[Cite as State v. Daniels, 2025-Ohio-1930.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 114259 v. :
DEMAREA DANIELS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART AND VACATED IN PART RELEASED AND JOURNALIZED: May 29, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-687348-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mason McCarthy, Assistant Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Rick Ferrara, Assistant Public Defender, for appellant.
EILEEN T. GALLAGHER, J.:
Appellant Demarea Daniels (“Daniels”) appeals his convictions for
making false alarms, identity fraud, and aggravated menacing. He assigns four
assignments of error for our review: 1. Defense counsel provided ineffective assistance of counsel.
2. Appellant suffered plain error by introduction of search warrant photographs.
3. Appellant’s conviction for making false alarms is not support by sufficient evidence.
4. Appellant’s convictions are against the manifest weight of the evidence.
After a thorough review of the applicable law and facts, we vacate
Daniels’s conviction for making false alarms but affirm the remainder of his
convictions.
I. Factual and Procedural History
In September 2023, the Garfield Heights Police Department received a
911 call where a person stated that he “need[ed] help” and that he was “giving up on
life” and “just want[ed] to blow up the police department.” (State’s exhibit No. 1.)
The caller claimed to be an individual named D.W. and provided D.W.’s name,
address, and employer.
Police officers responded to D.W.’s home and place of employment,
Amazon, to investigate his connection to the threat. They questioned D.W. about
the call. He told the officers that he had been at work and had not made any calls.
Within the same time period, Lieutenant M.B. and Detective J.S.
received threatening text messages on their personal cell phones from an individual
stating that he was D.W. Police were able to track the call records through a service
called TextNow, which provided the email address associated with the account that had made the call and sent the text messages. The email address was
demareadaniels042@gmail.com.
D.W. later went to the Garfield Heights Police Department where he
listened to a recording of the 911 call and identified Daniels as the caller. He had
been Daniels’s supervisor at Amazon for approximately a year and a half. He further
identified Daniels from a photo array.
Daniels was charged with one count of making false alarms, a felony of
the third degree, in violation of R.C. 2917.32(A)(3); one count of identity fraud, a
felony of the fifth degree, in violation of R.C. 2913.49(B)(1); and two counts of
aggravated menacing, misdemeanors of the first degree, in violation of
R.C. 2903.21(A).
Prior to trial, Daniels’s counsel moved to withdraw from the case, citing
a breakdown of the attorney-client relationship. Specifically, Daniels’s attorney
stated that he could not constructively communicate with Daniels and, therefore,
could not represent him due to his receipt of excessive and irrational text messages
from Daniels. The court granted the motion to withdraw, and new counsel was
appointed.
Daniels waived his right to a jury trial, and the matter proceeded to a
bench trial.1 The State presented the testimony of D.W., M.B., J.S., and Kyle Zayac,
a communications officer with the Garfield Heights Police Department.
1 Daniels was also indicted on charges in a separate case that was joined with the instant
matter for trial. He was found not guilty of the crimes charged in the other case, and thus nothing relative to those charges will be addressed in this appeal. Daniels did not present any evidence or witnesses on his own behalf.
The court found Daniels guilty of making false alarms (Count 1),
identity fraud (Count 2), and two counts of aggravated menacing (Counts 3 and 4).
The court sentenced Daniels to a prison term of 18 months on Count 1, 12 months
on Count 2, and 180 days for Counts 3 and 4. All sentences were ordered to run
concurrently.
Daniels then filed the instant appeal.
II. Law and Analysis
For ease of analysis, we will address the assignments of error out of
order.
A. Photographs
In his second assignment of error, Daniels argues that the trial court
committed plain error by admitting 100 photographs that prejudiced him and had
no probative value. Specifically, Daniels argues that photographs of his apartment
were admitted that contained no relevant evidence but showed “nothing except food
containers strewn throughout, piled in closets, and kept on the floor.” He argues
that these photos were cumulative and had no purpose except to demonstrate that
Daniels had an iPhone.
