[Cite as In re S.J., 2013-Ohio-662.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN RE: S.J., JUDGES: Hon. Patricia A. Delaney, P.J. A MINOR CHILD Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J.
Case No. 12CA73
OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Juvenile Division, Case No. 2012-DEL-33
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 21, 2013
APPEARANCES:
For Appellee For Appellant
TERRY D. HITCHMAN JAMES J. MAYER, JR. 3 N. Main Street, Suite 706 PROSECUTING ATTORNEY Mansfield, Ohio 44902 RICHLAND COUNTY, OHIO
BY: JILL M. COCHRAN Assistant Richland County Prosecutor 38 South Park Street, 2nd Floor Mansfield, Ohio 44902 Richland County, Case No. 12CA73 2
Hoffman, J.
{¶1} Plaintiff-appellant the state of Ohio appeals the judgment entered by the
Richland County Court of Common Pleas vacating a prior adjudication of delinquency
and ordering the juvenile into a court diversion program. S.J., a minor child, is the
appellee.
STATEMENT OF THE FACTS AND CASE.
{¶2} On January 17, 2012, Appellee, S.J., a minor child, was charged by the
state of Ohio with one count of rape, in violation of R.C. 2907.02(A)(1)(b) and R.C.
2152.02(F)(1), a felony of the first degree if committed by an adult. It was alleged that
on January 14, 2012, S.J, age thirteen at the time of the offense, did engage in sexual
conduct with B.M., S.J.’s four year old half sister.
{¶3} The case came on for trial on June 20, 2012. Appellant’s mother testified
she was an eyewitness to the event. A Sexual Assault Nurse Examiner (SANE)
testified B.M. had both external and internal bruising in her vaginal area.
{¶4} The trial court found the evidence insufficient on the issue of penetration.
The trial court held Appellant committed sexual battery, in violation of R.C.
2907.03(A)(2). The court found S.J. attempted to engage in sexual conduct with B.M.
knowing her ability to appraise the nature of or control the other person’s own conduct
was substantially impaired because of her young age. The trial court reserved
jurisdiction to vacate the adjudication at any time.
{¶5} The dispositional hearing was held on August 6, 2012. At the hearing, the
trial court vacated its adjudication of delinquency and placed S.J. in the Court Diversion Richland County, Case No. 12CA73 3
Program until age 21. The state of Ohio objected to the disposition, and now appeals,
assigning as error:
{¶6} “I. THE TRIAL COURT’S FINDING THAT APPELLEE WAS DELINQUENT
FOR ATTEMPTED SEXUAL BATTERY RATHER THAN RAPE OR ATTEMPTED
RAPE WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND NOT BASED
ON THE FACTS FOUND BY THE TRIAL COURT IN THE RECORD.
{¶7} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN VACATING THE
FINDING THAT THE APPELLEE WAS A DELINQUENT CHILD AND PLACING THE
APPELLEE IN THE DIVERSION PROGRAM.”
I. & II.
{¶8} Prior to addressing the argument raised by Appellant, we must first
address the jurisdictional issue before this Court. The State appeals the trial court's
August 8, 2012 Judgment Entry vacating the finding of delinquency and placing the
juvenile in a diversion program in lieu of disposition.
{¶9} Ohio Rule of Juvenile Procedure 29(F) states,
{¶10} "(F) Procedure upon determination of the issues
{¶11} "Upon the determination of the issues, the court shall do one of the
following:
{¶12} "(1) If the allegations of the complaint, indictment, or information were not
proven, dismiss the complaint;
{¶13} "(2) If the allegations of the complaint, indictment, or information are
admitted or proven, do any one of the following, unless precluded by statute:
{¶14} "(a) Enter an adjudication and proceed forthwith to disposition; Richland County, Case No. 12CA73 4
{¶15} "(b) Enter an adjudication and continue the matter for disposition for not
more than six months and may make appropriate temporary orders;
{¶16} "(c) Postpone entry of adjudication for not more than six months;
{¶17} "(d) Dismiss the complaint if dismissal is in the best interest of the child
and the community.
