In re G.L.L. ( 2015 )

[Cite as In re G.L.L., 2015-Ohio-3539.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
IN THE MATTER OF: : OPINION
G.L.L., DELINQUENT CHILD
:
CASE NOS. 2014-G-3189
: and 2014-G-3190
Appeals from the Geauga County Court of Common Pleas, Juvenile Division, Case
Nos. 13 JD 000421 and 13 JD 000467.
Judgment: Affirmed.
James R. Flaiz, Geauga County Prosecutor, and Katherine A. Jacob, Assistant
Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For
Appellee – State of Ohio).
Sheryl A. Trzaska, Assistant State Public Defender, 250 East Broad Street, #1400,
Columbus, OH 43215-9308 (For Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, G.L.L., appeals from the judgment entries of the Geauga
County Court of Common Pleas, Juvenile Division, adjudicating him delinquent on five
counts arising from two complaints, and ordering him to serve five consecutive 90-day
terms of detention. G.L.L. contends the trial court was without jurisdiction to proceed on
one complaint; that the adjudications are unsupported by sufficient evidence; that the
trial court denied him the constitutional right to confront witnesses and present his
defense; and, that he cannot be sentenced to five consecutive terms of detention.
Finding no error, we affirm.
{¶2} On or about August 9, 2013, G.L.L. was paroled from the Department of
Youth Services (“DYS”), and placed at the Tri-State Youth Academy. He was subject to
a Unified Case Plan. On October 8, 2013, G.L.L. met with his case worker from
Geauga County Job and Family Services (“GCJFS”), Jodi Miller. He reported to her
alleged instances of harassment by two Tri-State employees, Mr. Wolf and Mr.
Simmons. A Tri-State employee was present in the room during part of the meeting.
Based on G.L.L.’s report, Ms. Miller commenced an investigation, which remained
ongoing at the time of hearing.
{¶3} On October 10, 2013, G.L.L. was part of a work detail sent to mow grass.
Evidently he was last in line. At hearing, Mr. Daniel Gentile, from Tri-State, testified he
tapped G.L.L. on the back, to get him to return to the group, and, in response, G.L.L.
punched him in the face. G.L.L. testified Mr. Gentile pushed him vigorously; grabbed
him; and, they both accidentally fell to the ground. G.L.L. claimed Mr. Gentile and
another Tri-State employee, Mr. Stephen Cline, restrained him for a lengthy period.
{¶4} On October 11, 2013, G.L.L. slashed his arms, and told Tri-State staff he
had swallowed glass and tacks (he had not). He hoped to be transferred out of Tri-
State. Mr. Gentile and Mr. Cline transported G.L.L. to the hospital, Mr. Cline driving.
They testified that on the way, G.L.L. grabbed Mr. Cline’s hoodie, and pulled it, causing
the latter to drive off the road, and get a red mark on his neck. G.L.L. testified Mr. Cline
simply drove off into a field, then pulled and ripped his own hoodie, and that Mr. Gentile
hit him.
2
{¶5} On October 16, 2013, G.L.L.’s parole officer filed a complaint in three
counts in the trial court, that being Case No. 13JD000421. Count 1 alleged G.L.L. had
violated DYS Parole Rule 1 by punching Mr. Gentile in the face. Count 2 alleged G.L.L.
had violated DYS Parole Rule 6 by cutting his arm and claiming to have ingested glass
and tacks. Count 3 alleged violations of both Parole Rules 1 and 6 by grabbing Mr.
Cline’s hoodie and causing a car accident. On October 17, 2013, G.L.L. entered a plea
of not true to all counts.
{¶6} On November 21, 2013, State Trooper Gary Lewis, who had investigated
the automobile accident on October 11, 2013, filed a complaint in two counts against
G.L.L. in the Knox County Court of Common Pleas, Juvenile Division. Count 1 alleged
G.L.L. had committed what would be assault, a misdemeanor of the first degree, if
committed by an adult, in violation of R.C. 2903.13(A), by grabbing Mr. Cline’s hoodie
and pulling on it. Count 2 alleged G.L.L. had committed obstruction and interference
affecting view and control of driver, a minor misdemeanor if committed by an adult, in
violation of R.C. 4511.70(B), by grabbing the hoodie.
{¶7} On November 22, 2013, The Knox County court transferred the matter to
Geauga County, which accepted it as Case No. 13JD000467. On December 12, 2013,
G.L.L. entered a plea of not true to both counts.
{¶8} An adjudicatory hearing was held on January 31, 2013. Testifying for the
state were G.L.L’s parole officer, Hasani Ngozi; Mr. Gentile; Mr. Cline; Brian Bowen,
another Tri-State employee; and Trooper Lewis. G.L.L. testified on his own behalf, as
did Ms. Miller, his GCJFS case worker. On cross examination, defense counsel
attempted to question Mr. Ngozi about G.L.L.’s allegations leading to Ms. Miller’s
3
investigation. The trial court allowed Mr. Ngozi to state he was aware of the allegations,
but not what he had heard. The trial court did not allow Mr. Gentile to testify about the
allegations on cross examination. The trial court did allow Mr. Cline to testify he was
aware of the allegations, but sustained objections as to what he had heard. Similarly,
Ms. Miller was allowed to testify she was investigating, but not what she had learned.
{¶9} At the end of the hearing, the trial court concluded the state had proved its
case on all of the counts beyond a reasonable doubt. Dispositional hearing went
forward February 3, 2013, with the trial court ordering G.L.L. to serve five consecutive
terms of 90 days detention on the counts, with 109 days credit for detention served.
Appeals were timely noticed, and the cases consolidated.
{¶10} G.L.L. assigns three errors. The first assignment of error provides:
{¶11} “The juvenile court erred when it adjudicated G.L.L. of delinquency, in
violation of R.C. 2152.02(F)(2), absent sufficient evidence that G.L.L. violated an order
of the court made under Chapter 2151 or 2151 of the Revised Code. Fifth and
Fourteenth Amendments to the U.S. Constitution; Section 10, Article 1, Ohio
Constitution.”
{¶12} G.L.L. first asserts that the order reflecting the conditions of supervised
release to DYS parole does not constitute an “order” of the court under R.C.
2152.02(F)(2). He specifically argues the complaint in Case No. 13JD000421 alleged
he was delinquent for violating DYS parole rules. R.C. 2152.02(F)(2) provides a
delinquent child includes: “Any child who violates any lawful order of the court made
under this chapter or under Chapter 2151. of the Revised Code * * *[.]” (Emphasis
added.)
4
{¶13} R.C. 2152.22(A) provides, in pertinent part: “When a child is committed to
the legal custody of the department of youth services under this chapter, the juvenile
court relinquishes control with respect to the child so committed, except as provided in
divisions * * * (H) of this section * * *[.]” (Emphasis added.)
