In re C.P. ( 2012 )

[Cite as In re C.P., 2012-Ohio-5453.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
IN RE: CORY P. : Patricia A. Delaney, P.J.
: John W. Wise, J.
: Julie A. Edwards, J.
:
: Case No. 2012 AP 02 0016
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from Tuscarawas County
Court of Common Pleas, Juvenile
Division, Case No.
11JD00370
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 14, 2012
APPEARANCES:
For State of Ohio For Cory P.
RYAN STYER CHARLYN BOHLAND
Tuscarawas County Prosecutor Assistant State Public Defender
Tuscarawas County Prosecutor’s Office 250 East Broad Street, Suite 1400
125 East High Avenue Columbus, Ohio 43215
New Philadelphia, Ohio 44663
[Cite as In re C.P., 2012-Ohio-5453.]
Edwards, J.
{¶1} Appellant, Cory P., appeals from the January 18, 2012, Judgment Entry of
the Tuscarawas County Court of Common Pleas, Juvenile Division.
STATEMENT OF THE FACTS AND CASE
{¶2} On July 19, 2011, a complaint was filed in the Tuscarawas County Court
of Common Pleas, Juvenile Division, alleging that appellant was a delinquent child by
virtue of having committed four counts of theft in violation of R.C. 2913.02(A)(1),
felonies of the fourth degree if committed by an adult, and one count of receiving stolen
property in violation of R.C. 2913.51(A), a felony of the fourth degree if committed by an
adult. At his arraignment on August 16, 2011, appellant denied the charges.
{¶3} Pursuant to a Judgment Entry filed on October 18, 2011, one count of
theft was dismissed upon appellee’s motion.
{¶4} On December 8, 2011, appellant filed a notice indicating that he intended
to introduce at trial printouts of “Facebook” conversations between himself and “a
participant in the delinquent acts child is alleged to have committed.”
{¶5} Subsequently, a bench trial commenced on December 15, 2011. At trial,
Clyde Swanson testified that, on June 30, 2011, his son’s XR100 red and white Honda
dirt bike was stolen sometime after midnight from his detached garage. The bike was
titled in Swanson’s name, and he testified that he had paid $1,200.00 for the bike
approximately two years earlier. According to Swanson, the bike was recovered a week
or two later in “beat up” condition. Transcript at 23. Swanson testified that the bike was
found close to appellant’s house. Swanson testified that appellant, a couple of years
earlier, used to hang out with his son and stayed overnight at his house and that
Tuscarawas County App. Case No. 2012 AP 02 0016 3
appellant “wasn’t right so I told my son to stay away from him.” Transcript at 24. When
asked if appellant had ever been in Swanson’s garage, Swanson testified that he
“imagine[d]” that he had been and that appellant knew about the bike. Transcript at 25.
On cross-examination, Swanson admitted that he did not see who stole the dirt bike.
{¶6} The next witness to testify was Michael Tomer. Tomer testified that he had
a yellow Suzuki JR80 dirt bike that he purchased in 1998 or 1999 for $600.00. He
testified that when he came home from vacation in July of 2011, the bike was gone from
his detached garage. The back plexiglass window had been pushed out of the garage
and his tool box, which had been in front of the window, had been moved out of the
way. The following testimony was adduced after Tomer was asked to explain how the
bike was recovered:
{¶7} “A. Um, I’d seen [appellant] and [J.C]…
{¶8} “Q. Now when you say [appellant], who do you mean?
{¶9} “A. [Appellant].
{¶10} “Q. Okay, and [J.C], you mean [J.C]?
{¶11} “A. Yes.
{¶12} “Q. Okay.
{¶13} “A. I’d seen them walking up by the school and…
{¶14} “Q. By Bolivar Elementary School?
{¶15} “A. Correct, and I, uh, drove up through there and confronted them and
after a couple of minutes of confrontation they, uh, [appellant] said he’d text somebody
that knew where the bike was and that he could show me where it was so we went out
Tuscarawas County App. Case No. 2012 AP 02 0016 4
the road and they showed me right where it was and I put it on the jeep and brought it
back home.
{¶16} “Q. Okay, and, um, did you have any reason to believe that [appellant]
knew where your bike was?
{¶17} “A. I didn’t know if he knew but I, from all the stuff I heard going around
that I, uh, knew if he didn’t know that himself that he knew somebody that would know
was involved so...
{¶18} “Q. And he appeared to text someone?
