[Cite as In re J.A.J., 2011-Ohio-4828.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96506
IN RE: J.A.J.
A Minor Child
JUDGMENT: REVERSED
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL-10101726
BEFORE: Celebrezze, J., Blackmon, P.J., and Jones, J.
RELEASED AND JOURNALIZED: September 22, 2011 ATTORNEY FOR APPELLANT Joseph V. Pagano P.O. Box 16869 Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE STATE OF OHIO
William D. Mason Cuyahoga County Prosecutor BY: John Wojton Assistant Prosecuting Attorney 8111 Quincy Avenue Room 341 Cleveland, Ohio 44104
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, J.A.J., 1 appeals from the juvenile court’s
determination of delinquency for vandalism that occurred at the Hilton
Elementary School (“Hilton”) in Brecksville, Ohio. After a thorough review
of the record and law, we reverse the juvenile court’s ruling.
{¶ 2} Several Brecksville teens were involved in the vandalism of
Hilton during the holiday break in December 2009. On three separate days,
a group of male teens damaged property at the school. Damaged items
included benches, bird houses, signs, gutters, fences, a trellis, and graffiti on
The juveniles are referred to herein by their initials or title in accordance 1
with this court’s established policy regarding non-disclosure of identities in juvenile cases. various buildings and signs on and around the school. On the school’s main
sign was spray painted “[J.A.J.] was here son.”
{¶ 3} Principal David Martin was alerted to the damage on December
22, 2009 by a custodian who had discovered it and called the police.
Principal Martin testified that he arrived at the school that day and found
several broken benches, which had been donated by the parents of various
graduating classes; destroyed bird houses in the natural area used for
instruction; and offensive graffiti on the school, the school’s main sign, and a
utility shed. Detective Hetrick of the Brecksville Police Department
investigated the damage and called appellant because his name was written
on the school sign. Appellant informed Det. Hetrick that he thought K.S.
and several other boys had caused the damage. Det. Hetrick contacted these
boys, who eventually admitted to being the perpetrators. However, they
claimed that appellant had participated in the destruction of at least one
bench and one bird house.
{¶ 4} Co-delinquent K.S. testified that appellant destroyed at least one
bench and several bird houses on the first day the boys were at the school
during winter break. Co-delinquent R.V. testified that appellant was there
the second day and destroyed benches with K.S. K.S. also admitted spray
painting appellant’s name on a sign in an attempt to get him in trouble. {¶ 5} The boys differed on the date they witnessed appellant damage
property at Hilton. K.S. testified it was on December 21, while R.V. testified
it was the day after. The trial court found the testimony of R.V. to be
credible and established that appellant participated in the destruction of
benches at the school. The court then found appellant delinquent, imposed
$511 in restitution, and ordered him to pay court costs.
{¶ 6} Appellant timely appealed assigning two errors:
{¶ 7} I. “The trial court erred by denying appellant’s Crim.R. 29
motion because the state presented insufficient evidence to establish the
charges.”
{¶ 8} II. “The trial court’s delinquency findings were against the
manifest weight of the evidence.”
Law and Analysis
Sufficiency
{¶ 9} Appellant first argues that the trial court erred by denying his
Crim.R. 29 motion because the state presented insufficient evidence to
establish the charges.
{¶ 10} Motions for judgments of acquittal are governed by Crim.R. 29(A),
which states that a trial court “shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such
offense or offenses.”
{¶ 11} A challenge to the sufficiency of the evidence requires a court to
determine whether the state has met its burden of production at trial. State
v. Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52, 678 N.E.2d 541. In
reviewing for sufficiency, courts are to assess if the evidence against a
defendant would support a conviction. Id. 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. Jenks (1991), 61 Ohio St.3d 259,
574 N.E.2d 492, paragraph two of the syllabus.
{¶ 12} Appellant was found delinquent of vandalism, a violation of R.C.
2909.05 (B)(1)(b). This statute provides that “[n]o person shall knowingly
cause physical harm to property that is owned or possessed by another, when
* * * [r]egardless of the value of the property or the amount of damage done,
the property or its equivalent is necessary in order for its owner or possessor
to engage in the owner’s or possessor’s profession, business, trade, or
occupation.”2
This provision applies to governmental property. State v. Dunfee, 177 Ohio App.3d 239, 2
2008-Ohio-3615, 894 N.E.2d 359, ¶30-36. {¶ 13} Appellant argues that there was insufficient evidence adduced at
trial demonstrating that the items he allegedly destroyed were necessary for
the education of grade school children at Hilton. K.S. testified that appellant
destroyed bird houses and benches. R.V. testified that appellant destroyed
benches.
