In re J.H.

2022 Ohio 3987

• Court: Ohio Court of Appeals
• Decided: November 9, 2022
• Docket: C-210663 & C-210664
• Status: Published

Opinion

[Cite as In re J.H., 2022-Ohio-3987.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: J.H. : APPEAL NOS. C-210663 C-210664 : TRIAL NOS. 21-1860Z 21-1862Z :

: O P I N I O N.

:

Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Affirmed in Part and Reversed in Part

Date of Judgment Entry on Appeal: November 9, 2022

Joseph T. Deters, Hamilton County Prosecutor, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Jessica R. Moss, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Presiding Judge.

{¶1} An early morning raid discovered defendant-appellant J.H. sleeping in

bed with a gun concealed in his pants. The juvenile court ultimately adjudged him

delinquent for carrying a concealed weapon and having a weapon under disability

(owing to an outstanding warrant). On appeal, J.H. challenges both adjudications

based on alleged evidentiary errors, as well as on sufficiency and manifest weight

grounds. Based on our review of the record, we hold that insufficient evidence

supported the weapons under disability adjudication because the state presented no

evidence that J.H. was a “fugitive from justice.” However, we reject J.H.’s various

challenges to his concealed weapons adjudication. We accordingly reverse the juvenile

court’s judgments in part and affirm them in part.

I.

{¶2} In the morning hours of June 24, 2021, forceful shouts broke the silence

in the bedroom wherein J.H. and a few of his friends lay fast asleep. The teenage boys

awoke to find themselves surrounded by glaring lights and guns held in their faces.

Members of the Cincinnati Police Department’s Fugitive Apprehension Unit had

entered the home on Clephane Avenue and found their way to the bedroom with the

hopes of locating J.H. The officers handcuffed and questioned each of the boys, then

identified J.H. and released the remaining boys. After one of the officers handcuffed

J.H., he noticed a gun in J.H.’s pocket. The officer then reached into J.H.’s pocket and

pulled out a teal-colored gun (along with an accompanying magazine). J.H. was

arrested and taken into custody without incident.

{¶3} Earlier that morning, Cincinnati Police Officer Scott Traufler had

received information that J.H. was at the Clephane house. According to the state, J.H.

2 OHIO FIRST DISTRICT COURT OF APPEALS

had a warrant out for his arrest for aggravated robbery, prompting the aforementioned

search and arrest of J.H. Defense counsel maintains that the warrant was improperly

issued after J.H. failed to show up for a pretrial hearing that did not require his

attendance in the first place.

{¶4} In September 2021, following a trial, a magistrate adjudicated J.H.

delinquent as to carrying a concealed weapon and having weapons under disability.

J.H. filed objections to the magistrate’s decision, and following the objections hearing,

the juvenile court overruled J.H.’s objections and adopted the magistrate’s

adjudication in pertinent part. A dispositional hearing ensued, with the court placing

J.H. on probation, giving him a suspended commitment to the Ohio Department of

Youth Services, ordering him to complete a residential treatment program, and

ordering that the firearm be forfeited. J.H. now appeals, presenting two assignments

of error. We discuss the assignments of error out of order for ease of discussion.

II.

{¶5} In a portion of his second assignment of error, J.H. challenges the

sufficiency of the evidence to support his adjudication for having weapons under

disability, as well as raising a manifest weight of the evidence claim. Specifically, J.H.

insists that the state presented insufficient evidence to establish that he was a fugitive

from justice, an essential element of his weapons under disability offense.

{¶6} In considering a sufficiency challenge, “the question is whether the

evidence presented, when viewed in a light most favorable to the prosecution, would

allow any rational trier of fact to find the essential elements of the crime beyond a

reasonable doubt.” State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-6670, 170 N.E.3d

816, ¶ 15. We review sufficiency determinations de novo but “the court is not to weigh

3 OHIO FIRST DISTRICT COURT OF APPEALS

the evidence.” State v. McDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595,

¶ 12; Dent at ¶ 15 (“[O]ur [sufficiency-of-the-evidence] review is de novo.”). And “in

conducting a sufficiency review, a reviewing court must consider all the evidence

admitted at trial, even improperly admitted evidence.” State v. Kareski, 137 Ohio

St.3d 92, 2013-Ohio-4008, 998 N.E.2d 410, ¶ 24, citing Lockhart v. Nelson, 488 U.S.

33, 34, 109 S.Ct. 285, 102 L.Ed.2d 265 (1998).