{¶14} R.C. 2152.22(H) provides, in pertinent part:
{¶15} (H) When a child is committed to the legal custody of the
department of youth services, the court retains jurisdiction * * * to
perform the functions specified in section 5139.52 of the Revised
Code with respect to violations of the conditions of supervised
release granted by the release authority and to the revocation of
supervised release granted by the release authority.
{¶16} R.C. 5139.52(F) provides, in pertinent part:
{¶17} If a child who is on supervised release is arrested under an order of
apprehension, under a warrant, or without a warrant * * *, and if a
motion to revoke the child’s supervised release is filed, the juvenile
court of the county in which the child is placed promptly shall
schedule a time for a hearing on whether the child violated any of
the terms and conditions of the supervised release. If a child is
released on supervised release and the juvenile court of the county
in which the child is placed otherwise has reason to believe that the
child has not complied with the terms and conditions of the
supervised release, the court of the county in which the child is
placed, in its discretion, may schedule a time for a hearing on
5
whether the child violated any of the terms and conditions of the
supervised release. * * * If the court of the county in which the child
is placed on supervised release conducts a hearing and determines
at the hearing that the child violated one or more of the terms and
conditions of the child’s supervised release, the court, if it
determines that the violation was a serious violation, may revoke
the child’s supervised release and order the child to be returned to
the department of youth services for institutionalization or, in any
case, may make any other disposition of the child authorized by law
that the court considers proper. (Emphasis added.)
{¶18} In sum, G.L.L. argues he cannot be adjudicated delinquent except for
violating an order of the juvenile court. R.C. 2152.02(F)(2). He notes he was under
DYS supervised release or parole at the time of the incidents alleged, and cites to R.C.
2152.22(A) for the proposition that the trial court had relinquished all control over him to
DYS except for matters relating to violation of and revocation of supervised release.
R.C. 2152.22(H). He observes that R.C. 5139.52(F), controlling procedures for juvenile
parole violations, speaks to filing of a motion to revoke supervised release – not to the
filing of a new complaint for adjudicating delinquency. Consequently, he argues his
parole violations were not violations of an order of the juvenile court, but only violations
of his supervised release, and that he could not be held delinquent through the filing of
a new complaint, but could only have his supervised release revoked by motion. We do
not agree.
6
{¶19} Preliminarily, we do not find this issue actually challenges the sufficiency
of the evidence under which G.L.L. was adjudicated delinquent. It is in the nature of a
challenge to the jurisdiction of the trial court in Case No. 13JD000421. The issue of a
court’s jurisdiction is a question of law reviewed de novo. In the Matter of D.P.J. and
P.R.J., 4th Dist. Scioto No. 13CA3532, 2013-Ohio-4469, ¶11.
{¶20} Next, we agree with the state this issue was waived. Juv.R. 22(D),
captioned “Prehearing motions,” provides, in pertinent part:
{¶21} Any defense, objection or request which is capable of determination
without hearing on the allegations of the complaint may be raised
before the adjudicatory hearing by motion. The following must be
heard before the adjudicatory hearing, though not necessarily on a
separate date:
{¶22} (1) Defenses or objections based on defects in the institution of the
proceeding[.] (Emphasis added.)
{¶23} Juv.R. 22(E), captioned “Motion time,” provides, in pertinent part: “Except
for motions filed under division (D)(5) of this rule, all prehearing motions shall be filed by
the later of: “(1) seven days prior to the hearing * * *[.]”
{¶24} No motion to dismiss the complaint in Case No. 13JD000421 was ever
filed in the trial court. Defense counsel only raised the issue by oral motion at the
commencement of the dispositional hearing.
{¶25} Assuming, arguendo, the issue was not waived, we still conclude G.L.L’s
argument substantively incorrect.
7
{¶26} R.C. 5139.51 governs “supervised release,” or parole, from DYS. R.C.
5139.51(B)(1) provides that when a child is placed on supervised release, DYS must
prepare a supervised release plan which is sent to the juvenile court of the county in
which the child is to be placed. The juvenile court may then add terms and journalize
the supervised release plan, as well as sending a copy to DYS.
{¶27} In this case, the record contains G.L.L.’s “Unified Case Plan,” prepared by
DYS at the time he was placed on supervised release at Tri-State. Nothing in the
record indicates it was journalized as a court order. Regarding this situation, R.C.
5139.51(B)(1) provides, in pertinent part:
{¶28} If, * * * after its receipt of the copy of the supervised release plan,
the juvenile court of the county in which the child will be placed
neither enters in its journal the supervised release plan nor enters
in its journal the supervised release plan plus additional terms and
conditions added by the court, the court and the department of
youth services may attempt to resolve any differences regarding
the plan within three days. If a resolution is not reached within that
three-day period, thereafter, the supervised release plan shall be
enforceable to the same extent as if the court actually had entered
the supervised release plan in its journal. (Emphasis added.)
{¶29} Thus, the statute provides the case plan effectively operates as an order
of the juvenile court. This brings violations of the case plan (which includes the parole
rules) within the ambit of R.C. 2152.02(F)(2), defining a delinquent child as one “who
violates any lawful order of the court made under this chapter or under chapter 2151. of
8
the Revised Code. Consequently, G.L.L.’s violations of the parole rules could be the
subject of a new delinquency complaint, rather than being addressed solely by motion
to revoke his supervised release.
{¶30} The Supreme Court of Ohio’s recent decision in In re S.B., 121 Ohio St. 3d
279, 2009-Ohio-507, provides guidance on this issue. In S.B., the appellant was
adjudicated delinquent and placed on probation by the juvenile court. She failed to
meet the terms imposed by the court, and a new delinquency complaint was filed. The
complaint was filed pursuant to R.C. 2152.02(F), just as in Case No. 13JD000421. The
appellant pleaded true to that complaint and was adjudicated delinquent, with further
probation imposed. The appellant again failed to meet the terms of probation, and a
third delinquency complaint was filed under R.C. 2152.02(F). The appellant moved to
dismiss the complaint as a violation of due process, which the trial court denied. On
appeal, the Fifth Appellate District affirmed; the appellant was subsequently granted a
discretionary appeal to the Supreme Court of Ohio.
{¶31} On appeal to the Court, the appellant argued, inter alia, she should have
been charged with violating probation, instead of a new delinquency charge. The
Supreme Court of Ohio held:
{¶32} While it may be a better policy for the state to address a juvenile’s
nonconforming behavior through probation revocation rather than
additional delinquency charges, we find nothing in the Revised
Code that requires the state to employ one approach over the
other. In this instance, the trial court acted within the express
9
authority granted to it by statute. Because that action was lawful,
this court has no grounds to disturb it. S.B., supra, at ¶15.