{¶ 14} This court has recently reversed a conviction based on R.C.
2909.05(B)(1)(b) where the state did not present sufficient evidence that a
broken window prevented a neighborhood community center from operating.
State v. Sullivan, Cuyahoga App. No. 94269, 2010-Ohio-5357, ¶15.
{¶ 15} Principal Martin testified that the bird houses were a necessary
part of an outdoor classroom used to instruct children, but he elaborated
further. He termed the area an “outdoor learning lab” where “teachers take
children out all times of the year. Our parents do habitat hikes during
recess, and they go out and explore different aspects of the habitats. It’s like
a miniature nature preserve.” However, Principal Martin testified it was the
offensive graffiti that prevented the outdoor area from being used. There is
no evidence that appellant engaged in any spray painting at the school. The
testimony indicated that the graffiti occurred on the final day of vandalism
when appellant was not present.
{¶ 16} In Sullivan, a case involving the destruction of a window of a
neighborhood community facility, this court found, “there was no evidence presented that the window was necessary for the center to conduct business.
In fact, the evidence showed that the broken window had no effect on the
center’s ability to conduct business. A board was installed over the window
to secure it until the glass was replaced two weeks later. There was no
evidence that the center had to remain closed during this two week period.”
Id. at ¶13.
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[Cite as In re J.A.J., 2011-Ohio-4828.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96506
IN RE: J.A.J.
A Minor Child
JUDGMENT: REVERSED
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL-10101726
BEFORE: Celebrezze, J., Blackmon, P.J., and Jones, J.
RELEASED AND JOURNALIZED: September 22, 2011 ATTORNEY FOR APPELLANT Joseph V. Pagano P.O. Box 16869 Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE STATE OF OHIO
William D. Mason Cuyahoga County Prosecutor BY: John Wojton Assistant Prosecuting Attorney 8111 Quincy Avenue Room 341 Cleveland, Ohio 44104
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, J.A.J., 1 appeals from the juvenile court’s
determination of delinquency for vandalism that occurred at the Hilton
Elementary School (“Hilton”) in Brecksville, Ohio. After a thorough review
of the record and law, we reverse the juvenile court’s ruling.
{¶ 2} Several Brecksville teens were involved in the vandalism of
Hilton during the holiday break in December 2009. On three separate days,
a group of male teens damaged property at the school. Damaged items
included benches, bird houses, signs, gutters, fences, a trellis, and graffiti on
The juveniles are referred to herein by their initials or title in accordance 1
with this court’s established policy regarding non-disclosure of identities in juvenile cases. various buildings and signs on and around the school. On the school’s main
sign was spray painted “[J.A.J.] was here son.”
{¶ 3} Principal David Martin was alerted to the damage on December
22, 2009 by a custodian who had discovered it and called the police.
Principal Martin testified that he arrived at the school that day and found
several broken benches, which had been donated by the parents of various
graduating classes; destroyed bird houses in the natural area used for
instruction; and offensive graffiti on the school, the school’s main sign, and a
utility shed. Detective Hetrick of the Brecksville Police Department
investigated the damage and called appellant because his name was written
on the school sign. Appellant informed Det. Hetrick that he thought K.S.
and several other boys had caused the damage. Det. Hetrick contacted these
boys, who eventually admitted to being the perpetrators. However, they
claimed that appellant had participated in the destruction of at least one
bench and one bird house.
{¶ 4} Co-delinquent K.S. testified that appellant destroyed at least one
bench and several bird houses on the first day the boys were at the school
during winter break. Co-delinquent R.V. testified that appellant was there
the second day and destroyed benches with K.S. K.S. also admitted spray
painting appellant’s name on a sign in an attempt to get him in trouble. {¶ 5} The boys differed on the date they witnessed appellant damage
property at Hilton. K.S. testified it was on December 21, while R.V. testified
it was the day after. The trial court found the testimony of R.V. to be
credible and established that appellant participated in the destruction of
benches at the school. The court then found appellant delinquent, imposed
$511 in restitution, and ordered him to pay court costs.