The State contends that the photographs were relevant to demonstrate
the efforts made by police to recover the cell phone used in the offense and to show
that no one else was residing in the apartment who could have made the calls. Decisions on the admissibility of photographs are left to the sound
discretion of the trial court. State v. Lang, 2011-Ohio-4215, ¶ 138; State v. Slagle,
65 Ohio St.3d 597, 601 (1992). An abuse of discretion occurs when a court exercises
its judgment “in an unwarranted way, in regard to a matter over which it has
discretionary authority.” Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35. In other
words, “[a] court abuses its discretion when a legal rule entrusts a decision to a
judge’s discretion and the judge’s exercise of that discretion is outside of the legally
permissible range of choices.” State v. Hackett, 2020-Ohio-6699, ¶ 19. An abuse of
discretion may be found where a trial court “applies the wrong legal standard,
misapplies the correct legal standard, or relies on clearly erroneous findings of fact.”
State v. McFarland, 2022-Ohio-4638, ¶ 21 (8th Dist.), citing Thomas v. Cleveland,
2008-Ohio-1720, ¶ 15 (8th Dist.).
As Daniels acknowledges, we can only consider this assignment of
error under a plain-error review since Daniels’s trial counsel did not object to the
admission of the photographs.
Under Crim.R. 52(B), a plain error affecting a substantial right may be noticed by an appellate court even though it was not brought to the attention of the trial court. However, an error rises to the level of plain error only if, but for the error, the outcome of the proceedings would have been different. State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio- 3547, 912 N.E.2d 1106, ¶ 61; State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). “Notice of plain error . . . is to be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice.” Long at 97.
State v. Bouie, 2019-Ohio-4579, ¶ 42 (8th Dist.). A review of the exhibits illustrates that a fair number of the
photographs appear to have been irrelevant, particularly when they were not
evidence of Daniels’s identity or the commission of the crimes. Notwithstanding
that fact, the case was tried to the bench. Under Ohio law, in a bench trial, “the trial
court is entitled to the presumption of regularity, that is, the trial court is presumed
to know and follow the law in arriving at its judgment unless it affirmatively appears
to the contrary.” State v. Shropshire, 2016-Ohio-7224, ¶ 37 (8th Dist.), citing State
v. Eley, 77 Ohio St.3d 174, 180 (1996), citing State v. Post, 32 Ohio St.3d 380 (1987).
“In other words, in an appeal from a bench trial, we presume that a trial court relies
only on relevant, material, and competent evidence in arriving at its judgment.” Id.,
citing id. at 180.
Daniels has not shown how the outcome of the proceedings would
have been different had the photographs not been admitted. We further note that
Daniels was acquitted of the charges in the other case. Accordingly, Daniels has not
demonstrated plain error and his second assignment of error is overruled.
B. Ineffective Assistance of Counsel
In his first assignment of error, Daniels argues that his first trial
counsel was ineffective by maligning him to the court by essentially informing the
court of a “prior bad act” within his motion to withdraw. He further contends that
his second trial counsel was ineffective because he (1) failed to move to suppress an
unreliable identification, and (2) failed to object to the admission of prejudicial
photographs. In order to establish ineffective assistance of counsel, a defendant
must demonstrate (1) deficient performance by counsel, i.e., that counsel's
performance fell below an objective standard of reasonable representation; and
(2) that counsel’s errors prejudiced the defendant, i.e., a reasonable probability that
but for counsel’s errors, the outcome would have been different. Strickland v.
Washington, 466 U.S. 668, 687-688, 694 (1984); State v. Bradley, 42 Ohio St.3d
136 (1989), paragraphs two and three of the syllabus.
1. First trial counsel
Daniels argues that his first trial counsel caused prejudice to him by
the statements set forth in the attorney’s motion to withdraw from the case.
Specifically, Daniels notes that, in his motion, the attorney cites Daniels’s
“irrational” and “confused” text messages containing “delusional resolutions to his
cases.” He maintains that this conduct coincided with the allegations of the
complaint and constituted a “prior bad act” before trial even started. Daniels
contends that the error was compounded because the matter was tried to the bench
and the same judge that ruled on the motion to withdraw also determined Daniels’s
guilt.
