In re D.M.

2011 Ohio 276

• Court: Ohio Court of Appeals
• Decided: January 24, 2011
• Docket: 2010CA00213
• Status: Published

Opinion

[Cite as In re D.M., 2011-Ohio-276.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: JUDGES: Hon. W. Scott Gwin, P.J. D. M. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. JUVENILE DELINQUENT Case No. 2010CA00213

OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2010CR00661

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 24, 2011

APPEARANCES:

For Appellant For Appellee

CRISTIN ROUSH JOHN D. FERRERO 200 West Tuscarawas Street Stark County Prosecutor Suite 200 Canton, OH 44702 By: RENEE M. WATSON Assistant Prosecuting Attorney 110 Central Plaza South Suite 510 Canton, OH 44702 Stark County, Case No. 2010CA00213 2

Farmer, J.

{¶1} On March 27, 2010, appellant, D. M., a juvenile, was arrested on one

count of inducing panic in violation of R.C. 2917.31 and two counts of aggravated

menacing in violation of R.C. 2903.21. Said charges arose from an incident wherein a

juvenile shot a gun into the air in the vicinity of a number of individuals, including

children.

{¶2} A bench trial before a magistrate commenced on May 7, 2010. The

magistrate found appellant delinquent by reason of inducing panic. Appellant filed

objections. A hearing was held on June 29, 2010. By judgment entry filed July 1, 2010,

the trial court denied the objections. Following a dispositional hearing, the trial court

committed appellant to CCF. See, Judgment Entry filed July 15, 2010.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶4} "THE TRIAL COURT ERRED BY FINDING D.M. DELIQUENT (SIC) OF

INDUCING PANIC BECAUSE ITS DETERMINATION WAS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE."

II

{¶5} "THE TRIAL COURT ERRED BY FINDING D.M. DELIQUENT (SIC) OF

INDUCING PANIC BECAUSE THE STATE DID NOT SHOW THAT THE JUVENILE

COURT HAD PERSONAL JURISDICTION OF THE CASE." Stark County, Case No. 2010CA00213 3

{¶6} Appellant claims the trial court's determination of delinquency by inducing

panic was against the sufficiency and manifest weight of the evidence. We disagree.

{¶7} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks (1991), 61 Ohio St.3d 259. "The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. On

review for manifest weight, a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175. See also, State

v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction." Martin at 175.

{¶8} Appellant was found delinquent by inducing panic in violation of R.C.

2917.31 which states the following:

{¶9} "(A) No person shall cause the evacuation of any public place, or

otherwise cause serious public inconvenience or alarm, by doing any of the following:

{¶10} "(1) Initiating or circulating a report or warning of an alleged or impending

fire, explosion, crime, or other catastrophe, knowing that such report or warning is false; Stark County, Case No. 2010CA00213 4

{¶11} "(2) Threatening to commit any offense of violence;

{¶12} "(3) Committing any offense, with reckless disregard of the likelihood that

its commission will cause serious public inconvenience or alarm."

{¶13} Appellant challenges the evidence as it did not identify him as the person

who fired the gun.

{¶14} Alliance Police Officers John Capper and Roy Tittle received radio

messages about shots being fired. T. at 8, 41. Both officers responded to the call. Id.

The two officers did not go directly to the scene, but went to appellant's home, as he

was the named suspect. T. at 9, 41-42. The officers observed appellant through the

window, acting frantic and pacing back and forth. T. at 43. When appellant saw the

officers, he retreated into a back bedroom. Id. Officer Tittle coaxed appellant to come

to the door. T. at 9, 43. Appellant appeared to be similar to the suspect described by

the 911 caller: braids in his hair, wearing dark clothing, and 5'4" tall which is classified

as short. T. at 10, 44. Appellant admitted knowledge of the incident, but denied he was

the shooter. T. at 10. The time from the 911 call to talking to appellant was under eight

minutes. T. at 10, 44.

{¶15} Officer Capper then went to the scene of the incident to talk to the

individual who made the 911 call, Nicole Davis. T. at 11. Ms. Davis appeared visibly

upset and frantic. Id. She specifically identified appellant by his name as well as his

nickname, "Shorty," and stated she knew him by sight. T. at 12, 17. Ms. Davis

provided a written statement wherein she identified appellant by his nickname as the

shooter. Id.; State's Exhibit 2. Stark County, Case No. 2010CA00213 5

{¶16} During her testimony, Ms. Davis readily admitted that she made the 911

call and identified appellant as the individual who fired the gun. T. at 23, 25, 31; State's

Exhibit 1. She identified the shooter by his given name as well as "Shorty," with single

braids, wearing dark clothing. T. at 11, 25, 33-34. Ms. Davis admitted to making a

written statement and identifying appellant as "Shorty" therein. T. at 32-33, 36; State's

Exhibit 2. However, she claimed appellant was "not the boy that had done it." T. at 29.