{¶33} Although S.B. involved probation or parole terms imposed directly by the
juvenile court rather than a violation of ODYS parole rules, as in this matter, the
circumstances are sufficiently similar to apply the same reasoning. We accordingly hold
a motion to revoke a juvenile’s supervised release, filed pursuant to R.C. 5139.52(F), is
not the only means of addressing a parole violation. The state may proceed under that
statute, but it may also proceed pursuant to R.C. 2152.02(F), by way of R.C.
5139.51(B)(1). For these reasons, the trial court was not required to dismiss the
delinquency complaint in Case No. 13JD000421.
{¶34} G.L.L.’s second issue under his first assignment of error asserts there was
insufficient evidence to support the finding of delinquency under R.C. 2151.02(F).
G.L.L. fails to direct any argumentation at the sufficiency of the evidence underlying his
delinquency adjudications. Rather, his entire argument is directed to the propriety of
dealing with his parole violations via complaint, rather than motion to revoke. Having
addressed this point, we decline to reach the second issue. App.R. 12(A)(2); see also
App.R. 16(A)(7).
{¶35} G.L.L.’s first assignment of error lacks merit.
{¶36} G.L.L’s second assignment of error provides:
{¶37} “The juvenile court erred when it prevented G.L.L. from establishing
witness bias and from presenting his defense. Evid.R. 616(A); Fifth, Sixth, and
Fourteenth Amendments to the U.S. Constitution; Section 10, Article 1, Ohio
Constitution.”
10
{¶38} Under this assignment of error, G.L.L. asserts the juvenile court erred
when it prevented him from establishing witness bias and presenting his defense.
G.L.L. cites to Evid.R. 616(A), captioned “Bias,” which provides: “Bias, prejudice,
interest, or any motive to misrepresent may be shown to impeach the witness either by
examination of the witness or by extrinsic evidence.” G.L.L. contends the trial court
infringed his right to confront the witnesses against him, by refusing defense counsel
the opportunity to cross examine the state’s witnesses, particularly the Tri-State
employees, on whether their motivation was to retaliate against G.L.L. for reporting
alleged harassment by Tri-State employees Wolf and Simmons.
{¶39} We review a trial court’s evidentiary rulings, including those regarding the
scope of cross examination, for abuse of discretion. State v. Montie, 11th Dist. Portage
No. 2006-P-0058, 2007-Ohio-2317, ¶13. The phrase “abuse of discretion” is one of art,
connoting judgment exercised by a court which neither comports with reason, nor the
record. State v. Ferranto, 112 Ohio St. 667, 676-678 (1925). An abuse of discretion
may be found when the trial court “applies the wrong legal standard, misapplies the
correct legal standard, or relies on clearly erroneous findings of fact.” Thomas v.
Cleveland, 176 Ohio App. 3d 401, 2008-Ohio-1720, ¶15 (8th Dist.).
{¶40} In this case, the trial court generally allowed defense counsel to establish
the Tri-state employees testifying were aware of G.L.L.’s allegations against Mr. Wolf
and Mr. Simmons, but excluded any testimony regarding their knowledge of the nature
of those allegations, as hearsay. The trial court made the same ruling regarding the
testimony of Ms. Miller, the GCJFS case worker investigating the allegations.
11
{¶41} G.L.L. cites State v. Denis, 117 Ohio App. 3d 442, 446-447 (6th Dist.1997),
in support of his argument. In Denis, the trial court disallowed the defendant to present
evidence regarding whether the state’s witness had filed domestic violence complaints
against the defendant in the past. The court concluded the documents included
inadmissible hearsay. The appellate court reversed the defendant’s conviction, holding
that an inquiry into prior complaints “would not be to establish the truth of any
complaints but would be relevant to [the witness’] credibility,” and would be properly
used to establish bias against the defendant. Id. at 447. G.L.L. maintains any inquiry
into how the state’s witnesses knew about his allegations would have been offered to
establish bias, not for the truth of the matter itself. Assuming the court erred in
excluding the evidence, any error in its exclusion was harmless beyond a reasonable
doubt.
{¶42} “The Supreme Court of Ohio has held that error is harmless if ‘there is no
reasonable possibility that the evidence may have contributed to the accused's
conviction.’ State v. Bayless (1976), 48 Ohio St. 2d 73, * * *, paragraph seven of the
syllabus. The Supreme Court of Ohio has also stated that it is appropriate to find error
harmless where there is ‘either overwhelming evidence of guilt or some other indicia
that the error did not contribute to the conviction.’ State v. Ferguson (1983), 5 Ohio
St.3d 160, 166, fn. 5, * * *. See, also, Crim.R. 52(A) (harmless error defined as ‘any
error, defect, irregularity, or variance which does not affect substantial rights * * *.) To
find harmless error, a reviewing court must be able to ‘declare a belief that the error was
harmless beyond a reasonable doubt.’ Bayless, 48 Ohio St. 2d 73, * * *, at paragraph
12
seven of the syllabus.” (Parallel citations omitted.) State v. Slocum, 6th Dist. Wood No.
WD-04-054, 2005-Ohio-3859, ¶41.
{¶43} This matter was tried to the court, not a jury. Defense counsel was
allowed to put on the record that Mr. Cline, at least, was aware of G.L.L’ s allegations,
and that Ms. Miller continued to investigate them. G.L.L. testified fully as to his belief
the Tri-State employees were conspiring against him due to his allegations against Mr.
Wolf and Mr. Simmons.
{¶44} Further, any alleged bias by the Tri-State employees would not constitute
a defense to the counts against G.L.L. Their alleged bias is no defense to hitting Mr.
Gentile or to pulling on Mr. Cline’s hoodie and causing the car accident. The only count
it might relate to is the second count in Case No. 13JD000421, alleging delinquency
through violation of DYS Parole Rule 6. That provides: “I will follow the rules of my
parents/guardians or placement facility and I will not change my residence without prior
approval of my parole officer.” The second count in Case No. 13JD000421 alleged
G.L.L. violated this rule by cutting his arm and telling the Tri-State employees he had
consumed tacks and glass. G.L.L.’s parole officer explained, under close questioning
from the trial judge, that this was a violation of Parole Rule 6, since G.L.L.’s motivation
was to get out of Tri-state and into another facility. G.L.L. admitted this, and explained it
was due to his fear of retaliation at Tri-State. The evidence that bias and a desire to
retaliate against G.L.L. for his allegations against Mr. Wolf and Mr. Simmons could be
relevant in this respect; G.L.L., however, testified to the entire issue and the exclusion
of cumulative evidence is harmless error. See, e.g., Slocum at ¶42.
{¶45} G.L.L.’s second assignment of error lacks merit.
13
{¶46} G.L.L.’s third assignment of error provides:
{¶47} “The juvenile court erred when it committed G.L.L. to consecutive 90-day
terms of detention. Fifth and Fourteenth Amendments to the U.S. Constitution; Section
10, Article 1, Ohio Constitution.”
