicable law as applied to the trial court's findings of fact, the victim's identification was reliable despite the state's concession that the procedure was unduly suggestive. We reverse and remand for further proceedings.

TIM McCORMACK, P.J., CONCURS;

ANITA LASTER MAYS, J., DISSENTS WITH SEPARATE DISSENTING OPINION

ANITA LASTER MAYS, J., DISSENTING:

{¶ 21} I respectfully dissent from the majority's opinion reversing the trial court's granting of T.W.'s motion to suppress a "cold-stand" identification and remanding for further proceedings. I conclude that the facts do not support the applicable legal standard.

{¶ 22} The victim and another individual planned to purchase marijuana. The alleged seller was an acquaintance of the victim's friend. The acquaintance drove to a location in the Collinwood neighborhood of Cleveland and parked in a driveway to wait for the drug transaction to occur. While they were sitting in the driveway, two individuals approached the car and demanded their property. The victim stated that there was an assailant on each side of the vehicle. The victim stated that the assailant on his side of the vehicle opened his door, took his money and wallet, and demanded his phone. A struggled ensued over the phone and the assailant struck the victim in the face, ultimately leaving without the phone. However, the victim testified that he was able to see the assailant's face and to describe his clothing and approximate age.

{¶ 23} The Cleveland police were called. The victim and his acquaintance lied regarding their reason for being in the neighborhood. An officer testified that the area was not well lit. The victim relayed the description of his assailant to the police. Officers searched the area and located two teenagers fitting the description in front of a home with several other people. The home was in the direction of the fleeing assailants. After backup arrived, the two teenagers were detained. The victim was then brought to the area where the teenagers were detained.

{¶ 24} The victim identified T.W. as the assailant, with hesitation, but was unable to identify the other teen. The body camera footage dialogue was a follows:

Officer: "[Victim] is this the guy?"
Victim: "I'm pretty sure un I don't, [sigh] I don't want to-?"
Officer: (Interrupting) "Hey-?"
Victim: "It's the grey hoodie and poofy hair that sticks out with me. I don't [sigh]-I hate to-"
Officer: (Interrupting) "Hey, look-"
Victim: "It's-if I would have to say, for, yeah-the gray hoodie and the hair was sticking out in front."

T.W. was arrested based on this identification. At the suppression hearing, the victim now admitted that he was in the area to purchase marijuana and that now he was 95 percent certain that T.W. was the teenager that attacked him.

{¶ 25} When considering a trial court's grant or denial of a motion to suppress, this court's standard of review is divided into two parts. In State v. Lloyd , 126 Ohio App.3d 95, 709 N.E.2d 913 (7th Dist.1998), the court stated, "our standard of review with respect to motions to suppress is whether the trial court's findings are supported by competent, credible evidence." State v. Winand , 116 Ohio App.3d 286, 688 N.E.2d 9 (7th Dist.1996), citing Tallmadge v. McCoy , 96 Ohio App.3d 604, 645 N.E.2d 802 (9th Dist.1994). This is the appropriate standard because " '[i]n a hearing on a motion to suppress evidence, the trial court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.' " State v. Hopfer , 112 Ohio App.3d 521, 679 N.E.2d 321 (2d Dist.1996), quoting State v. Venham , 96 Ohio App.3d 649, 645 N.E.2d 831 (4th Dist.1994). "However, once we accept those facts as true, we must independently determine, as a matter of law and without deference to the trial court's conclusion, whether the trial court met the applicable legal standard." State v. Parker , 8th Dist. Cuyahoga No. 93835, 2011-Ohio-1059, 2011 WL 826253, ¶ 31.

{¶ 26} Courts employ a two-step process when determining the admissibility of identification testimony arising from relying on cold stands. The first step focuses only upon whether the identification procedure was impermissibly suggestive. See, e.g., State v. Gross , 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061 ; State v. Broom , 40 Ohio St.3d 277, 533 N.E.2d 682 (1988) ; State v. Jackson , 8th Dist. Cuyahoga No. 91613, 2009-Ohio-2388, 2009 WL 1424090, ¶ 24.

{¶ 27} The second part of the inquiry then focuses upon five factors necessary to assess the reliability of the identification, despite the taint of the show-up. Id. at ¶25. This court has previously explained the conditions necessary for a proper "cold stand."

A cold stand or one-on-one show-up identification is permissible as long as the trial court considers the following factors: "(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation."

State v. Patton , 8th Dist. Cuyahoga No. 88119, 2007-Ohio-990, 2007 WL 701140, ¶ 17, quoting State v. Thompson , 8th Dist. Cuyahoga No. 79938, 2002-Ohio-2390, 2002 WL 999312. State v. Cole , 8th Dist. Cuyahoga No. 93192, 2010-Ohio-5114, 2010 WL 4132227, ¶ 22.

{¶ 28} After a review of the record, it appears that the state is not challenging the law that has been used regarding the second part of the inquiry, but the applicability of the facts to the law. I would find that the trial court's findings regarding the victim's hesitation of identification was supported by competent, credible evidence and the weight given was sufficient to grant the motion to suppress.

{¶ 29} I would submit that the record supports that the victim did not have an opportunity to sufficiently view T.W. The record reflects that the assailant opened the door and immediately began to rob and then attack the victim. The victim was hit several times with the gun. The record supports that in the little time the assailant attacked the victim, he was only able to see that the assailant was young with poofy hair and a grey hoodie. The attack was quick and in an area not well lit. This description was too vague.

{¶ 30} The victim's level of certainty was a mere guess. It is true that the record reflects that the victim saw a grey hoodie and poofy hair, but I am not convinced that the victim actually saw the assailant's face. This is evident by the victim's statement that "the grey hoodie and poofy hair sticks out to me" and "if I would have to say, for, yeah-the grey hoodie and hair was sticking out front." The victim's hesitation and uncertainty in his voice leads me to believe that his level of certainty was well below what he testified to in court. Additionally, the officer's interruptions, as if he was rushing the victim, pressured the victim to make an identification.

{¶ 31} For these reasons, I would affirm the trial court's findings suppressing the unreliable identification of T.W.