{¶18} "(3) Upon request make written findings of fact and conclusions of law
pursuant to Civ. R. 52.
{¶19} "(4) Ascertain whether the child should remain or be placed in shelter care
until the dispositional hearing in an abuse, neglect, or dependency proceeding. In
making a shelter care determination, the court shall make written finding of facts with
respect to reasonable efforts in accordance with the provisions in Juv. R. 27(B)(1) and
to relative placement in accordance with Juv. R. 7(F)(3)."
{¶20} Ohio Criminal Rule 12 provides, in pertinent part,
{¶21} "(F) Ruling on motion
{¶22} "The court may adjudicate a motion based upon briefs, affidavits, the
proffer of testimony and exhibits, a hearing, or other appropriate means.
{¶23} "A motion made pursuant to divisions (C)(1) to (C)(5) of this rule shall be
determined before trial. Any other motion made pursuant to division (C) of this rule shall
be determined before trial whenever possible. Where the court defers ruling on any
motion made by the prosecuting attorney before trial and makes a ruling adverse to the
prosecuting attorney after the commencement of trial, and the ruling is appealed
pursuant to law with the certification required by division (K) of this rule, the court shall
stay the proceedings without discharging the jury or dismissing the charges. Richland County, Case No. 12CA73 5
{¶24} "Where factual issues are involved in determining a motion, the court shall
state its essential findings on the record.***
{¶25} "***
{¶26} "(K) When the state takes an appeal as provided by law from an order
suppressing or excluding evidence, or from an order directing pretrial disclosure of
evidence, the prosecuting attorney shall certify that both of the following apply:
{¶27} "(1) the appeal is not taken for the purpose of delay;
{¶28} "(2) the ruling on the motion or motions has rendered the state's proof with
respect to the pending charge so weak in its entirety that any reasonable possibility of
effective prosecution has been destroyed, or the pretrial disclosure of evidence ordered
by the court will have one of the effects enumerated in Crim. R. 16(D).
{¶29} "The appeal from an order suppressing or excluding evidence shall not be
allowed unless the notice of appeal and the certification by the prosecuting attorney are
filed with the clerk of the trial court within seven days after the date of the entry of the
judgment or order granting the motion. Any appeal taken under this rule shall be
prosecuted diligently.
{¶30} "If the defendant previously has not been released, the defendant shall,
except in capital cases, be released from custody on the defendant's own recognizance
pending appeal when the prosecuting attorney files the notice of appeal and
certification.
{¶31} "This appeal shall take precedence over all other appeals.
{¶32} "If an appeal from an order suppressing or excluding evidence pursuant to
this division results in an affirmance of the trial court, the state shall be barred from Richland County, Case No. 12CA73 6
prosecuting the defendant for the same offense or offenses except upon a showing of
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[Cite as In re S.J., 2013-Ohio-662.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN RE: S.J., JUDGES: Hon. Patricia A. Delaney, P.J. A MINOR CHILD Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J.
Case No. 12CA73
OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Juvenile Division, Case No. 2012-DEL-33
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 21, 2013
APPEARANCES:
For Appellee For Appellant
TERRY D. HITCHMAN JAMES J. MAYER, JR. 3 N. Main Street, Suite 706 PROSECUTING ATTORNEY Mansfield, Ohio 44902 RICHLAND COUNTY, OHIO
BY: JILL M. COCHRAN Assistant Richland County Prosecutor 38 South Park Street, 2nd Floor Mansfield, Ohio 44902 Richland County, Case No. 12CA73 2
Hoffman, J.
{¶1} Plaintiff-appellant the state of Ohio appeals the judgment entered by the
Richland County Court of Common Pleas vacating a prior adjudication of delinquency
and ordering the juvenile into a court diversion program. S.J., a minor child, is the
appellee.
STATEMENT OF THE FACTS AND CASE.