{¶48} Preliminarily, the record indicates appellant was released on January 10,
2014; hence, any issue pertaining to his sentence has been rendered moot. If, as here,
the issue is capable of repetition, yet evading review, however, the mootness doctrine
does not apply. See, e.g., State ex rel. Dispatch Printing Co. v. Geer, 114 Ohio St. 3d
511, 2007-Ohio-4643, ¶10. We shall therefore address the merits of this assigned
error.
{¶49} Under his third assignment of error, G.L.L. asserts the juvenile court erred
when it committed G.L.L. to detention for misdemeanor adjudications for a total of 450
days. G.L.L. argues a juvenile court can only make a disposition regarding an entire
case, and thus the trial court erred in requiring him to serve detention on each count
found true. We do not agree.
{¶50} R.C. 2152.19 provides, in pertinent part:
{¶51} (A) If a child is adjudicated a delinquent child, the court may make
any of the following orders of disposition, in addition to any other
disposition authorized or required by this chapter:
{¶52} * * *
{¶53} (3) Place the child in a detention facility or district detention facility
operated under section 2152.41 of the Revised Code, for up to
ninety days[.]
14
{¶54} Those appellate courts considering the issue have concluded juvenile
courts must enter a disposition on each count of a complaint. In re Huckleby, 3d Dist.
Defiance No. 4-06-40, 2007-Ohio-6149, ¶9-11; In re S.S., 9th Dist. Summit No. 24565,
2009-Ohio-4515, ¶4; In Re D.M., 8th Dist. Cuyahoga No. 95386, 2011-Ohio-2036, ¶5-8.
{¶55} In In re H.V., 138 Ohio St. 3d 408, 2014-Ohio-812, the Supreme Court of
Ohio was asked to decide, inter alia, whether a juvenile court has the authority to
commit a delinquent juvenile to the Ohio Department of Youth Services for a
supervised-release violation and order that period of commitment to be served
consecutively to the commitment period imposed for the crime that resulted in the
violation of supervised release. The Court recognized that R.C. 2152.17(F) authorized
a court to impose consecutive commitment periods when a juvenile commits two or
more acts that would be felonies if committed by an adult. The Court observed,
however, that even though the crime that resulted in H.V.’s supervised-release violation
was a felony, R.C. 2152.17 did not apply because the supervised-release violation did
not, itself, represent an additional felony. The Court nevertheless determined that this
did not mean the juvenile court lacked authority to impose consecutive terms for the
crime and the violation. According to the Court, “[a]uthority to impose consecutive
terms can be found in R.C. 2152.19(A)(8), which provides that ‘[i]f a child is adjudicated
a delinquent child, the court may * * * [m]ake any further disposition that the court finds
proper. * * * .’” H.V., supra, at ¶18.
{¶56} The Court pointed out that simply because R.C. 2152.17 sets forth
circumstances under which a juvenile court may impose consecutive terms of
commitment, it does not necessarily follow juvenile courts lack statutory authority to
15
impose consecutive terms in other situations. H.V., supra, at ¶19. The Court
emphasized H.V. was a repeat offender whose criminal conduct was escalating. Under
such circumstances, the Court determined, it would be contrary to the purposes of
juvenile dispositions in Ohio, which require, among other things, juvenile courts to
protect the public interest and safety as well as hold offenders accountable for their
actions by imposing graduated sanctions. H.V., supra, at ¶20, citing R.C. 2152.01(A).
The Court consequently determined R.C. 2152.19(A)(8) provides a separate statutory
mechanism for juvenile courts to impose a potentially more severe sanction when
necessary to achieve the purposes set forth under R.C. 2152.01(A).
{¶57} Following the reasoning of the Court in H.V., the juvenile court did not err
in imposing consecutive terms in the detention center. Appellant was a repeat offender
whose delinquent conduct had not declined. The instant case was a result of three
counts of delinquency being filed against appellant for violating the Ohio Department
Youth Services Specific Rules of Parole. And, one of the counts of delinquency was
premised upon an assault.
{¶58} Moreover, while the matter was pending, the record indicates appellant
continued to engage in subversive and hostile behavior with detention-center staff, the
prosecutor, and other individuals involved in his case. The record indicates, appellant
threatened to spit on the prosecutor and have the juvenile court judge “rubbed out.” He
made racially and sexually derogatory and demeaning slurs toward unnamed staff
members. He simulated and/or claimed to be masturbating while yelling and grunting
loudly in his room. He called staff members m*****f****** and threatened to kill both
them and their wives as well as rape their daughters and shoot their “retarded kids.”
16
{¶59} In light of the conduct that caused the underlying charges to be filed, as
well as appellant’s antisocial and obstreperous behavior relating to the detention center
staff, the judge, and the prosecutor, the court did not err in fashioning a term of
confinement that involved the imposition of consecutive terms. Permitting appellant to
remain in the detention center for only 90 days for each count would be inconsistent
with the policies of holding offenders accountable for their actions and imposing
graduated sanctions for those who have repeatedly offended. As the Supreme Court of
Ohio has noted:
{¶60} [s]ome juveniles exhibit more serious criminal tendencies and
behavior than do other juveniles. It would be unfair to require that a
child who has committed numerous delinquent acts to be
committed for the same period of time as a child who was
determined to be delinquent for only one act. The first child should
not be rewarded for a crime spree by an interpretation that limits
the discretion of a juvenile court. In re Caldwell, 76 Ohio St. 3d 156,
161 (1996).
{¶61} G.L.L.’s actions leading to the complaint and his subsequent actions
relating to those he encountered while in custody demonstrate his criminal tendencies
and behavior were severe and merited a harsher term of confinement than a mere 90
days. We therefore hold the trial court’s imposition of consecutive terms of confinement
was both authorized by statute and a reasonable exercise of its sound discretion.
{¶62} We shall briefly address the position advanced by the dissent under this
assignment of error. The dissent maintains, pursuant to the dissenting opinion in In re
17
H.V., 138 Ohio St. 3d 408, 2014-Ohio-812, the General Assembly’s enactment of R.C.
2152.17, which sets forth certain circumstances in which delinquent children may be
subjected to consecutive terms of confinement, limits the authority of a juvenile court to
impose such terms. The dissent observes that statute permits consecutive terms
relating to acts which would be felonies if committed by an adult, but not acts which
would be misdemeanors. Pursuant to the maxim expressio unius est exlusio alterius,
the dissent concludes, the juvenile court lacked authority to impose consecutive terms
in this case because the acts at issue would be misdemeanors if committed by an adult.
While the dissent in H.V. provides an alternative viewpoint on the issue at bar, it is
beyond cavil that the majority opinion controls the disposition of this issue and is binding
authority on this court. Because the dissent’s position has been rejected by a majority
of the Supreme Court, it has no legal merit.