{¶19} “A. Yes, he was texting quite a bit when I was talking to, mainly I was
talking to [J.C] and [appellant] was texting.
{¶20} “Q. Okay, and [J.C.] was with [appellant]?
{¶21} “A. Correct.
{¶22} “Q. So if [appellant] needed to know from [J.C.] there was no reason to
text him?
{¶23} “A. Correct.
{¶24} “Q. Okay. Did [appellant] tell you who it was he was texting?
{¶25} “A. No.
{¶26} “Q. Okay, no name?
{¶27} “A. No.” Transcript at 38-39.
{¶28} Tomer testified that the bike, which was recovered from a ditch outside of
town, had scratches from road rash and that the throttle was broken. He further testified
that he did not know appellant, but had seen him walking by.
Tuscarawas County App. Case No. 2012 AP 02 0016 5
{¶29} Chief Randy Haugh of the Village of Bolivar and Zoar testified that there
was a rash of thefts and burglaries during the summer of 2011, and that specific items
were targeted. Chief Haugh testified that after Swanson contacted him because
Swanson believed that he had seen his missing dirt bike at appellant’s house, he
contacted Sergeant Eric Houze of the Tuscarawas County Sheriff’s Office to see if a
stolen dirt bike report had been filed. When he drove by appellant’s residence, Chief
Haugh observed a red dirt bike in the garage. He then contacted Sergeant Houze again
to relay such information. When asked, the Chief indicated that he had not seen that
particular dirt bike in appellant’s garage before because he had never paid attention.
{¶30} Chief Haugh testified that he conducted an investigation after Tomer
reported his dirt bike stolen. He testified that he was patrolling on the evening of July 5,
2011 at around midnight near the Bolivar Intermediate School when he saw two
shadows on the playground equipment at 12:30 p.m. Chief Haugh then parked his
cruiser and crawled over to where appellant and J.C. were talking. He testified that he
saw appellant and J.C. get into Tomer’s Jeep. Chief Haugh later caught up with Deputy
Ryan Hamilton, appellant and J.C. at Tomer’s residence. At the time, a yellow dirt bike
was strapped to the hood of Tomer’s Jeep. Chief Haugh testified that he knew appellant
by sight, although he did not know appellant’s name, and that appellant had a lot of
fresh road rash on his hands, arms, face and nose.
{¶31} Chief Haugh further testified that he took appellant home and that
appellant’s mother gave him permission to interview appellant. During the interview,
appellant told the Chief that he did not take the items, but that he was with J.C. when
the items were taken. Appellant specifically referred to the Swanson theft and said, with
Tuscarawas County App. Case No. 2012 AP 02 0016 6
respect to the Tomer theft, that he had helped J.C. get through the window. Chief
Haugh testified that appellant confessed. In a written statement provided to the Chief
days later, appellant retreated from his original confession. According to Chief Haugh,
appellant’s written statement reduced his culpability.
{¶32} On cross-examination, Chief Haugh indicated that he did not know if a
stolen dirt bike was ever recovered from appellant’s garage because he turned the
matter over to Sergeant Houze. When asked if there was physical evidence linking
appellant to any crime, Chief Haugh cited to appellant’s wounds and the blood on
Tomer’s dirt bike. However, he admitted that the blood was never tested and admitted
that there was no physical evidence linking appellant to any crime. He further testified
that, during the investigation, a witness came forward and indicated that he or she had
seen a young male with a Mohawk riding one of the stolen dirt bikes. Chief Haugh did
not know if appellant ever sported a Mohawk, but indicated that he knew that J.C. used
to wear one. He further testified that he had not received statements from any witnesses
who saw appellant riding a stolen dirt bike.
{¶33} On redirect, Chief Haugh testified that there was blood on the side of the
tank of the Tomer yellow dirt bike when it was recovered on July 5, 2011. Chief Haugh
testified that appellant had wounds that looked like they had been bleeding while J.C.
appeared to be free of injury.
{¶34} Deputy Ryan Hamilton of the Tuscarawas County Sheriff’s Office testified
that he assisted Chief Haugh in an investigation that began after dark on July 5, 2011.
Deputy Hamilton testified that after Tomer left with appellant and J.C. in his Jeep, he
went to the Tomer residence. Deputy Hamilton testified that appellant had “many
Tuscarawas County App. Case No. 2012 AP 02 0016 7
physical injuries” on his body and that his left arm was bandaged from the elbow to the
wrist. Transcript at 98. Appellant appeared to have road rash on his hand, arm and face
while J.C. did not. According to Deputy Hamilton, J.C., during an interview, implicated
appellant in the thefts.