Good cause must be demonstrated to warrant discharge of a court-
appointed attorney. State v. Sims, 2018-Ohio-388, ¶ 17 (8th Dist.). A “complete
breakdown of communication” has been held to be an example of good cause. Id.,
citing State v. Burrell, 2014-Ohio-1356, ¶ 24 (11th Dist.). Here, Daniels’s first trial
counsel outlined in his motion the communication issues he had been having with Daniels. The motion set forth a breakdown in communication, stating that “the
inability to constructively communicate with Mr. Daniels makes representing him
difficult, if not impossible.” We cannot say that informing the court of issues that
were compromising counsel’s representation of Daniels caused his performance to
fall below an objective standard of reasonable representation.
Moreover, Daniels has not shown that the outcome of the trial would
have been different if his first counsel had not made the statements regarding
Daniels’s conduct in his motion to withdraw. In finding Daniels guilty of all counts,
the court noted that the evidence produced had proven each and every count beyond
a reasonable doubt. As noted above, “in a bench trial, the court is presumed to have
considered only the relevant, material, and competent evidence.” State v. Willis,
2008-Ohio-6156, ¶ 15 (8th Dist.), citing State v. Post, 32 Ohio St.3d 380, 384 (1987).
Daniels has not demonstrated that the court improperly considered the statements
in the motion when determining its verdict.
2. Second trial counsel
Daniels argues that his second trial counsel was ineffective because he
failed to move to suppress the identification made by D.W. He argues that D.W. was
told that Daniels was being investigated prior to identifying Daniels from a phone
call recording and a photo lineup. He contends that D.W. consequently had a
preconceived notion of who the person on the phone and in the photo array would
be. The failure to file a motion to suppress constitutes ineffective
assistance of counsel only when the record demonstrates that the motion would
have been successful if made. See State v. Moon, 2015-Ohio-1550, ¶ 28 (8th Dist.),
citing State v. Finch, 2012-Ohio-4727, ¶ 28 (5th Dist.) (“Failure to file a motion to
suppress constitutes ineffective assistance of counsel only if, based on the record,
the motion would have been granted.”); State v. Griffin, 2013-Ohio-5389, ¶18 (10th
Dist.) (“In order to establish ineffective assistance of counsel based upon failure to
file a motion to suppress, a defendant ‘must prove that there was a basis to suppress
the evidence in question.’”), quoting State v. Brown, 2007-Ohio-4837, ¶ 65, citing
State v. Adams, 2004-Ohio-5845, ¶ 35.
Courts determine the admissibility of challenged identification
testimony using a two-step process. First, the defendant must demonstrate that the
identification procedure was unnecessarily suggestive. If the defendant meets this
burden, the court must consider whether the procedure was so unduly suggestive as
to give rise to irreparable mistaken identification. State v. Bailey, 2014-Ohio-4684,
¶ 49 (8th Dist.), citing State v. Page, 2005-Ohio-1493, ¶ 12 (8th Dist.). The issue is
whether the identification, viewed under the totality of the circumstances, is reliable
despite the suggestive procedure. Bailey at id., citing State v. Wills, 120 Ohio
App.3d 320, 324-325 (8th Dist. 1997), citing Manson v. Brathwaite, 432 U.S. 98,
114 (1977).
We disagree with Daniels’s assertion that his second trial counsel
should have moved to suppress D.W.’s identification. The evidence stablished that D.W. was well acquainted with Daniels, who was one of D.W.’s associates while
employed at Amazon. D.W. testified that he was Daniels’s supervisor for
approximately a year and a half and that he had spoken to Daniels “face-to face”
“more than 30 to 40 times[ ]” and that he was “absolutely” familiar with Daniels’s
voice. (Tr. 60.) We cannot find that the identification procedure was unnecessarily
suggestive when D.W. was already familiar with both Daniels’s face and voice.