{¶63} In addition to flouting the holding and rationale set forth in H.V., supra, the
dissent also declines to follow precedent from this court relating to the doctrine of
merger in juvenile delinquency proceedings. In In re J.D.B., 11th Dist Ashtabula No.
2002-A-0010, 2002-Ohio-6913, this court adopted the Tenth Appellate District’s ruling
from In re Skeens, 10th Dist. Franklin Nos. 81 AP-882 and 81 AP-883, 1982 Ohio App.
LEXIS 12181 (Feb. 25, 1982), which held R.C.2941.25(A), Ohio’s criminal merger
statute, does not apply to juvenile delinquency matters. This court, quoting Skeens,
pointed out:
{¶64} “R.C. 2941.25(A) does not apply to situations where a minor is
alleged to be a delinquent minor since, under our Juvenile Code,
such a minor is not charged with a crime. While the commission of
18
acts which would constitute a crime if committed by an adult sets
the machinery of the Juvenile Court in motion, the issue before the
court is whether or not the minor has engaged in the kind of
conduct that constitutes delinquency and will therefore justify the
intervention of the state to assume his protection and custody.
Evidence that the minor committed acts that would constitute a
crime if committed by an adult is used only for the purpose of
establishing that the minor is delinquent, not to convict him of a
crime and subject him to punishment.” J.D.B., supra, at ¶19,
quoting Skeens, supra, at *6-*7.
{¶65} The Ohio Supreme Court has acknowledged that punishment is not the
goal of the Ohio juvenile system, except as necessary to direct the child toward the goal
of rehabilitation. In re Caldwell, 76 Ohio St. 3d 156, 157 (1996). Hence, even though
juvenile delinquency laws feature inherently criminal aspects, the Court has recognized
that the overriding purpose of the juvenile system is “to provide for the care, protection,
and mental and physical development of children, to protect the public from the wrongful
acts committed by juvenile delinquents, and to rehabilitate errant children and bring
them back to productive citizenship, or, as the statute states, to supervise, care for and
rehabilitate those children.” Id. at 157, quoting R.C. 2151.01. Given these points, not
only would applying R.C. 2941.25 to juveniles be conceptually improper (because the
express language of the statute applies only to convictions), it would also inure to the
disadvantage of troubled juveniles who stand to benefit from additional treatment during
their confinement under circumstances of multiple delinquency determinations, even if
19
those determinations would be allied offenses were the offender an adult. Contrary to
the dissent’s position, there is no sound policy basis or legal justification that would
support deviating from this court’s precedent set forth in J.D.B., supra.
{¶66} G.L.L.’s third assignment of error lacks merit.
{¶67} For the foregoing reasons, G.L.L.’s assignments of error lack merit and
the judgment of the Geauga County Court of Common Pleas, Juvenile Division, is
affirmed.
THOMAS R. WRIGHT, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
___________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶68} Finding merit in all three assignments of error, I would reverse and
remand.
{¶69} Regarding the first assignment of error, I agree with G.L.L.’s first issue
presented: that an order reflecting the conditions of supervised release to ODYS parole
does not constitute an “order” of the court, pursuant to R.C. 2152.02(F)(2), and that
violation of such an order cannot constitute the basis for a finding of delinquency. I
believe the state must address such violations by a motion to revoke pursuant to R.C.
5139.52(F).
{¶70} The state contends this issue was waived. Admittedly, defense counsel
only raised the issue by oral motion at the commencement of the dispositional hearing,
20
in contravention of Juv.R. 22(E). However, this court may take cognizance of issues
waived if they amount to plain error. See, e.g., In re M.R., 3d Dist. Defiance No. 4-11-
12, 2011-Ohio-6528, ¶20-25. I would find the failure to dismiss Case No. 13JD000421,
subjecting G.L.L. to three counts of delinquency which should not have been filed, was
plain error, since the trial court retains jurisdiction to dismiss a complaint.
{¶71} The state relies on two recent decisions of the Supreme Court of Ohio to
support its assertion that revocation of juvenile parole may be accomplished either by
motion to revoke, or by bringing a new complaint for delinquency. In In re L.A.B., 121
Ohio St. 3d 112, 2009-Ohio-354, ¶49, the court stated:
{¶72} “Probation may not be revoked unless the juvenile has violated a court
order. The juvenile again becomes a delinquent juvenile under R.C. 2152.02(F)(2)
(being ‘(a)ny child who violates any lawful order of the court made under this chapter or
under Chapter 2151 of the Revised Code’). During a probation revocation hearing, the
court determines whether a juvenile has violated a condition of probation. Because the
conditions of probation are established through a court order, a violation of probation
also constitutes a violation of a court order.” (Emphasis added.)
{¶73} Thus, L.A.B. stands for both the proposition that juvenile parole violations
are violations of court orders, and the proposition such violations are properly dealt with
by a motion to revoke under R.C. 5139.52(F). This tends to support G.L.L.’s argument.
{¶74} In In re S.B., supra, ¶15, the court stated that juvenile parole violations
may be dealt with either by way of revocation, or by the filing of additional delinquency
charges. However, nothing in In re S.B. clearly establishes that the violations
complained of were violations of ODYS parole rules.
21
{¶75} Thus, In re L.A.B. and In re S.B. do not provide us clear direction.
However, “a juvenile court is a creature of statute and therefore has only such powers
as are conferred upon it by the legislature.” In re H.V., supra, at ¶54, citing In re Agler,
19 Ohio St. 2d 70, 72-74 (1969) (O’Connor, C.J., dissenting). Further, “[a]s a general
rule, specific statutes prevail over general statutes. R.C. 1.51; State ex rel. Slagle v.
Rogers, 103 Ohio St. 3d 89, 2004-Ohio-4354, ¶14, * * *.” (Parallel citation omitted.)
FCDB LBPL 2008-1 Trust v. Remely, 11th Dist. Geauga Case No. 2012-G-3098, 2013-
Ohio-4960, ¶28 (O’Toole, J., dissenting). R.C. 5139.52(F) provides a specific procedure
for dealing with parole violations by juveniles on supervised release from ODYS – the
filing of a motion to revoke. The statutes cited by the state simply provide that a juvenile
is delinquent if he or she violates a court order, R.C. 2152.02(F)(2); and that supervised
release plans may operate as court orders. R.C. 5139.51(B)(1). They are general. As
the legislature has provided a specific statute with a specific procedure dealing with
violations of ODYS supervised release, it must be applied, to facilitate the legislative
intent. R.C. 5139.52(F) controls in the situation presented in this appeal.
{¶76} The trial court should have dismissed the delinquency complaint in Case
No. 13JD000421, since the legislature has given specific instructions on how the
juvenile court must operate.