{¶7} As relevant to J.H.’s adjudication, pursuant to R.C. 2923.13(A)(1),

“unless relieved from disability under operation of law or legal process, no person shall

knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of

the following apply: (1) the person is a fugitive from justice.” To be a fugitive from

justice, a defendant must have been charged with a prior offense for which he sought

to avoid capture and he must have “fled from justice.” In re J.T., 2014-Ohio-5062, 21

N.E.3d 1136, ¶ 22, 24 (1st Dist.). The burden rests on the state to prove beyond a

reasonable doubt that J.H. qualified as a fugitive from justice. Id. at ¶ 24.

{¶8} While no statutory definition of “fugitive from justice” exists, various

appellate districts, including our own, have endeavored to flesh out the concept, albeit

without uniformity in these approaches. In State v. Cherry, 171 Ohio App.3d 375,

2007-Ohio-2133, 870 N.E.2d 808 (2d Dist.), the Second District, in evaluating a

sufficiency challenge, elaborated on the meaning of “fugitive from justice.” Id. at ¶ 19.

Utilizing the definition of “fugitive from justice” as provided by extradition laws, the

Second District formulated a comparable definition: “the alleged fugitive from justice

must: (1) have incurred guilt – i.e., be guilty of having committed some offense; (2) be

aware that he is being sought by police in connection with that offense; and (3) being

aware that he is being sought by police, take some affirmative action to elude detection

4 OHIO FIRST DISTRICT COURT OF APPEALS

by police.” Id. at ¶ 21. In State v. March, 2019-Ohio-2001, 136 N.E.3d 932, ¶ 24 (8th

Dist.), the Eighth District adopted the exact definition of “fugitive from justice” in R.C.

2923.13(A)(1) as used by the Second District in Cherry. And in an Eleventh District

case, State v. McClelland, 11th Dist. Portage Nos. 1488 and 1491, 1985 Ohio App.

LEXIS 9740, *10 (Dec. 20, 1985), the court weighed the fact that the defendant “knew

there was still an active warrant for his arrest” (as well as the fact that the defendant

had fled the jurisdiction) in determining that the defendant was a fugitive from justice.

Our court, however, rejected the awareness requirement reflected in these decisions

in In re J.T., holding that “the state did not have to prove that [defendant] was aware

that he was wanted for a criminal offense.” In re J.T. at ¶ 22.

{¶9} In line with In re J.T., other districts do not require awareness by the

defendant that the authorities are searching for him. In State v. Hall, 5th Dist. Stark

No. 2004CA00174, 2005-Ohio-167, for example, the Fifth District defined “fugitive

from justice” as a person who “(1) is suspected of or has been convicted of a crime; (2)

is sought by the jurisdiction so that he may be subjected to its criminal system[;] and

(3) has left the jurisdiction and is found within the boundaries of another.” Id. at ¶

14. The Ninth District also subscribes to this approach, framing the inquiry in nearly

identical terms. See State v. Adkins, 80 Ohio App.3d 817, 610 N.E.2d 1143 (9th

Dist.1992).

{¶10} While appellate districts in Ohio disagree as to the awareness

requirement and they do not use the same verbiage to define a “fugitive from justice,”

a consensus exists among the districts that the state must establish that the defendant

took some affirmative step to elude detection by the police. See March at ¶ 25 (“R.C.

2923.13(A)(1) requires the state to show that [defendant] was a fugitive from justice,

5 OHIO FIRST DISTRICT COURT OF APPEALS

which, in turn, requires the state to show that [defendant] ‘took an affirmative action

to elude detection by police.’ ”); Cherry at ¶ 21 (The defendant “must * * * take some

affirmative action to elude detection by the police.”); Adkins at 821 (The state must

prove that the defendant “left the jurisdiction and is found within the boundaries of

another.”); In re J.T., 2014-Ohio-5062, 21 N.E.3d 1136, at ¶ 22, quoting McClelland at

*9 (The state must “present sufficient evidence that [defendant] had ‘fled from

justice.’ ”). And the court in McClelland relied on the fact that “Webster’s New World

Dictionary (1979) defines ‘fugitive’ as one who is fleeing from danger or justice.”

McClelland at *9. This standard thus requires action, rather than a defendant

passively going about his business within the relevant jurisdiction.

{¶11} The facts of extant cases help illustrate the point. For example, the state

may prove: (1) that the defendant left the jurisdiction, Adkins at 821; (2) that he fled

from the police when they showed up to apprehend him, McClelland, 11th Dist.