Even if we were to find that the identification process was
unnecessarily suggestive, Daniels cannot demonstrate the second prong — that the
procedure was so unduly suggestive as to give rise to irreparable mistaken
identification. There is no evidence of a mistaken identification here. Again, D.W.
was very familiar with Daniels, having supervised him at his employment for
approximately a year and a half.
Thus, we cannot find that the record contains any evidence that would
have justified the filing of a motion to suppress, and filing such a motion would have
been futile. “[T]he failure to do a futile act cannot be the basis for a claim of
ineffective assistance of counsel, nor could such a failure be prejudicial.” State v.
Nelson, 2017-Ohio-5568, ¶ 79 (8th Dist.), citing State v. Knox, 2013-Ohio-1662, ¶ 20
(8th Dist.), citing State v. Ford, 2007-Ohio-5722, ¶ 9 (8th Dist.).
Finally, Daniels contends that his second trial counsel was ineffective
for failing to object to the admission of prejudicial photographs of his apartment. As
we have determined above that Daniels did not demonstrate that the photographs
were prejudicial, his second trial counsel cannot be ineffective for failing to object. Daniels did not receive ineffective assistance by either of his trial
counsel, and his first assignment of error is overruled.
C. Sufficiency of the Evidence
In his third assignment of error, Daniels argues that his conviction for
making false alarms was unsupported by sufficient evidence. He contends that the
statute under which he was indicted, R.C. 2917.32(A)(3), requires that the offense
that was allegedly reported had occurred in the past, while in the instant case,
Daniels stated that he “want[ed] to blow up” the police department. He maintains
that he was expressing a future desire and, therefore, the evidence was insufficient
to show that he had reported an alleged offense that had not occurred.
“A challenge to the sufficiency of the evidence supporting a conviction
requires a determination of whether the state met its burden of production.” State
v. Hunter, 2006-Ohio-20, ¶ 41 (8th Dist.), citing State v. Thompkins, 78 Ohio St.3d
380, 390 (1997). When reviewing the sufficiency of the evidence, an appellate court
must determine “‘whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.’” State v. Leonard, 2004-Ohio-6235, ¶ 77,
quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
R.C. 2917.32(A)(3) prohibits any person from reporting to “any law
enforcement agency an alleged offense or other incident within its concern, knowing
that such offense did not occur.” Count 1 of the indictment charged Daniels with
“report[ing] to any law enforcement agency an alleged offense or other incident within its concern, knowing that such offense did not occur.” The count contained
a furthermore clause, which stated that “said conduct pertained to a purported,
threatened, or the actual use of a weapon of mass destruction.”
As the Supreme Court of Ohio has instructed:
A court’s objective when construing a statute is to give effect to the legislature’s intent. State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio- 4010, 998 N.E.2d 401, ¶ 10. We seek legislative intent first in the statutory language. State v. Chappell, 127 Ohio St.3d 376, 2010-Ohio- 5991, 939 N.E.2d 1234, ¶ 16. If the statutory language is clear and unambiguous, we apply it as written, giving effect to its plain meaning. In re Estate of Centorbi, 129 Ohio St.3d 78, 2011-Ohio-2267, 950 N.E.2d 505, ¶ 14. Further interpretation is necessary only when the statutory language is ambiguous and subject to varying interpretations. Chappell at ¶ 16. When a statute defines a criminal offense, we construe the statute strictly against the state and liberally in favor of the accused. R.C. 2901.04(A).
State v. Bryant, 2020-Ohio-1041, ¶ 12.
We agree that the State did not present sufficient evidence to meet the
elements of R.C. 2917.32(A)(3). Ohio courts have consistently held that a conviction
under this statute requires the State to prove that the defendant “made [a] false
report.” State v. Arnold, 2023-Ohio-1223, ¶ 13 (1st Dist.), citing E. Cleveland v.