{¶77} I also find merit in G.L.L’s second assignment of error – that he should
have been allowed to cross examine the Tri-State employees for bias, on whether they
were motivated to retaliate against G.L.L. for reporting alleged harassment by Tri-State
employees Wolf and Simmons.
22
{¶78} “Due process of law requires that in a juvenile delinquency proceeding
where the juvenile may be committed to a state institution many, if not most, of the
rights afforded to adult criminal defendants must be afforded to the juvenile. In re: Gault
(1967) 387 U.S. 1, 30. Included among these rights is * * * the right to confrontation. Id.
at 31-56.” In re Caruso, 6th Dist. Lucas No. L-90-250, 1991 Ohio App. LEXIS 2292, *7
(May 17, 1991).
{¶79} “‘The Sixth Amendment to the United States Constitution provides: “In all
criminal prosecutions, the accused shall enjoy the right to (* * *) be confronted with the
witnesses against him (* * *).” Further, Article I, Section 10 of the Ohio Constitution
provides, in relevant part: “In any trial, in any court, the party accused shall be allowed
to appear and defend in person and with counsel (***) (and) meet the witnesses face to
face ***.”’ State v. Minier (Sept. 28, 2001), 11th Dist. No. 2000-P-0025, 2001-Ohio-
4285, ¶7, citing Delaware v. Van Arsdall (1986), 475 U.S. 673, 679, * * *.” (Parallel
citations omitted.) Montie, supra, ¶14.
{¶80} Thus, in juvenile proceedings where the child faces a loss of freedom, the
child’s constitutional rights, including the right to confront the witnesses against him or
her must be safeguarded. As the court stated in United States v. The William, D.Mass.
No. 16,700, 1808 U.S Dist. LEXIS 5, *20 (Sept. 1808), quoting Alexander Hamilton, The
Federalist No. 78: “[T]he prior act of a superior ought to be preferred to the subsequent
act of an inferior and subordinate authority; and, that, accordingly, whenever a particular
statute contravenes the constitution, it will be the duty of the judicial tribunals to adhere
to the latter, and disregard the former.” Therefore, the interpretation and application of
23
statutes and rules, including the Rules of Evidence, must yield to the superior authority
of the constitution.
{¶81} While we review a trial court’s evidentiary rulings, including those
regarding the scope of cross examination, for abuse of discretion, Montie, supra, at ¶13,
“[w]e review alleged violations of the Confrontation Clause de novo. State v. Smith, 162
Ohio App. 3d 208, 2005-Ohio-3579, * * *, ¶8 (8th Dist), citing United States v. Robinson,
389 F.3d 582, 592 (6th Cir.2004).” (Parallel citation omitted.) State v. Crawley, 8th
Dist. Cuyahoga No. 99636, 2014-Ohio-921, ¶26.
{¶82} In this case, the trial court generally allowed defense counsel to establish
the Tri-state employees were aware of G.L.L’s allegations against Mr. Wolf and Mr.
Simmons, but excluded any testimony regarding their knowledge of the nature of those
allegations, as hearsay. The trial court made the same ruling regarding the testimony of
Ms. Miller, the GCJFS case worker investigating the allegations.
{¶83} Admission of hearsay testimony has been allowed by the appellate courts
of this state to show bias under Evid.R. 616(A). See, e.g., Denis, supra, at 446-447. In
Denis, the appellant was found guilty of domestic violence. Id. at 443. He had
subpoenaed the clerks and records keepers of various courts and police departments,
intending to show that one of the principal witnesses against him, Pamela Hendrix, had
a history of filing harassing and untrue complaints against him. Id. at 443, 445-446.
The trial court quashed the subpoenas, holding the evidence from the clerks and record
keepers would be hearsay. Id. at 445, 446. The Sixth District reversed, stating:
{¶84} “[T]he credibility of these witnesses was crucial to appellant’s conviction.
In attempting to call the records keepers of the various courts and police stations,
24
appellant, though inarticulately, argued that he was trying to establish that Hendrix had
a motive to lie about the altercation. That is, he attempted to establish that Hendrix and
her husband had a history of harassing appellant. Evid.R. 616 states that ‘bias,
prejudice, interest, or any motive to misrepresent may be shown to impeach the witness
either by examination of the witness or by extrinsic evidence.’ In State v. Williams
(1988), 61 Ohio App. 3d 594, 597, * * *, quoting from 3 Weinstein, Evidence (1988),
Section 607(03), at 607-27, the court stated:
{¶85} “‘Because the possible bias of a witness is always significant in assessing
credibility, the trier of fact must be sufficiently informed of the underlying relationships,
circumstances, and influences operating on the witness “so that, in the light of his
experience, he can determine whether a mutation in testimony could reasonably be
expected as a probable human reaction.”’
{¶86} “Additionally, we note that Ohio ‘(* * *) follows the minority rule and does
not require that a foundation be laid as a prerequisite for the introduction of extrinsic
evidence of witness bias.’ Id. Accordingly, the trial court erred in quashing the
subpoenas and in not allowing appellant to call these witnesses to inquire into whether
Hendrix and appellant had previously filed complaints against each other. Such
testimony would not go to the truth of the matter asserted, i.e. the validity of those
complaints, but would rather be indicative of a bias or prejudice on the part of Hendrix
which might taint her credibility.” (Parallel citation omitted.) Denis, supra, at 446-447.
{¶87} Mr. Gentile appears to have been the sole witness to (and victim of)
G.L.L.’s alleged assault on October 10, 2013. He and Mr. Cline were the sole
witnesses to the alleged assault in the car on October 11, 2013. Testimony from them
25
regarding their knowledge of, and attitude toward, G.L.L.’s allegations against Mr. Wolf
and Mr. Simmons would not have gone to the truth of those allegations, but was
designed to determine bias or prejudice. As such, it was an abuse of discretion for the
trial court to prevent defense counsel from cross examining these witnesses on the
subject. Denis, supra, at 446-447.
{¶88} The majority further finds that any error in preventing the cross
examination of the Tri-State employees was harmless beyond a reasonable doubt.
Slocum, supra, at ¶41. I respectfully disagree. Apart from G.L.L. himself, they were the
sole witnesses to his alleged assaults on October 10 and 11, 2013. G.L.L. denied those
assaults, and testified he was scared that Mr. Gentile and Mr. Cline were retaliating
against him for causing the investigation of Mr. Wolf and Mr. Simmons. Thus, the
credibility of both Mr. Gentile and Mr. Cline went to the heart of G.L.L’s only defense.
{¶89} I also find merit in G.L.L.’s third assignment of error: i.e., that he should
not have been committed for five consecutive 90-day terms of detention. Fifth and
Fourteenth Amendments to the U.S. Constitution; Section 10, Article 1, Ohio
Constitution. I would find that, when imposing detention on a child adjudicated
delinquent for what would be misdemeanors if committed by an adult, a juvenile court
can only order concurrent, not consecutive, terms of detention.