{¶2} On January 17, 2012, Appellee, S.J., a minor child, was charged by the
state of Ohio with one count of rape, in violation of R.C. 2907.02(A)(1)(b) and R.C.
2152.02(F)(1), a felony of the first degree if committed by an adult. It was alleged that
on January 14, 2012, S.J, age thirteen at the time of the offense, did engage in sexual
conduct with B.M., S.J.’s four year old half sister.
{¶3} The case came on for trial on June 20, 2012. Appellant’s mother testified
she was an eyewitness to the event. A Sexual Assault Nurse Examiner (SANE)
testified B.M. had both external and internal bruising in her vaginal area.
{¶4} The trial court found the evidence insufficient on the issue of penetration.
The trial court held Appellant committed sexual battery, in violation of R.C.
2907.03(A)(2). The court found S.J. attempted to engage in sexual conduct with B.M.
knowing her ability to appraise the nature of or control the other person’s own conduct
was substantially impaired because of her young age. The trial court reserved
jurisdiction to vacate the adjudication at any time.
{¶5} The dispositional hearing was held on August 6, 2012. At the hearing, the
trial court vacated its adjudication of delinquency and placed S.J. in the Court Diversion Richland County, Case No. 12CA73 3
Program until age 21. The state of Ohio objected to the disposition, and now appeals,
assigning as error:
{¶6} “I. THE TRIAL COURT’S FINDING THAT APPELLEE WAS DELINQUENT
FOR ATTEMPTED SEXUAL BATTERY RATHER THAN RAPE OR ATTEMPTED
RAPE WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND NOT BASED
ON THE FACTS FOUND BY THE TRIAL COURT IN THE RECORD.
{¶7} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN VACATING THE
FINDING THAT THE APPELLEE WAS A DELINQUENT CHILD AND PLACING THE
APPELLEE IN THE DIVERSION PROGRAM.”
I. & II.
{¶8} Prior to addressing the argument raised by Appellant, we must first
address the jurisdictional issue before this Court. The State appeals the trial court's
August 8, 2012 Judgment Entry vacating the finding of delinquency and placing the
juvenile in a diversion program in lieu of disposition.
{¶9} Ohio Rule of Juvenile Procedure 29(F) states,
{¶10} "(F) Procedure upon determination of the issues
{¶11} "Upon the determination of the issues, the court shall do one of the
following:
{¶12} "(1) If the allegations of the complaint, indictment, or information were not
proven, dismiss the complaint;
{¶13} "(2) If the allegations of the complaint, indictment, or information are
admitted or proven, do any one of the following, unless precluded by statute:
{¶14} "(a) Enter an adjudication and proceed forthwith to disposition; Richland County, Case No. 12CA73 4
{¶15} "(b) Enter an adjudication and continue the matter for disposition for not
more than six months and may make appropriate temporary orders;
{¶16} "(c) Postpone entry of adjudication for not more than six months;
{¶17} "(d) Dismiss the complaint if dismissal is in the best interest of the child
and the community.
{¶18} "(3) Upon request make written findings of fact and conclusions of law
pursuant to Civ. R. 52.
{¶19} "(4) Ascertain whether the child should remain or be placed in shelter care
until the dispositional hearing in an abuse, neglect, or dependency proceeding. In
making a shelter care determination, the court shall make written finding of facts with
respect to reasonable efforts in accordance with the provisions in Juv. R. 27(B)(1) and
to relative placement in accordance with Juv. R. 7(F)(3)."
{¶20} Ohio Criminal Rule 12 provides, in pertinent part,
{¶21} "(F) Ruling on motion
{¶22} "The court may adjudicate a motion based upon briefs, affidavits, the
proffer of testimony and exhibits, a hearing, or other appropriate means.