Pratt, 10 Ohio St.2d 75, 76 (1967) (explaining that a person is guilty of giving a false
report to the police department when the person telephones the police and tells
them that a man has broken into her apartment, when in fact the report is false);
Centerville v. Knab, 2019-Ohio-1903 (2d Dist.) (sufficient evidence that defendant
had knowledge of the fact that there was no active shooter emergency or injured
person at his residence when he contacted 9-1-1 because defendant’s mother repeatedly told him that there was no one in the house with a gun); State v. Sommer,
2003-Ohio-5022 421, 423 (5th Dist.) (police chief made false report that escaped
party shot through his windshield and shot police chief in attempt to cover up his
accidental shooting of his vehicle’s windshield); State v. Barnwell, 1981 Ohio App.
LEXIS 14240, 4 (12th Dist. Apr. 1, 1981) (affirming a conviction for violating
R.C. 2917.32(A)(3) where “[i]t is uncontroverted that the appellant contacted the
Batavia Police officials and reported to them a robbery which had not occurred and
which he knew had not occurred”); State v. Freily, 1997 Ohio App. LEXIS 5475, 5
(3d Dist. Dec. 5, 1997) (“The essential element to be proven [under
R.C. 2917.32(A)(3)] is knowledge of the reporter that the offense reported had not
occurred.”).
Here, Daniels stated that he “need[ed] help,” was “giving up on life,”
and “want[ed] to “blow up the [Garfield Heights] police department.” (State’s
exhibit No. 1.) We agree with Daniels’s assertion that his statement regarding
blowing up the police department was not prohibited by R.C. 2917.32(A)(3) because
that subsection concerns the report of an event that a person knew had not actually
occurred — not an expression regarding an event that could possibly happen in the
future. Any reference to threats or future conduct is noticeably absent from
R.C. 2917.32(A)(3). Accordingly, we find that the State did not meet its burden of production with regard to this count.2 Daniels’s third assignment of error is
sustained, and his conviction for making false alarms is vacated.
D. Manifest Weight of the Evidence
In his fourth assignment of error, Daniels argues that his convictions
were against the manifest weight of the evidence because the court relied upon
inaccurate testimony, registration records, prejudicial photographs, and tainted
identification testimony.
In determining whether a conviction is against the manifest weight of
the evidence, the reviewing court must look at the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of the witnesses, and
determine whether in resolving conflicts in the evidence, the trier of fact clearly lost
its way and created such a miscarriage of justice that the conviction must be reversed
and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). We
will reverse a conviction as against the manifest weight of the evidence “‘only in the
exceptional case in which the evidence weighs heavily against the conviction.’” State
v. McLoyd, 2023-Ohio-4306, ¶ 40 (8th Dist.), quoting Thompkins at 387.
We have already determined that there was insufficient evidence to
support Daniels’s conviction for making false alarms. With regard to the other
counts, we found no merit to Daniels’s assertions regarding the photographs or
2 As noted by Daniels’s counsel at oral arguments, it appears that R.C. 2917.32(A)(1),
which prohibits “initiat[ing] or circulat[ing] a report or warning of an alleged or impending fire, explosion, crime, or other catastrophe, knowing that the report or warning is false and likely to cause public inconvenience or alarm,” may have been more applicable to the facts of this case. D.W.’s identification of Daniels. D.W. positively identified Daniels’s voice on the 911
call, and the call and text messages were traced back to a TextNow account that was
associated with Daniels’s name and email address. Coupled with the bench-trial
presumption that the trial court knows and follows the law and relies only on
relevant material and competent evidence in arriving at its judgment, we find that
the record does not support that this is the exceptional case where the evidence
weighs heavily against conviction.
Accordingly, Daniels’s convictions on Counts 2, 3, and 4 were not
against the manifest weight of the evidence and his fourth assignment of error is
overruled.
Daniels’s conviction for making false alarms is vacated. The
remainder of his convictions are affirmed.
It is ordered that appellee and appellant share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MICHELLE J. SHEEHAN, P.J., and MICHAEL JOHN RYAN, J., CONCUR