{¶35} On cross-examination, Deputy Hamilton testified that there was no
physical evidence linking appellant to any crime. He further admitted that J.C. was not
entirely truthful during his interview and that he yelled at J.C. to stop lying. The following
is an excerpt from Deputy Hamilton’s testimony on redirect:
{¶36} “Q. Um, in regards to [J.C.], uh, interview. Attorney Brechbill asked you if
he [J.C.] lied and you said in the beginning. Can you elaborate on that please, without
telling us what he said?
{¶37} “A. Right, uh, I just remember he backtracked a couple different times in
the beginning. In the end he copped to saying, yes, I took the truck,1 this is what I did,
these are things I did, which led me and Chief Haugh to believe that, towards the end
he started telling the truth because he was copping to what he allegedly did.
{¶38} “Q. At the end of the interview were you confident in certain things that
[J.C] had told you?
{¶39} “A. Yes.
{¶40} “Q. Okay, now in the end [J.C.] provided you confessions?
{¶41} “A. Correct.
{¶42} “Q. Okay, and in the grand scheme of things these were not, it was not
difficult to get those confessions?
{¶43} “A. No.
1
The charge of theft of a motor vehicle was later dismissed by the trial court.
Tuscarawas County App. Case No. 2012 AP 02 0016 8
{¶44} “Q. Okay. Did [appellant] ever offer to be interviewed by you?
{¶45} “A. No.
{¶46} “Q. Okay, did he ever offer to cooperate?
{¶47} “A. No.” Transcript at 106-107.
{¶48} Sergeant Eric Houze testified that he took the report of Swanson’s stolen
bike and that the red bike at appellant’s home was not Swanson’s bike. According to the
Sergeant, Swanson’s bike was eventually recovered at another location.
{¶49} At trial, J.C. admitted that he recently had been convicted of three counts
of breaking and entering and three counts of theft and had been sentenced. He testified
that he was not testifying as part of any plea bargain and had nothing to gain by
testifying.
{¶50} J.C. testified that they both stole on more than one night. He testified that
appellant, with respect to the Tomer dirt bike, indicated that he knew where a dirt bike
was and mentioned the Tomer residence. J.C. testified that when appellant approached
the Tomer residence, J.C stayed in the alley and watched appellant break into the
garage at about 1:00 a.m. According to J.C., appellant pried open the plexiglass
window and crawled inside the garage and took the dirt bike. He further testified that
appellant then walked the bike down the road and then took off on Tomer’s dirt bike
while J.C. rode appellant’s dirt bike, which was red. At the time, J.C. had a Mohawk.
J.C. also testified that the two dirt bikes crashed into each other and that appellant had
road rash on his face and hands and perhaps leg and sprained or broken fingers.
Appellant, according to J.C., then ditched the Tomer bike. A few days later, Tomer
confronted J.C. and appellant wanting to know where the bike was. J.C. testified that he
Tuscarawas County App. Case No. 2012 AP 02 0016 9
convinced appellant to tell Tomer where the bike was and that they both guided Tomer
to the bike. When asked, J.C. admitted telling Tomer that they both had stolen his bike
and testified that appellant told Tomer that Dylan Dunlap had taken the bike and that he
was going to call Dunlap and find out where the bike was. J.C. testified that appellant
was texting Dunlap.
{¶51} J.C. also testified that appellant indicated that he knew of a dirt bike that
they could steal and said that the bike belonged to Cody Swanson, who is Clyde
Swanson’s’ son. J.C. testified that he refused to go to Swanson’s property because he
knew Cody and that he waited at the city ball field while appellant went to the Swanson
residence and stole the dirt bike. According to J.C., appellant then rode around on the
bike for a few minutes and then got off the bike and said that they should look at a red
Ford F150 pick-up truck that was visible from the field. The keys were in the truck. J.C.
testified that appellant insisted that they should take the truck, but that he initially told
appellant no. After appellant then got into the truck and started it, J.C. got into the truck
and followed appellant as he rode Swanson’s dirt bike. J.C. admitted that they had
stolen the dirt bike and stolen the truck. After ditching the truck, the two both rode the
dirt bike.