As of the time of her testimony, Ms. Davis did not think appellant was involved in the

incident, "[b]ut at first, I did***because of the kids giving me his name. Yes, I did think

he was the boy that did it. But today, I do not think it." T. at 30.

{¶17} Admittedly, Ms. Davis was the only witness who testified as to the

incident. Appellant argues her recanted identification during the trial was more credible

than her statements made at the time of the incident. We note the weight to be given to

the evidence and the credibility of the witnesses are issues for the trier of fact. State v.

Jamison (1990), 49 Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881. The trier of

fact "has the best opportunity to view the demeanor, attitude, and credibility of each

witness, something that does not translate well on the written page." Davis v.

Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.

{¶18} Originally, Ms. Davis unequivocally identified appellant by his name as

well as his nickname as the individual who fired the gun. After a passage of time, she

changed her identification, claiming she was in error. However, she purposefully

thwarted the subpoenaed testimony of another witness, her son, by telling him not to

come to court. T. at 37-38. The circumstantial evidence supports Ms. Davis's initial

identification. Appellant was aware of the incident within minutes of it happening. He Stark County, Case No. 2010CA00213 6

was dressed similarly to the "shooter", had braids, is 5'4" tall, and was acting frantically

right after the incident as observed by Officer Tittle.

{¶19} Appellant also argues the finding was not supported by the evidence

because the gun was never found or admitted into evidence. The statutory elements of

inducing panic do not require the production of a weapon.

{¶20} Upon review, we find sufficient evidence in the record to establish the

finding of delinquency by inducing panic, and no manifest miscarriage of justice.

{¶21} Assignment of Error I is denied.

{¶22} Appellant claims the trial court erred in finding him delinquent because it

did not have personal jurisdiction over the case. We disagree.

{¶23} R.C. 2151.23(A)(1) provides that a juvenile court has exclusive original

jurisdiction over any child alleged to be delinquent. R.C. 2151.011(B)(5) defines a child

as a "person who is under eighteen years of age." Appellant argues the state failed to

prove an essential fact of the complaint, to wit: he was under the age of eighteen.

Appellant's Brief at 6.

{¶24} The complaint filed on March 29, 2010 acknowledged appellant's age as

sixteen. Appellant never challenged the issue of personal jurisdiction prior to trial.

During the state's case-in-chief, Ms. Davis referred to appellant and the other individuals

at the scene as "kids." T. at 27. Officer Tittle testified he was familiar with appellant

and he attended either Alliance High School or was home schooled. T. at 41-42, 45.

While it is true that not one witness testified directly to appellant's age during the state's

case-in-chief, appellant's mother during her testimony admitted that appellant was Stark County, Case No. 2010CA00213 7

sixteen years old at the time of the incident. T. at 54. Furthermore, appellant was

already on probation to the trial court. July 7, 2010 T. at 3, 4-5.

{¶25} In In Re Burton S. (1999), 136 Ohio App.3d 386, our brethren from the

Sixth District stated the following at 391-392:

{¶26} "Rather, he [appellant] is, in reality, contending that the court had no

personal jurisdiction because appellee failed to present evidence at trial of his age.

Since appellant failed to challenge personal jurisdiction either in a responsive pleading

or a motion prior to his answer, he waived any defense based upon personal

jurisdiction. Moreover, because appellant was, in fact, under eighteen at the time of the

offense, any such motion would have been denied.

{¶27} "Appellant may also be arguing that appellee failed to establish his age

which is an essential element to prove a delinquency charge. This argument is

basically a sufficiency of the evidence issue. However, in our view, once a trial court

has properly established subject matter and personal jurisdiction over an alleged

juvenile offender, additional evidence of the juvenile's age is not essential to a finding of

delinquency, unless one of the elements of the adult crime alleged requires specific

proof of age."

{¶28} The offense of inducing panic does not require specific proof of age.

{¶29} Upon review, we find there were sufficient facts in the record to establish

the trial court's personal jurisdiction over the case.

{¶30} Assignment of Error II is denied. Stark County, Case No. 2010CA00213 8

{¶31} The judgment of the Court of Common Pleas of Stark County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.

_s/ Sheila G. Farmer_ _____________

_s/ W. Scott Gwin ________________

_s/ John W. Wise _________________

JUDGES

SGF/sg 113 Stark County, Case No. 2010CA00213 9

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : : D. M. : : JUDGMENT ENTRY JUVENILE DELINQUENT : : : : CASE NO. 2010CA00213

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, Juvenile Division is

affirmed. Costs to appellant.

s/ Sheila G. Farmer_ _____________