{¶ 6} Appellant timely appealed assigning two errors:
{¶ 7} I. “The trial court erred by denying appellant’s Crim.R. 29
motion because the state presented insufficient evidence to establish the
charges.”
{¶ 8} II. “The trial court’s delinquency findings were against the
manifest weight of the evidence.”
Law and Analysis
Sufficiency
{¶ 9} Appellant first argues that the trial court erred by denying his
Crim.R. 29 motion because the state presented insufficient evidence to
establish the charges.
{¶ 10} Motions for judgments of acquittal are governed by Crim.R. 29(A),
which states that a trial court “shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such
offense or offenses.”
{¶ 11} A challenge to the sufficiency of the evidence requires a court to
determine whether the state has met its burden of production at trial. State
v. Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52, 678 N.E.2d 541. In
reviewing for sufficiency, courts are to assess if the evidence against a
defendant would support a conviction. Id. 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. Jenks (1991), 61 Ohio St.3d 259,
574 N.E.2d 492, paragraph two of the syllabus.
{¶ 12} Appellant was found delinquent of vandalism, a violation of R.C.
2909.05 (B)(1)(b). This statute provides that “[n]o person shall knowingly
cause physical harm to property that is owned or possessed by another, when
* * * [r]egardless of the value of the property or the amount of damage done,
the property or its equivalent is necessary in order for its owner or possessor
to engage in the owner’s or possessor’s profession, business, trade, or
occupation.”2
This provision applies to governmental property. State v. Dunfee, 177 Ohio App.3d 239, 2
2008-Ohio-3615, 894 N.E.2d 359, ¶30-36. {¶ 13} Appellant argues that there was insufficient evidence adduced at
trial demonstrating that the items he allegedly destroyed were necessary for
the education of grade school children at Hilton. K.S. testified that appellant
destroyed bird houses and benches. R.V. testified that appellant destroyed
benches.
{¶ 14} This court has recently reversed a conviction based on R.C.
2909.05(B)(1)(b) where the state did not present sufficient evidence that a
broken window prevented a neighborhood community center from operating.
State v. Sullivan, Cuyahoga App. No. 94269, 2010-Ohio-5357, ¶15.
{¶ 15} Principal Martin testified that the bird houses were a necessary
part of an outdoor classroom used to instruct children, but he elaborated
further. He termed the area an “outdoor learning lab” where “teachers take
children out all times of the year. Our parents do habitat hikes during
recess, and they go out and explore different aspects of the habitats. It’s like
a miniature nature preserve.” However, Principal Martin testified it was the
offensive graffiti that prevented the outdoor area from being used. There is
no evidence that appellant engaged in any spray painting at the school. The
testimony indicated that the graffiti occurred on the final day of vandalism
when appellant was not present.
{¶ 16} In Sullivan, a case involving the destruction of a window of a
neighborhood community facility, this court found, “there was no evidence presented that the window was necessary for the center to conduct business.
In fact, the evidence showed that the broken window had no effect on the
center’s ability to conduct business. A board was installed over the window
to secure it until the glass was replaced two weeks later. There was no
evidence that the center had to remain closed during this two week period.”
Id. at ¶13.
{¶ 17} Similar to Sullivan, the bird houses appellant allegedly destroyed
were not necessary for the use of the outdoor learning lab. Although
Principal Martin testified that the bird houses were necessary, he failed to
state how they were necessary for the operation of the outdoor learning lab.
A bald statement that a few birdhouses were necessary for the operation of
the lab, a statement going to an essential element of a charged crime, does
not constitute sufficient evidence of proof beyond a reasonable doubt that the
birdhouses were necessary in order for Hilton to engage in the education of its
students. Hilton students could still use the lab without a few birdhouses
and engage in outdoor education and learning.
{¶ 18} In State v. Johnson, Cuyahoga App. No. 90450, 2008-Ohio-5869,
¶27, this court affirmed a conviction for vandalism under the instant
subsection finding “[t]he evidence clearly demonstrated that the property, the
cement floor of the Second District jail owned by the City of Cleveland, was
affected by flooding * * * and was closed for nearly two hours to incoming prisoners. The booking and jailing of incoming prisoners is most certainly a
necessary element of jail operation.”