{¶52} On cross-examination, J.C. admitted that he had pleaded guilty to
breaking and entering and stealing with respect to the Swanson dirt bike and breaking
and entering and stealing with respect to the Tomer dirt bike, although he testified that “I
did not taken any action, but I was with [appellant].” Transcript at 150. On redirect, J.C.
also admitted that, during his interview by Deputy Hamilton, he did not start out telling
the truth because he was scared and that by the end of the interview, he was telling the
Tuscarawas County App. Case No. 2012 AP 02 0016 10
truth. He further admitted having Facebook conversations with appellant about the
crimes, but testified that he had deleted the messages after his mother told him to do
so.
{¶53} At trial, appellant’s mother testified, over objection, that she assisted
appellant in preparing exhibits for trial. She testified that she printed out Facebook
messages for appellant. She testified that she was with appellant at the library when he
copied and pasted messages from Facebook onto a disc and that appellant did not
modify or change any of the information. She further testified that appellant never
confessed any crimes to Chief Haugh, but rather provided Haugh with the location of a
stolen item that J.C. had told appellant about. Appellant’s grandmother testified
similarly as to the copying of the Facebook messages.
{¶54} Appellant testified that he cooperated in the investigation of the stolen
Swanson dirt bike and that the red dirt bike in his garage was his bike. The VIN on the
red bike in his garage did not match the VIN on the stolen bike. Appellant further
testified that he did not know about the stolen Tomer dirt bike until confronted by Tomer
at the school. Appellant admitted telling Tomer where the stolen dirt bike was located,
but testified that J.C. had told him where the bike was located and had threatened to
hurt him if he told. According to appellant, J.C. carried a knife. Appellant denied any
involvement with the theft of the Tomer dirt bike or with the theft of the Swanson dirt
bike and denied telling Chief Haugh that he was with J.C. when the thefts took place.
He testified that J.C. told him where the stolen items were. Appellant also testified that
he never told police that J.C. had threatened him with a knife.
Tuscarawas County App. Case No. 2012 AP 02 0016 11
{¶55} Appellant testified that he highlighted and copied Facebook messages,
loaded them onto a disc drive and then copied them at the library and that he did not
modify or change any of the information. Appellant testified that once he discovered that
he was allowed to use the messages at trial, he turned them over to his counsel. The
Facebook messages were admitted as Exhibits 4, 5 and 6. In the messages, J.C.
admitted to stealing the bikes and stated that he was going to blame appellant.
{¶56} On cross-examination, appellant testified that he did not tell the officers,
who came to his house to look at his dirt bike, that J.C. had the Swanson’s bike,
because he did not know that J.C. had the bike at the time. While appellant, in his
written statement, had indicated that he knew that J.C. had the Swanson’s dirt bike,
appellant testified that his written statement to police was all false. Appellant further
denied telling Chief Haugh that he was with J.C. when J.C. stole the two bikes and
testified that Haugh must have misunderstood what he said. Appellant claimed that he
told Chief Haugh that he knew where the bike was.
{¶57} On cross-examination, the State introduced State’s Exhibit A, fabricated
Facebook messages, without alerting appellant or his counsel that the messages were
fabricated. In the messages, appellant admitted to stealing the items. Appellant
identified Exhibit A as the Facebook messages that he had printed out and given to his
counsel and appellee had appellant read the fabricated confessions that he had stolen
the items. After appellant denied writing the messages, the Assistant Prosecuting
Attorney admitted that she had made up the Facebook messages during her lunch
break. She indicated that she had done so to show that it was “pretty obvious that you
Tuscarawas County App. Case No. 2012 AP 02 0016 12
can manipulate Facebook pages if you don’t print out the Facebook pages…” Transcript
at 239.
{¶58} Pursuant to a Judgment Entry filed on January 5, 2012, the trial court
found that appellant was delinquent in violation of R.C. 2913.51(A) and 2913.02(A)(1).
The trial court specifically found that appellant had stolen the yellow dirt bike and
“clearly had the red bike in his possession, knowing it was stolen.” As memorialized in
a Judgment Entry filed on January 18, 2012, the trial court committed appellant to the
Department of Youth Services for a minimum of six months on each offense and a
maximum not to exceed appellant’s attainment of the age of twenty-one. The trial court
ordered that the commitments run consecutively to each other. The trial court also
ordered appellant to pay restitution in the amount of $120.98.