{¶90} As the majority notes, those appellate courts considering the issue have
concluded juvenile courts must enter a disposition on each count of a complaint.
However, all of these cases cited by the majority dealt with whether a judgment failing to
dispose of each count in a multi-count complaint was a final, appealable order, not
whether consecutive terms of detention or commitment to ODYS were proper.
26
{¶91} The majority relies on the recent decision of In re H.V., supra, in
concluding a juvenile court can impose consecutive commitments to ODYS for a
violation of supervised release, and the infraction resulting in that violation. Id. at ¶1.
The majority in H.V. found that R.C. 2152.19(A)(8) provides such authority. It further
cited to its prior decision in In re Caldwell, 76 Ohio St. 3d 156 (1996) for the proposition
a juvenile court may impose consecutive terms of commitment, apart from those
circumstances enumerated by statute.
{¶92} The chief justice, joined by Justice Pfeiffer, wrote a powerful dissent in
H.V. Relevant to this case, she wrote:
{¶93} “In the face of silence on the issue of consecutive terms of
institutionalization, it should not be inferred that a juvenile court has the discretion to
order multiple confinement terms to be served consecutively. Although this court made
that inference in In re Caldwell, 76 Ohio St. 3d 156, 1996 Ohio 410, * * * (1996), the
circumstances of Caldwell, both in law and in fact, are far different from the
circumstances of the present case.
{¶94} “In Caldwell, the child had been adjudicated delinquent in 1994 in two
cases that were heard together. In re Caldwell, 10th Dist. Franklin Nos. 94APF07-996
and 94APF07-997, 1995 Ohio App. LEXIS 17, * * * (Jan. 31, 1995). In the first case, the
child was adjudicated delinquent on two fourth-degree felony counts of aggravated
vehicular assault, and in the second case, the child was adjudicated delinquent on a
third-degree felony count of receiving stolen property. The juvenile court imposed terms
of institutionalization for each of the three counts and ordered that they be served
consecutively. This court’s approval of the juvenile court’s dispositional decision was
27
based on the fact that (1) the applicable version of R.C. Chapter 2151 made no mention
of consecutive dispositions, (2) the only guidance on the issue was found in the
instructions that a court shall ‘(m)ake any further disposition that the court finds proper’
under former R.C. 2151.355(A)(11), Am.Sub.H.B. No. 725, 144 Ohio Laws, Part IV,
6368, 6372, effective April 16, 1993, and (3) future cases would be governed by the
then newly amended R.C. 2151.355(B)(2), Am.Sub.H.B. No. 1, 146 Ohio Laws, Part I,
31, 34, effective January 1, 1996, which expressly provided for consecutive terms of
confinement in cases such as Caldwell’s. Caldwell, 76 Ohio St. 3d at 158-159, * * *, fn.
1.
{¶95} “Caldwell was decided at a time when R.C. Chapter 2151 governed
children who were abused, neglected, or dependent, as well as juvenile delinquents.
See In re Cross, 96 Ohio St. 3d 328, 2002-Ohio-4183, * * *, ¶9. However, the juvenile
statutory scheme was significantly altered in 2002 by the Juvenile Justice Reform Act,
Am.Sub.S.B. No. 179, 148 Ohio Laws, Part IV, 9447. Both bodies of juvenile law were
revised, and R.C. Chapter 2152 was enacted to exclusively address juvenile
delinquency. Cross at ¶11.
{¶96} “Caldwell was also decided at a time when Ohio’s criminal sentencing
code retained the common-law preference for consecutive sentences. State v. Hodge,
128 Ohio St. 3d 1, 2010-Ohio-6320, * * *, ¶26 (stating that ‘the common law prefer(red)
consecutive sentences over concurrent sentences’). Comprehensive changes were
made to the sentencing code by 1995 Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV,
7136, effective July 1, 1996. For example, R.C. 2929.41(A) was amended to presume
that sentences would be served concurrently unless a court stated otherwise. Although
28
R.C. 2929.41(A) was excised by State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, * * *,
the identical language of R.C. 2929.41(A) was reenacted in full by the legislature in
2011 Am.Sub.H.B. No. 86, effective September 30, 2011. Accordingly, a whole host of
direct and analogous presumptions that existed at the time of Caldwell are no longer
valid in the present day.
{¶97} “Here, we are not facing the same lack of direction on the issue of
consecutive terms of confinement in the juvenile statutes as we were in Caldwell, and
we are also facing a very different juvenile statutory scheme from what existed at the
time of Caldwell. The General Assembly has now addressed the issue of consecutive
terms of confinement for a delinquent child by enacting R.C. 2152.17. Pursuant to R.C.
2152.17(E), if a child is adjudicated a delinquent for a felony and the child also
committed one of several enumerated specifications, the child’s term of confinement for
the specification must be served consecutively to the term of confinement for the
underlying delinquent act. And pursuant to R.C. 2152.17(G), the juvenile court may
impose consecutive terms of confinement if it adjudicates a child delinquent for multiple
felony offenses and commits the child to the legal custody of ODYS for each offense.
Neither of those circumstances applies here.
{¶98} “The Ohio Legislature having dealt with the subject, and having made
certain provisions and certain exceptions thereto, it will be presumed that the
Legislature has exhausted the legislative intent, and that it has not intended the practice
to be extended further than the plain import of the statutes already enacted. The well-
known maxim, expressio unius est exclusio alterius, applies. Madjorous v. State, 113
Ohio St. 427, 433, * * * (1925).
29
{¶99} “R.C. 2152.17 does not state that a juvenile court is permitted to order that
a term of confinement imposed from a revocation disposition be served consecutively to
a term of confinement from a new adjudication of delinquency. And this court has no
power to create additional juvenile court authority. The extension of authority to impose
consecutive confinement terms is a policy matter within the purview of the legislature.
In re M.W., 133 Ohio St. 3d 309, 2012-Ohio-4538, * * *, ¶28 (Lanzinger, J., concurring).
Just as the General Assembly amended R.C. Chapter 2152 to allow for consecutive
confinement terms in certain circumstances, it could do so for the circumstances in this
case.” (Parallel citations omitted.) In re H.V., supra, ¶56-61 (O’Connor, C.J.,
dissenting.)
{¶100} I agree with the chief justice that the General Assembly’s enactment of
R.C. 2152.17, specifically governing the circumstances under which delinquent children
may be subjected to consecutive terms of confinement, indicates the legislature’s intent
to limit consecutive terms to the situations enumerated. R.C. 2152.17 speaks to acts by
children which would be deemed felonies if committed by an adult, not to acts which
would be misdemeanors, as in this case. Both In re Caldwell and In re H.V. involved
acts which would have been felonies if committed by an adult. I would decline to apply
them to the instant case. Given the legislative intent embodied in R.C. 2152.17, I would
hold that a juvenile court, imposing detention pursuant to R.C. 2152.19(A)(3) on a multi-
count complaint(s) concerning acts which would be misdemeanors if committed by an
adult, must order the detentions be served concurrently.