Portage Nos. 1488 and 1491, 1985 Ohio App. LEXIS 9740, at *11-12; March, 2019-

Ohio-2001, 136 N.E.3d 932, at ¶ 26; or (3) that he took other action to evade arrest

that “endanger[ed] the life of an officer,” such as engaging in a high-speed car chase

or firing a gun at a police officer, McClelland at *11-12; Cherry, 171 Ohio App.3d 375,

2007-Ohio-2133, 870 N.E.2d 808, at ¶ 22; State v. Anderson, 183 Ohio App.3d 522,

2009-Ohio-3900, 917 N.E.2d 843, ¶ 42; State v. Kortz, 2d Dist. Montgomery No.

25041, 2013-Ohio-121, ¶ 5. These examples are certainly not exhaustive, but the state

must show more than “uncooperative” and “reluctant” behavior toward police officers.

March at ¶ 26.

{¶12} In the case before us, the state points to the warrant that precipitated

the arrest of J.H. and his apparent awareness of the existence of the warrant to

6 OHIO FIRST DISTRICT COURT OF APPEALS

establish his “fugitive” status. However, the state failed to identify any evidence

supporting the notion that J.H. “fled from justice,” In re J.T., 2014-Ohio-5062, 21

N.E.3d 1136, at ¶ 22, consistent with the caselaw identified above. In fact, we are

unaware of any case where the simple existence of a warrant justified a conclusion that

the defendant qualified as a fugitive from justice. See March at ¶ 29 (noting that a

“fugitive from justice” “does not require that a defendant take an affirmative action to

elude a court appearance; it requires eluding detection by police, who would be seeking

a defendant on a capias”).

{¶13} Moreover, we find it significant that J.H. made no effort to resist arrest

or flee from the authorities as they sought to apprehend him. In March, even though

the defendant acted “uncooperative” with respect to his apprehension, the court found

insufficient evidence to satisfy the fugitive from justice requirement. Id. at ¶ 26. J.H.

did not leave the jurisdiction and did not flee from (or resist) the police when they

showed up to arrest him. He was found sleeping inside a residence in Hamilton

County and, according to Officer Traufler, police arrested him “without incident.”

Accordingly, we conclude that the state failed to present sufficient evidence to

establish that J.H. was a fugitive from justice, an essential element of his adjudication

for having weapons under disability.

{¶14} We sustain in part J.H.’s second assignment of error, concluding that

his adjudication for having weapons under disability is not supported by sufficient

evidence. This conclusion renders J.H.’s remaining challenges to his weapons under

disability adjudication (on evidentiary and manifest weight grounds, as presented in

his first and second assignments of error) moot.

7 OHIO FIRST DISTRICT COURT OF APPEALS

III.

{¶15} As to J.H.’s adjudication for carrying a concealed weapon, in his first

assignment of error, he alleges that the juvenile court abused its discretion by

admitting state’s evidence that lacked proper authentication. In his second

assignment of error, he challenges the adjudication as based on insufficient evidence

and against the manifest weight of the evidence.

{¶16} With respect to his evidentiary objection, J.H. disputes that the firearm

admitted into evidence was the same gun recovered during his arrest. Authentication

represents a threshold condition for the admissibility of evidence. Pursuant to Evid.R.

901(A), “[t]he requirement of authentication or identification as a condition precedent

to admissibility is satisfied by evidence sufficient to support a finding that the matter

in question is what its proponent claims.” A “witness with knowledge” may offer

“[t]estimony that a matter is what it is claimed to be” as a means of authenticating a

document or object. Evid.R. 901(B)(1). And, “[a]uthentication is ‘a very low threshold,

which is less demanding than the preponderance of the evidence.’ ” State v. Patterson,

1st Dist. Hamilton No. C-170329, 2018-Ohio-3348, ¶ 13, quoting State v. White, 4th

Dist. Scioto No. 03CA2926, 2004-Ohio-6005, ¶ 61. Here, Officer Traufler, with

personal knowledge, identified the weapon in evidence as the firearm he retrieved

from J.H. at the time of his arrest. The firearm was teal and had a serial number on it,

rendering it easily identifiable. Based on this testimony, we find no abuse of discretion

in the juvenile court’s decision to admit the firearm as evidence.

{¶17} Turning to the sufficiency and manifest weight arguments, we provided

the sufficiency standard above and the manifest weight one is equally familiar: in that

respect, we sit as a “thirteenth juror,” State v. Thompkins, 78 Ohio St.3d 380, 387, 678

8 OHIO FIRST DISTRICT COURT OF APPEALS

N.E.2d 541 (1997), and “review the entire record, weigh the evidence and reasonable

inferences, [and] consider the credibility of the witnesses.” State v. Barnthouse, 1st

Dist. Hamilton No. C-180286, 2019-Ohio-5209, ¶ 6. We will only reverse if the trial

court “ ‘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. Sipple, 2021-Ohio-

1319, 170 N.E.3d 1273, ¶ 7 (1st Dist.), quoting State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717 (1st Dist.1983).