{¶59} Appellant now raises the following assignments of error on appeal:
{¶60} “I. THE STATE’S IMPROPER ACTIONS IN PRESENTING FALSE
FACEBOOK MESSAGES AS ‘STATE’S EXHIBIT A.’ AND MISLEADING CORY AND
HIS COUNSEL DEPRIVED CORY OF HIS RIGHT TO A FAIR TRIAL AS
GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.
{¶61} “II. THE JUVENILE COURT VIOLATED CORY’S RIGHT TO DUE
PROCESS WHEN IT ADJUDICATED HIM DELINQUENT OF THEFT AND RECEIVING
STOLEN PROPERTY WHEN THERE WAS NO PHYSICAL EVIDENCE LINKING
CORY TO THE OFFENSE, AND THE EVIDENCE WAS CONTRADICTORY AND
BASED ON THE TESTIMONY OF AN UNTRUTHFUL CO-DEFENDANT, IN
Tuscarawas County App. Case No. 2012 AP 02 0016 13
VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
{¶62} “III. THE JUVENILE COURT ERRED WHEN IT FAILED TO CONSIDER
COMMUNITY SERVICE IN LIEU OF FINANCIAL SANCTIONS BEFORE ORDERING
CORY TO PAY COURT COSTS AND FINES, IN VIOLATION OF R.C. 2152.20(D).
{¶63} “IV. CORY WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL
AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION.”
I
{¶64} Appellant, in his first assignment of error, argues that he was deprived of a
fair trial by the State’s improper actions in presenting false Facebook messages as
“State’s Exhibit A” and misleading appellant and his counsel.
{¶65} As is stated above, at trial, appellant presented Facebook messages that
he asserted supported his claim that J.C. was lying about appellant’s involvement. The
Facebook messages were admitted as appellant’s Exhibits 4, 5 and 6. On cross-
examination, appellee showed appellant what was marked as State’s Exhibit A and
asked appellant if he recognized the same and appellant indicated that they were the
messages from Facebook that he had printed out and provided to his counsel. When
appellant’s counsel asked for clarification as to what exhibit appellee was referring to,
appellee was evasive. Subsequently, appellee stated that she had fabricated Exhibit A
during her lunch break in order to show that Facebook pages could be manipulated.
Appellant now argues that the prosecutor’s actions deprived him of a fair trial.
Tuscarawas County App. Case No. 2012 AP 02 0016 14
{¶66} A prosecuting attorney's conduct during trial does not constitute grounds
for error unless the conduct deprives the defendant of a fair trial. State v. Keenan, 66
Ohio St.3d 402-405, 613 N.E.2d 203 (1993); State v. Treesh , 90 Ohio St.3d 460, 480-
481, 2001-Ohio-4, 739 N.E.2d 749. The touchstone of a due process analysis in cases
of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the
prosecutor. Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). The
effect of the prosecutor's misconduct must be considered in light of the whole trial. State
v. Durr, 58 Ohio St.3d 86, 94, 568 N.E.2d 674 (1991); State v. Maurer, 15 Ohio St.3d
239, 266, 473 N.E.2d 768 (1984).
{¶67} Evid.R. 611(B) states that cross-examination shall be permitted on all
relevant matters and matters affecting credibility. “The limitation of * * * cross-
examination lies within the sound discretion of the trial court, viewed in relation to the
particular facts of the case. Such exercise of discretion will not be disturbed in the
absence of a clear showing of an abuse of discretion.” State v. Acre, 6 Ohio St.3d 140,
145, 451 N.E.2d 802 (1983). But “[i]t is improper for an attorney, under the pretext of
putting a question to a witness, to put before a jury information that is not supported by
the evidence.” State v. Smidi, 88 Ohio App.3d 177, 183, 623 N.E.2d 655 (6th
Dist.1993). And “[p]rosecutors must avoid insinuations and assertions calculated to
mislead.” State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). A cross-
examiner may ask a question if the examiner has a good faith belief that a factual
predicate for the question exists. State v. Gillard, 40 Ohio St.3d 226, 533 N.E.2d 272(1988), paragraph two of the syllabus. Moreover, a prosecutor may not knowingly
present false testimony to procure a verdict. McMullen v. McMullen, 3 Ohio St.2d 160,
Tuscarawas County App. Case No. 2012 AP 02 0016 15
165, 209 N.E.2d 449 (1965). When the State obtains a conviction by the knowing use
of false evidence, the defendant is entitled to a new trial “if there is any reasonable
likelihood that the false testimony could have affected the judgment of the jury.” United
States v. Argurs 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.E.2d 342 (1976).