{¶23} "A motion made pursuant to divisions (C)(1) to (C)(5) of this rule shall be
determined before trial. Any other motion made pursuant to division (C) of this rule shall
be determined before trial whenever possible. Where the court defers ruling on any
motion made by the prosecuting attorney before trial and makes a ruling adverse to the
prosecuting attorney after the commencement of trial, and the ruling is appealed
pursuant to law with the certification required by division (K) of this rule, the court shall
stay the proceedings without discharging the jury or dismissing the charges. Richland County, Case No. 12CA73 5
{¶24} "Where factual issues are involved in determining a motion, the court shall
state its essential findings on the record.***
{¶25} "***
{¶26} "(K) When the state takes an appeal as provided by law from an order
suppressing or excluding evidence, or from an order directing pretrial disclosure of
evidence, the prosecuting attorney shall certify that both of the following apply:
{¶27} "(1) the appeal is not taken for the purpose of delay;
{¶28} "(2) the ruling on the motion or motions has rendered the state's proof with
respect to the pending charge so weak in its entirety that any reasonable possibility of
effective prosecution has been destroyed, or the pretrial disclosure of evidence ordered
by the court will have one of the effects enumerated in Crim. R. 16(D).
{¶29} "The appeal from an order suppressing or excluding evidence shall not be
allowed unless the notice of appeal and the certification by the prosecuting attorney are
filed with the clerk of the trial court within seven days after the date of the entry of the
judgment or order granting the motion. Any appeal taken under this rule shall be
prosecuted diligently.
{¶30} "If the defendant previously has not been released, the defendant shall,
except in capital cases, be released from custody on the defendant's own recognizance
pending appeal when the prosecuting attorney files the notice of appeal and
certification.
{¶31} "This appeal shall take precedence over all other appeals.
{¶32} "If an appeal from an order suppressing or excluding evidence pursuant to
this division results in an affirmance of the trial court, the state shall be barred from Richland County, Case No. 12CA73 6
prosecuting the defendant for the same offense or offenses except upon a showing of
newly discovered evidence that the state could not, with reasonable diligence, have
discovered before filing of the notice of appeal."
{¶33} Appellate Rule 5 states,
{¶34} "(C) Motion by prosecution for leave to appeal
{¶35} "When leave is sought by the prosecution from the court of appeals to
appeal a judgment or order of the trial court, a motion for leave to appeal shall be filed
with the court of appeals within thirty days from the entry of the judgment and order
sought to be appealed and shall set forth the errors that the movant claims occurred in
the proceedings of the trial court. The motion shall be accompanied by affidavits, or by
the parts of the record upon which the movant relies, to show the probability that the
errors claimed did in fact occur, and by a brief or memorandum of law in support of the
movant's claims. Concurrently with the filing of the motion, the movant shall file with the
clerk of the trial court a notice of appeal in the form prescribed by App. R. 3 and file a
copy of the notice of appeal in the court of appeals. The movant also shall furnish a
copy of the motion and a copy of the notice of appeal to the clerk of the court of appeals
who shall serve the notice of appeal and a copy of the motion for leave to appeal upon
the attorney for the defendant who, within thirty days from the filing of the motion, may
file affidavits, parts of the record, and brief or memorandum of law to refute the claims of
the movant."
{¶36} Upon review of the record herein, the State did not file leave to appeal in
this matter. The State does not cite authority granting the State the right to appeal the
trial court's vacation of the finding of delinquency herein and the resultant direction to Richland County, Case No. 12CA73 7
the diversionary program. The trial court’s decision to find Appellee not guilty of rape or
attempted rape after conducting the trial is not appealable, as a matter of right, by the
State. Further, standing to challenge the decision of the trial court ordering Appellee
into the court diversion program lies with Appellee, the juvenile, not the State.
{¶37} Both of Appellant’s assignments of error are overruled.
{¶38} The judgment of the Richland County Court of Common Pleas, Juvenile
Division, is affirmed.
By: Hoffman, J.
Delaney, P.J. and
Farmer, J. concur
s/William B. Hoffman__________________ HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER Richland County, Case No. 12CA73 8
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN RE: S.J., : : A MINOR CHILD : : : : : JUDGMENT ENTRY : : : Case No. 12CA73
For the reasons stated in our accompanying Opinion, the judgment of the trial
court is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER