In re D.S.

2010 Ohio 5694

• Court: Ohio Court of Appeals
• Decided: November 18, 2010
• Docket: 10CA893
• Status: Published

Opinion

[Cite as In re D.S., 2010-Ohio-5694.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

IN THE MATTER OF: D.S., : : Adjudicated Delinquent Child. : Case No: 10CA893 : : : DECISION AND : JUDGMENT ENTRY : : File-stamped date: 11-18-10

APPEARANCES:

Timothy Young, Ohio Public Defender, and Amanda J. Powell, Assistant Ohio Public Defender, Columbus, Ohio, for Appellant.

Aaron E. Haslam, Adams County Prosecutor, and Barbara Moore-Eiterman, Adams County Assistant Prosecutor, West Union, Ohio, for Appellee.

Kline, J.:

{¶1} D.S., an adjudicated delinquent child, appeals the judgment of the Adams

County Court of Common Pleas, Juvenile Division. D.S. was adjudicated delinquent for

committing an assault upon a teacher. On appeal, D.S. contends that insufficient

evidence supports his delinquency adjudication. Specifically, D.S. argues that there is

no proof he knowingly attempted to cause physical harm when he pushed a teacher

aside. We disagree. After viewing the evidence in a light most favorable to the state,

we find that any rational trier of fact could have found the essential elements of assault

proven beyond a reasonable doubt. Accordingly, we affirm the judgment of the trial

court.

I. Adams App. No. 10CA893 2

{¶2} On the morning of October 29, 2009, D.S. stood outside of Manchester

High School (hereinafter “Manchester”) while he waited for a school bus that would

have taken him to an alternative high school. Manchester teachers David Knauff

(hereinafter “Knauff”) and Mr. Nelson (hereinafter “Nelson”) were on duty that morning.

Although D.S. had permission to enter Manchester only to use the bathroom, he had

apparently entered the building several times in the days before October 29. For that

reason, Nelson warned Knauff that he “might have some trouble with [D.S.] again trying

to come into the building [and] to keep an eye out.” March 17, 2010 Transcript at 8.

{¶3} Wanting to talk to the principal that morning, D.S. once again entered

Manchester. Nelson confronted D.S. and told him that he did not have permission to be

in the building, but D.S. tried to “proceed on through” Nelson and into the principal’s

office. March 17, 2010 Transcript at 9. At that point, Knauff confronted D.S. and told

D.S. that he had to leave the building. D.S. responded by moving towards Knauff and,

according to Knauff, making contact with Knauff’s chest. (D.S. denied “chest butting”

Knauff.) D.S. then backed away, and Knauff proceeded to escort D.S. out of the

building while D.S. shouted profanities.

{¶4} A few minutes later, D.S. once again entered Manchester. According to

Knauff, D.S. “came in through the entrances again, and he was coming pretty much at a

rapid pace. [Knauff] turned to meet him, and [D.S.] grabbed [Knauff] and pushed [him]

aside and continued on.” March 17, 2010 Transcript at 9.

{¶5} On November 9, 2010, a juvenile complaint charged that D.S. “did

knowingly cause or attempt to cause physical harm to David Knauff, a teacher. Said act

in violation of Section 2152.02.1 [sic] and 2903.13(A) of the Ohio Revised Code and Adams App. No. 10CA893 3

against the peace and Dignity of the State of Ohio.” Because Knauff is a teacher, and

because the alleged assault occurred on Manchester grounds, D.S. was charged with

the juvenile equivalent of a fifth-degree felony. See R.C. 2903.13(C)(2)(e).

{¶6} Knauff was the state’s only witness at D.S.’s adjudicatory hearing. During

the hearing, the state asked Knauff to explain the “grab and push” in greater detail.

{¶7} “Q. Where did he grab you at?

{¶8} “A. Here.

{¶9} “Q. On your side, not your arms?

{¶10} “A. No, well somewhere in my mid region. He didn’t grab me up here, no.

{¶11} “Q. Okay. And he didn’t grab you by the arms, like this, it was more

your…

{¶12} “A. No, to my recollection it was here and like this.

{¶13} “Q. Okay. Did that cause any physical harm to you?

{¶14} “A. No it, it, no I didn’t have any injuries.

{¶15} “Q. As far as not having injuries, did it, I mean did you feel, did you feel the

contact?

{¶16} “A. Oh I felt the contact, yes, but I didn’t need medical attention.

{¶17} “Q. Okay.

{¶18} “A. …from it, no.” March 17, 2010 Transcript at 9-10 (ellipses sic).

{¶19} After Knauff’s testimony, D.S.’s counsel made the following motion: “* * * I

don’t know what the terminology is in Juvenile Court, so pardon me, I mean if I was in

adult Court I would call for a directed verdict of acquittal or judgment of acquittal since

there’s no jury I suppose. I suppose I would ask for a finding of, that he is not a Adams App. No. 10CA893 4

delinquent child in this matter. Due to the fact that one of the elements of assault is that

he, the State must prove beyond a reasonable doubt that the child, knowingly caused or

attempted to cause physical harm. The only evidence, the only testimony I heard was

from the alleged victim, David Knauff, who specifically said he had no physical injuries.

Said he felt the contact, but even in the liberal definitions of physical harm in the

Revised Code, I don’t believe that’s enough to meet the definition of physical harm, just

feeling contact. Contact could be a hug, it could be a pat on the back, it could be a

handshake, any number of things, it’s not physical harm, and there was no testimony

that there was any type of physical harm here your Honor, and so I would, would so

move.” March 17, 2010 Transcript at 13-14.

{¶20} The trial court agreed with D.S.’s trial counsel as to the “chest bump,” but

disagreed as to the grab and push. As the trial court explained, “The Court must apply

common sense, as do juries, and you don’t approach a man, grab a man, try to throw a

man unless you’re attempting to cause some harm to a man. And so, the Court finds

that the essential element of attempting to * * * cause physical harm has been met.”

March 17, 2010 Transcript at 15-16.

{¶21} D.S. testified on his own behalf, and he described the grab and push in

the following manner: “* * * I went back in the building, and then Mr. Knauff and Mr.

Nelson [were] both standing there, and I did not physically try to harm them in any way.

I walked up to Mr. Knauff and I grabbed his shirt, and was going to squeeze in between

the two of them, and I didn’t shove him, I didn’t touch his skin at all. He’s, as soon as I

touched his shirt he jumped back probably ten [feet] and started screaming, call the law. Adams App. No. 10CA893 5

I never tried to harm neither of them, and that’s pretty much what happened.” March

17, 2010 Transcript at 21-22.

{¶22} At the close of evidence, the trial court adjudicated D.S. to be delinquent

on the charge of assault. D.S. appeals and asserts the following assignment of error: I.

“The trial court violated [D.S.’s] right to due process when it adjudicated him delinquent

of assault, a fifth degree felony, absent proof of every element of the charge against him

by sufficient, competent, and credible evidence. The Fifth and Fourteenth Amendments

to the United States Constitution, Article I, Section 16 of the Ohio Constitution, and

Juvenile Rule 29(E)(4).”

II.

{¶23} In his sole assignment of error, D.S. contends that insufficient evidence

supports his delinquency adjudication. According to D.S., there is insufficient proof that

he knowingly attempted to cause physical harm during the confrontation with Knauff.

Rather, D.S. claims that he merely “made incidental contact with Mr. Knauff in an effort

to speak to the principal.” Merit Brief of [D.S.] at 5.

{¶24} “We apply the same standard of review for weight and sufficiency of the

evidence in juvenile delinquency adjudications as [we do] for adult criminal defendants.”

In re T.R., Guernsey App. No. 10CA2, 2010-Ohio-4419, at ¶11, citing In re R.G., Stark

App. No. 2009-CA-00218, 2010-Ohio-138, at ¶10. See, also, In re T.C., Washington

App. No. 09CA10, 2009-Ohio-4325, at ¶36. Therefore, when reviewing a case to

determine if the record contains sufficient evidence to support a delinquency

adjudication, we must “examine the evidence admitted at trial to determine whether

such evidence, if believed, would convince the average mind of the defendant’s guilt Adams App. No. 10CA893 6

beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence

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

the essential elements of the crime proven beyond a reasonable doubt.” State v. Smith,

Pickaway App. No. 06CA7, 2007-Ohio-502, at ¶33, quoting State v. Jenks (1991), 61

Ohio St.3d 259, at paragraph two of the syllabus. See, also, Jackson v. Virginia (1979),

443 U.S. 307, 319.

{¶25} The sufficiency-of-the-evidence test “raises a question of law and does not

allow us to weigh the evidence.” Smith at ¶34, citing State v. Martin (1983), 20 Ohio

App.3d 172, 175. Instead, the sufficiency-of-the-evidence test “‘gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Smith

at ¶34, quoting Jackson at 319. This court will “reserve the issues of the weight given to

the evidence and the credibility of witnesses for the trier of fact.” Smith at ¶34, citing

State v. Thomas (1982), 70 Ohio St.2d 79, 79-80; State v. DeHass (1967), 10 Ohio

St.2d 230, at paragraph one of the syllabus.

{¶26} D.S. was adjudicated delinquent for assault. Under R.C. 2903.13(A), “[n]o

person shall knowingly cause or attempt to cause physical harm to another or to

another’s unborn.” Additionally, “[a] person acts knowingly, regardless of his purpose,

when he is aware that his conduct will probably cause a certain result or will probably be

of a certain nature. A person has knowledge of circumstances when he is aware that

such circumstances probably exist.” R.C. 2901.22(B). And finally, “‘[p]hysical harm to

persons’ means any injury, illness, or other physiological impairment, regardless of its

gravity or duration.” R.C. 2901.01(A)(3). This court has held that, “[w]hen accompanied Adams App. No. 10CA893 7

by the requisite intent, a * * * shove, push or grab * * * may satisfy the physical harm

element of assault.” In re Pollitt (Oct. 10, 2000), Adams App. No. 00 CA 687 (internal

quotations omitted) (omissions sic). Thus, in the present case, we must determine

whether there is sufficient evidence that D.S. knowingly attempted to cause physical

harm during his confrontation with Knauff.