{¶68} We find that appellee acted improperly in misleading appellant and not
disclosing to appellant or his counsel that Exhibit A was a document that she had
fabricated during her lunch hour in order to cross-examine appellant. Appellee clearly
ambushed appellant and his counsel with the fabricated document and was not
immediately forthcoming about the nature of such exhibit.
{¶69} However, we note that defense counsel never objected to appellee’s
conduct. “Absent plain error, an appellate court will not consider errors that the
defendant failed to object to at the trial level.” State v. Thompson, 127 Ohio App.3d 511,
522, 713 N.E.2d 456 (8th Dist. 1998). Crim.R. 52(B) provides that, “[p]lain errors or
defects affecting substantial rights may be noticed although they were not brought to the
attention of the court.” “Notice of plain error under Crim.R. 52(B) is to be taken with the
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus. In order to find plain error under Crim R. 52(B), it must
be determined, but for the error, the outcome of the trial clearly would have been
otherwise. Id. at paragraph two of the syllabus.
{¶70} Because the trial in this case was a bench trial, as opposed to a jury trial,
and based on the evidence, as set forth in the following assignment of error, we find that
appellant was not prejudiced. The trial court, as trier of fact, was aware that appellee
Tuscarawas County App. Case No. 2012 AP 02 0016 16
had fabricated the Facebook messages. We find that appellant was not prejudiced
because there was not a reasonable likelihood that the judgment was affected.
{¶71} Appellant’s first assignment of error is, therefore, overruled.
II
{¶72} Appellant, in his second assignment of error, argues that the finding of
delinquency of theft (with respect to the yellow dirt bike) and receiving stolen property
(with respect to the red dirt bike) was against the manifest weight of the evidence.
{¶73} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in evidence the jury ‘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. Thompkins, 78 Ohio St.3d 380, 387,
1997–Ohio–52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist. 1983).
{¶74} Appellant specifically argues that his co-defendant, J.C., was not credible
and that there was no physical evidence linking him to the crimes. Appellant notes that
J.C. admitted to the offenses in this case and was sentenced, but that, at trial, he placed
all of the blame on appellant. Appellant also notes that J.C. admitted that he initially lied
to police about his involvement and had to be cautioned against lying.
{¶75} As is stated above, Michael Tomer testified at trial that when he
confronted appellant and J.C. about the yellow dirt bike, appellant said that he would
text someone who knew where the bike was and that he could show Tomer where the
Tuscarawas County App. Case No. 2012 AP 02 0016 17
bike was located. According to Tomer, appellant then took him to the bike. Tomer
further testified that appellant appeared to text someone and that because J.C. was
present when appellant was texting, there was no need to text J.C. if appellant needed
information from J.C. as to the location of the bike. The trial court, in its Judgment Entry,
found that “[n]o evidence exists to show that he [appellant] really texted anyone and the
entire attempt was a poor effort to reduce [appellant’s] culpability.” Moreover, while
appellant testified that J.C. threatened him with a knife if he told where the Tomer bike
was located, appellant never told the police of such threat.
{¶76} In addition, Chief Haugh testified that appellant had a lot of road rash on
his hands, arms and face and that appellant admitted being present when the yellow dirt
bike was taken. Chief Haugh testified, with respect to the Tomer bike, that appellant
“said he helped [J.C.] get in through the window and that appellant had confessed.”
Transcript at 62. There was blood on the bike and appellant was covered with road
rash. According to the Chief, appellant indicated that he was part of the theft of the
Swanson dirt bike. However, in his written statement, appellant changed his story and
denied involvement.
{¶77} While appellant contends that J.C. was not truthful about his involvement,
the record is clear that appellant was also less than truthful about his involvement.
Appellant testified that his written statement to police was completely false. The trial
court, as trier of fact, was in the best position to assess credibility. The trial court, in its
January 5, 2012, Judgment Entry, indicated that it did not find J.C.’s character to be
without question, but found that after he was already sentenced, J.C. began to tell the
Tuscarawas County App. Case No. 2012 AP 02 0016 18
truth about the incidents. J.C. himself testified that he had nothing to gain by testifying.
We find that the trial court, as trier of fact, was in the best position to assess credibility.
{¶78} Based on the foregoing, we find that the finding of delinquency was not
against the manifest weight of the evidence.
{¶79} Appellant’s second assignment of error is, therefore, overruled.