{¶101} Under this assignment of error, I would further find the counts in Case No.
13JD000467 were allied offenses of similar import, requiring merger (believing Case
30
No. 13JD000421 should have been dismissed in its entirety by the trial court, I shall not
analyze it.) The first count in Case No. 13JD000467 alleged G.L.L. was delinquent due
to committing what would be misdemeanor assault on Mr. Cline by grabbing his hoodie;
the second count alleged this same conduct constituted the minor misdemeanor of
obstruction and interference affecting view and control of driver.
{¶102} As the majority notes, in the lead case of In re Skeens, supra, the Tenth
District held the doctrine of merger does not apply in the juvenile setting, since charges
of delinquency does not constitute allegations of crime. Id. at *6-7. I further recognize
this court, like many other appellate courts, has followed Skeen.
{¶103} However, in In re M.D. and B.D., 5th Dist. Knox No. 2011-CA-9, 2012-
Ohio-31, the Fifth District, without discussing whether merger applied in juvenile
proceedings, did a full-scale State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314
analysis, finding that the charges of what would be gross sexual imposition and
felonious assault if committed by an adult did not merge. In re M.D. and B.D. at ¶99-
117. In this case, G.L.L. is being subjected to detention, involving severe limitations on
his freedom. The dispositions are sufficiently similar to criminal penalties to call the
doctrine of merger into play. See, e.g., Caruso, supra, at *7.
{¶104} In State v. Martin, 11th Dist. Lake No. 2012-L-043, 2013-Ohio-1944, ¶19-
32, we held:
{¶105} “Our review of an allied offenses question is de novo. State v. Williams,
123 Ohio St. 3d 482, 2012-Ohio-5699, ¶12, * * *. ‘R.C. 2941.25 “codifies the protections
of the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution and Section 10, Article I of the Ohio Constitution, which prohibits multiple
31
punishments for the same offense.” State v. Underwood, 124 Ohio St. 3d 365, 2010-
Ohio-1 (* * *) ¶23, * * *. At the heart of R.C. 2941.25 is the judicial doctrine of merger;
merger is “the penal philosophy that a major crime often includes as inherent therein the
component elements of other crimes and that these component elements, in legal
effect, are merged in the major crime.” State v. Botta, 27 Ohio St. 2d 196, 201, * * *
(1971).’ (Parallel citations omitted.) Williams at ¶13.
{¶106} “R.C. 2941.25 states:
{¶107} “‘(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.
{¶108} “‘(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and the defendant may be
convicted of all of them.’
{¶109} “‘To ensure compliance with both R.C. 2941.25 and the Double Jeopardy
Clause, “a trial court is required to merge allied offenses of similar import at sentencing.
Thus, when the issue of allied offenses is before the court, the question is not whether a
particular sentence is justified, but whether the defendant may be sentenced upon all
the offenses.” Underwood at ¶27.’ Williams, supra, at ¶15.
{¶110} “The method employed by courts in determining whether two crimes
constitute allied offenses of similar import has evolved. In State v. Rance, 85 Ohio
St.3d 632, 1999-Ohio-291, * * * (1999), the Supreme Court of Ohio held that ‘(u)nder an
32
R.C. 2941.25(A) analysis, the statutorily defined elements of offenses that are claimed
to be of similar import are compared in the abstract.’ Id., paragraph one of the syllabus.
(Emphasis sic.) Since its release, Rance has gone through various modifications and
revisions. See State v. Cabrales, 118 Ohio St. 3d 54, 2008-Ohio-1625, * * *; State v.
Brown, 119 Ohio St. 3d 447, 2008-Ohio-4569, * * *; State v. Winn, 121 Ohio St. 3d 413,
2009-Ohio-1059, * * *.
{¶111} “The Supreme Court of Ohio revisited the allied offenses analysis again in
2010 and overruled Rance in State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, *
* *. Under the new analysis, which this court later relied upon and embraced in State v.
May, 11th Dist. No. 2010-L-131, 2011-Ohio-5233, ‘(w)hen determining whether two
offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the
conduct of the accused must be considered.’ Johnson, at the syllabus. The Johnson
court provided the new analysis as follows:
{¶112} “‘In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), the question is whether it is possible to commit one offense and
commit the other with the same conduct, not whether it is possible to commit one
without committing the other. (* * *) If the offenses correspond to such a degree that the
conduct of the defendant constituting commission of one offense constitutes
commission of the other, then the offenses are of similar import.
{¶113} “‘If the multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same conduct, i.e.,
“a single act, committed with a single state of mind.” (* * *).
33
{¶114} “‘If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
{¶115} “‘Conversely, if the court determines that the commission of one offense
will never result in the commission of the other, or if the offenses are committed
separately, or if the defendant has (a) separate animus for each offense, then,
according to R.C. 2941.25(B), the offenses will not merge.’ Id. at ¶48-51. (Citations
omitted.) (Emphasis sic.)
{¶116} “This court went on to state in May, supra, at ¶50–51:
{¶117} “‘“In departing from the former test, the court developed a new, more
context-based test for analyzing whether two offenses are allied thereby necessitating a
merger. In doing so, the court focused upon the unambiguous language of R.C.
2941.25, requiring the allied-offense analysis to center upon the defendant’s conduct,
rather than the elements of the crimes which are charged as a result of the defendant’s
conduct.”’ (State v.) Miller (,11th Dist. No. 2009-P-0090, 2011-Ohio-1161,) at ¶47, citing
Johnson at ¶48-52.
{¶118} “‘“The (Johnson) court acknowledged the results of the above analysis will
vary on a case-by-case basis. Hence, while two crimes in one case may merge, the
same crimes in another may not. Given the statutory language, however, this is not a
problem. The court observed that inconsistencies in outcome are both necessary and
permissible ‘(* * *) given that the statute instructs courts to examine a defendant’s
conduct – an inherently subjective determination.”’ Miller at ¶52, quoting Johnson at
¶52.’” (Parallel citations omitted.)
34
{¶119} Applying Johnson to the instant matter indicates the violations set forth on
both counts in Case No. 13JD000467 (misdemeanor assault and obstruction and
interference affecting view and control of driver), were of similar import. They are based
on the exact same conduct: G.L.L. pulling Mr. Cline’s hoodie and causing the car
accident. Further, the animus for both was the same: G.L.L.’s admitted desire to get out
of Tri-State and into a hospital. Consequently, they were allied offenses of similar
import and should have merged.
{¶120} For all the reasons foregoing, I respectfully dissent.
35