{¶18} J.H. first insists that he did not “conceal” the firearm from the officers.

After all, he was fast asleep right before the officers interrupted his slumber. Pursuant

to R.C. 2923.12(A), “[n]o person shall knowingly carry or have, concealed on the

person’s person or concealed ready at hand, any of the following: (1) A deadly weapon

other than a handgun; (2) A handgun other than a dangerous ordnance; or (3) A

dangerous ordnance.” “A gun is ‘concealed’ as that term is used in R.C. 2923.12 if it is

‘so situated not to be discernable by ordinary observation by those near enough to see

it if it were not concealed.’ ” State v. McGee, 1st Dist. Hamilton No. C-150496, 2016-

Ohio-7510, ¶ 26, quoting State v. Davis, 15 Ohio App.3d 64, 64, 472 N.E.2d 751 (1st

Dist.1984). And “[t]he element of concealment in the offense of carrying a concealed

weapon does not require that the weapon be completely hidden from view under all

conceivable circumstances.” McFinley v. Bethesda Oak Hosp., 79 Ohio App.3d 613,

618, 607 N.E.2d 936 (1st Dist.1992).

{¶19} J.H. posits that, because the officers identified the gun in his pocket

before physically retrieving it, it was not concealed. However, it took officers several

minutes of handcuffing the boys, standing near J.H., and questioning the teenagers

before they noticed the firearm. During Officer Traufler’s testimony, when asked

9 OHIO FIRST DISTRICT COURT OF APPEALS

whether he could see the firearm, he replied, “No. It was concealed in his pant pocket.

I mean, you could feel something heavy in there.” Viewing this evidence in the light

most favorable to the state, it cannot be said that no rational trier of fact could have

found all the essential elements of the offense of carrying a concealed weapon beyond

a reasonable doubt. And, the court, as the fact finder, was tasked with assessing the

credibility of the witnesses in this case. See State v. Kidd, 1st Dist. Hamilton No. C-

200356, 2021 Ohio App. LEXIS 3803, *23 (Oct. 29, 2021) (“Generally, credibility is

an issue for the trier of fact to resolve.”). The juvenile court sat in the best position to

observe each witness on the stand and determine their credibility.

{¶20} J.H. also invokes R.C. 2923.12(D)(3), which provides for an affirmative

defense to the charge of carrying a concealed weapon if “[t]he weapon was carried or

kept ready at hand by the actor for any lawful purpose and while in the actor’s own

home.” J.H. was located inside the bedroom of a residence, asleep, at the time of his

arrest. While it seems plausible that J.H. was, in fact, residing in the Clephane home

where he was arrested, he bore the burden to establish this point at trial. “The burden

of going forward with the evidence of an affirmative defense, and the burden of proof,

by a preponderance of the evidence, for an affirmative defense other than self-defense,

defense of another, or defense of the accused’s residence presented as described in

division (B)(1) of this section, is upon the accused.” R.C. 2901.05(A). J.H. offered no

evidence at trial that he actually resided in the Clephane home. And sleeping or

temporarily staying in the home of another does not automatically transform the

residence into a “home” for purposes of R.C. 2923.12(D). See State v. Kelly, 8th Dist.

Cuyahoga No. 81992, 2003-Ohio-4057 (holding that, although defendant spent

considerable time at the home of his girlfriend, this did not entitle defendant to an

10 OHIO FIRST DISTRICT COURT OF APPEALS

instruction on the affirmative defense of being in his own home for purposes of having

a concealed gun).

{¶21} Finally, J.H. claims that there is no competent, credible evidence that

the gun presented at trial was the same one taken from his person during his arrest.

However, as discussed above, Officer Traufler’s testimony sufficed to authenticate the

weapon. Considering the above, the juvenile court did not lose its way in adjudicating

J.H. delinquent as to the carrying a concealed weapon charge, nor did it create a

manifest miscarriage of justice.

{¶22} We overrule J.H.’s first and second assignments of error insofar as they

pertain to his adjudication for carrying a concealed weapon.

* * *

{¶23} In light of the foregoing analysis, we reverse the juvenile court’s

judgment as to J.H.’s adjudication for weapons under disability and discharge him

from further prosecution on that offense in the appeal number C-210663. However,

we affirm J.H.’s adjudication for carrying a concealed weapon in the appeal number

C-210664.

Judgment accordingly.

CROUSE and BOCK, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.