III
{¶80} Appellant, in his third assignment of error, argues that the trial court erred
when it failed to consider community service in lieu of financial sanctions before
ordering appellant to pay court costs and fines, in violation of R.C. 2152.20(D).
{¶81} Pursuant to R.C. 2152.20, if a child is adjudicated delinquent, the court
may order the child to pay the costs of the action. See R.C. 2152.20(A)(2). The statute
further states that prior to the imposition of costs, the “trial court may hold a hearing if
necessary to determine whether a child is able to pay a sanction under this section.”
(Emphasis added). R.C. 2152.20(C). Furthermore, if a child who is adjudicated a
delinquent child is indigent, the court shall consider imposing a term of community
service under division (A) of section 2152.19 of the Revised Code in lieu of imposing a
financial sanction. R.C. 2152.20(D).
{¶82} Appellant argues that since he is indigent, the court should have
considered imposing a term of community service in lieu of costs. R.C. 2152.20(D)
provides: “If a child who is adjudicated a delinquent child is indigent, the court shall
consider imposing a term of community service * * * in lieu of imposing a financial
sanction under this section.” (Emphasis added.) In statutory construction, the word
“shall” is generally construed as mandatory. See Dorrian v. Scioto Conserv. Dist., 27
Tuscarawas County App. Case No. 2012 AP 02 0016 19
Ohio St.2d 102, 271 N.E .2d 834 (1971), paragraph one of the syllabus. The general
assembly's use of the word “shall” in R.C. 2152.20(D) indicates a mandatory
requirement, something the court must do. Accordingly, R.C. 2152.20(D) requires the
court to consider imposing a term of community service instead of a financial sanction if
the delinquent child is indigent. However, R.C. 2152.20(D) does not require the court to
impose a term of community service in lieu of a financial sanction; it simply indicates
that the court must consider it.
{¶83} In the case sub judice, the trial court was aware of appellant's indigency.
The trial court had previously appointed counsel and appellant’s mother had filed an
affidavit of indigency on appellant’s behalf. There is nothing in the record to suggest that
the trial court failed to consider community control instead of a financial sanction. See
In re Davis, 5th Dist. No. 06CA163, 2007-Ohio-6994, ¶ 35. Furthermore, R.C. 2152.20
does not require the trial court to conduct a separate hearing to determine appellant's
ability to pay nor does the statute mandate community control sanctions for an indigent
juvenile. See In re Seavolt, 5th Dist. Nos. 2006-CA-0010, 2006-CA-0011, 2007-Ohio-
2812.
{¶84} Appellant’s third assignment of error is, therefore, overruled.
IV
{¶85} Appellant, in his fourth assignment of error, argues that he was denied
effective assistance of trial counsel.
{¶86} Our standard of review for ineffective assistance claims is set forth in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio
adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
Tuscarawas County App. Case No. 2012 AP 02 0016 20
373 (1989). These cases require a two-pronged analysis in reviewing a claim for
ineffective assistance of counsel. First, we must determine whether counsel's
assistance was ineffective; i.e., whether counsel's performance fell below an objective
standard of reasonable representation and was violative of any of his essential duties to
the client. If we find ineffective assistance of counsel, we must then determine whether
or not the defense was actually prejudiced by counsel's ineffectiveness such that the
reliability of the outcome of the trial is suspect. This requires a showing that there is a
reasonable probability that but for counsel's unprofessional error, the outcome of the
trial would have been different. Id.{¶87} Appellant specifically contends that his trial counsel was ineffective in
failing to object to the prosecutor’s improper use of the fabricated Facebook messages
and in failing to object to imposition of court costs and restitution without first
considering community service.
{¶88} Based on our disposition of appellant’s first and third assignments of error,
appellant’s fourth assignment of error is moot.
Tuscarawas County App. Case No. 2012 AP 02 0016 21
{¶89} Accordingly, the judgment of the Tuscarawas County Court of Common
Pleas, Juvenile Division, is affirmed.
By: Edwards, J.
Delaney, P.J. and
Wise, J. concur
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JUDGES
JAE/d1002
[Cite as In re C.P., 2012-Ohio-5453.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: CORY P. :
:
:
:
:
: JUDGMENT ENTRY
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: CASE NO. 2012 AP 02 0016
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Tuscarawas County Court of Common Pleas, Juvenile Division, is
affirmed. Costs assessed to appellant.
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JUDGES