{¶ 19} In State v. Dunfee, 177 Ohio App.3d 239, 2008-Ohio-3615, this
court upheld another conviction based on R.C. 2909.05(B)(1)(b) where the
window of a sheriff’s cruiser was damaged. That court found that the
damaged property, the window of the cruiser, was necessary for the operation
of the cruiser, which itself, was necessary for the sheriff’s department to carry
out its law enforcement function.
{¶ 20} No such evidence of need exists in the record in the present case.
The outdoor learning lab, like the police cruiser in Dunfee, was a necessary
part of the victim’s trade or business. However, it was not the loss of the
bird houses that caused the unavailability of the lab; rather, the record
demonstrates it was the graffiti.
{¶ 21} Further, the destruction of benches did not result in the loss of
property “necessary in order for its owner or possessor to engage in the
owner’s or possessor’s profession, business, trade, or occupation.”
R.C. 2909.05(B)(1)(b). The benches were extra seating areas that provided
students with a desirable, but not necessary, area to study and eat outdoors
in the warmer months of the year.
{¶ 22} The destruction of benches and birdhouses did not cause the
unavailability of the “outdoor learning lab.” It was other damage, perpetrated by the other children, which rendered the natural area unfit for
Hilton students.
{¶ 23} Viewing this evidence in a light most favorable to the state, it is
insufficient to establish that appellant damaged property necessary for the
trade or business of Hilton. There is sufficient evidence that the graffiti
caused the unavailability of the outdoor learning lab; however, there is no
evidence that appellant caused that graffiti. Likewise, even though evidence
exists in the record to demonstrate that the value of the property damaged
was over $500, appellant’s charging complaint of delinquency only tracks the
language of R.C. 2909.05(B)(1)(b). We held in Sullivan that “the fact that
sufficient evidence was presented under (B)(1)(a) does not support Sullivan’s
conviction under (B)(1)(b) because Sullivan was not indicted under (B)(1)(a)
nor was the jury instructed regarding this section.” Id. at ¶16. Therefore,
appellant’s finding of delinquency must be reversed. This holding renders
appellant’s remaining argument regarding manifest weight moot.
Judgment is reversed, appellant’s finding of delinquency is vacated, and
appellant is ordered discharged.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
PATRICIA A. BLACKMON, P.J., CONCURS; LARRY A. JONES, J., DISSENTS (SEE SEPARATE OPINION)
LARRY A. JONES, J., DISSENTING:
Respectfully, I dissent.
{¶ 24} The majority finds that the evidence was insufficient to support a
vandalism adjudication against appellant because (1) there was no evidence
that he participated in spray painting graffiti and (2) the benches and
birdhouses were not necessary for the school to engage in educating its
children.
{¶ 25} 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, 574 N.E.2d
492, paragraph two of the syllabus. A court analyzing the sufficiency of the
evidence does not engage in a weighing of credibility. Gevedon v. Ivey, 172
Ohio App.3d 567, 2007-Ohio-2970, 876 N.E.2d 604, ¶52. {¶ 26} Principal Martin was asked the following question: “Given the
totality of the damage that has been done to the school, the broken benches in
the third grade area, the damage done to the habitat, the spray painting and
graffiti that was done, did any of this have an impact on your ability to
educate these children?” Martin’s answer was “Yes.”
{¶ 27} The testimony from the other juveniles involved in the incident
was that appellant participated in damaging bird houses and benches.
Principal Martin testified that the “totality” of the damage impacted the
school’s ability to educate its children. The majority states that “[a]lthough
Principal Martin testified that the bird houses were necessary, he failed to
state how they were necessary for the operation of the outdoor learning lab.”
That statement casts doubt on Martin’s testimony. The statement,
therefore, would be appropriate under a review for manifest weight of the
evidence, but is not appropriate under a sufficiency of the evidence review.
Whether one believes Martin is not a query for a sufficiency review. His
testimony presented evidence that, if believed, would support a vandalism
adjudication under R.C. 2909.05(B)(1)(b) against appellant.
{¶ 28} Thus, I would uphold appellant’s vandalism adjudication as being
supported by sufficient evidence.