{¶27} To support his assignment of error, D.S. cites In re Mark M. (Feb. 4,

2000), Erie App. Nos. E-99-028 & E-99-046. In Mark M., a teacher confronted three

students involved in a verbal altercation. The teacher asked the adjudicated delinquent

child to walk in the opposite direction, but the adjudicated delinquent child heard one of

the other students make a derogatory comment. As a result, the adjudicated delinquent

child “pushed [the teacher] out of the way and went after the person who uttered the

remark.” Id. A second teacher then arrived on the scene and restrained the

adjudicated delinquent child.

{¶28} A short time later, the adjudicated delinquent child sat in the

superintendent’s office while the first teacher stood by the doorway and the second

teacher used the phone. Suddenly, the adjudicated delinquent child charged into the

first teacher “in what was described as a ‘football’ type drive. The force pushed [the first

teacher] into the hall.” Id. At that point, the second teacher dropped the phone and

tackled the adjudicated delinquent child. Both teachers eventually subdued the

adjudicated delinquent child, and, as a result of these incidents, the adjudicated

delinquent child was charged with two counts of assault.

{¶29} On appeal, the adjudicated delinquent child raised several sufficiency-of-

the-evidence arguments. And in part, the Sixth District Court of Appeals agreed with Adams App. No. 10CA893 8

the adjudicated delinquent child. The court explained that, “[w]ith respect to appellant’s

hallway shove of [the first teacher], the magistrate’s factual findings indicated that this

incident occurred when the teacher attempted to block appellant’s access to another

student. [The first teacher’s] testimony was that when he moved in front of appellant,

appellant pushed him to gain access to the offending speaker. [The first teacher]

claimed no injury from this[,] and the magistrate made no finding that appellant was

aware that this push might cause injury. Therefore, at least with respect to the hallway

push of [the first teacher], the necessary mental element has not been satisfied.” Id.

{¶30} However, the Sixth District Court of Appeals rejected the adjudicated

delinquent child’s argument as to the football-type drive. As the court explained, “The

football stance attack on [the first teacher] in the superintendent’s office is another

matter. The magistrate concluded that [the first teacher] was ‘shaken up’ by this

‘charge[ ].’ Clearly, appellant intended to move [the first teacher] without regard to

whether such a physical encounter would cause harm. Additionally, an individual of

ordinary intelligence would have been aware that such an attack might cause some

physical harm. That it did not cause greater harm is fortunate for all concerned, but it

does not negate the presence of all of the elements of assault on a teacher.” Id.

{¶31} D.S. contends that Mark M. demonstrates the difference between physical

contact with the requisite mental intent and physical contact without the requisite mental

intent. That is, D.S. argues that his case resembles the “hallway shove” in Mark M., not

the “football-type drive.” As such, D.S. claims that he did not have the requisite mental

intent for assault when he pushed Knauff. Adams App. No. 10CA893 9

{¶32} Here, we are mindful that “[k]nowledge, like all kinds of intent, can be

inferred from circumstantial evidence.” State v. Terry, 186 Ohio App.3d 670, 2010-

Ohio-1604, at ¶22, citing State v. Seiber (1990), 56 Ohio St.3d 4, 13-14. And after

viewing the evidence in a light most favorable to the state, we believe that the

circumstantial evidence in the present case differs significantly from the circumstantial

evidence in Mark M. Most importantly, the juvenile in Mark M. did not have a heated

confrontation with the teacher just prior to the hallway shove. Furthermore, as it related

to the hallway shove, there was no evidence that the juvenile in Mark M. had any

animus directed towards the teacher. Instead, the teacher in Mark M. just happened to

be in the juvenile’s way during a spur-of-the-moment encounter. Therefore, we find

Mark M. to be easily distinguishable.

{¶33} In contrast to Mark M., the evidence here supports the reasonable

inference that D.S. had the requisite mental intent for assault. Before D.S. pushed

Knauff, there was a verbal confrontation that included profanities and “very belligerent”

behavior. March 17, 2010 Transcript at 9. Then, D.S. left the building, reentered the

building, walked towards Knauff at a “rapid pace,” and pushed Knauff aside. March 17,

2010 Transcript at 9. Based on these events, one could reasonably infer that D.S.

sought out a physical confrontation with Knauff. And because of the profanity and

belligerent behavior directed towards Knauff, one could reasonably infer that an animus

for Knauff motivated D.S.’s actions. Accordingly, the circumstantial evidence supports

the reasonable inference that D.S. knowingly attempted to cause physical harm by

pushing Knauff aside. This is so even though Knauff did not suffer any actual injuries

as a result of the push. Adams App. No. 10CA893 10

{¶34} Thus, after viewing the evidence in a light most favorable to the state, we

find that any rational trier of fact could have found all the essential elements of assault

proven beyond a reasonable doubt. Accordingly, we overrule D.S.’s assignment of

error and affirm the judgment of the trial court.

JUDGMENT AFFIRMED. Adams App. No. 10CA893 11

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the 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 Adams County Court of Common Pleas, Juvenile Division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

McFarland, P.J. and Abele, J.: Concur in Judgment and Opinion.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.