In re Spencer , 2011 Ohio 4421 ( 2011 )

[Cite as In re Spencer, 2011-Ohio-4421.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: JERMEL SPENCER. : APPEAL NO. C-100667
TRIAL NO. 10-8219Z
:
D E C I S I O N.
:
Criminal Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 2, 2011
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Appellee State of Ohio,
Susannah M. Meyer, for Appellant Jermel Spencer.
Please note: This case has been removed from the accelerated calendar.
D INKELACKER , Presiding Judge.
{¶1} Appellant Jermel Spencer was adjudicated a delinquent child for acts
that would have constituted vehicular vandalism under R.C. 2909.09 if committed
OHIO FIRST DISTRICT COURT OF APPEALS
by an adult. The state presented evidence that Spencer threw a softball-size piece of
asphalt at a car owned and driven by James Hicks. The piece of asphalt shattered
Hicks’s windshield in a circular pattern from the edge of the passenger-side window
to the center of the windshield and from top to bottom. Though Hicks was not
injured, the impact left glass on the passenger seat.
{¶2} In his first and second assignments of error, Spencer contends that the
state’s evidence was insufficient to support the adjudication of delinquency for vehicular
vandalism as a fourth-degree felony because the state failed to prove the element of
“serious physical harm to property” beyond a reasonable doubt. He argues that the trial
court improperly took judicial notice of that element. These assignments of error are not
well taken.
{¶3} R.C. 2909.09(B)(1) provides that “[n]o person shall knowingly, and
by any means, drop or throw any object at, onto, or in the path of any * * * vehicle[.]”
R.C. 2909.09(C) provides that “if the violation of this section creates a substantial
risk of physical harm to any person or the violation of this section causes serious
physical harm to property, vehicular vandalism is a felony of the fourth degree.”
{¶4} “Serious physical harm to property” is any physical harm to property
that “[r]esults in substantial loss to the value of the property or requires a substantial
amount of time, effort, or money to repair or replace,” or “[t]emporarily prevents the
use or enjoyment of the property or substantially interferes with its use or enjoyment
for an extended period of time.”1
{¶5} We agree that the trial court would have erred in taking judicial notice
that a shattered windshield constituted serious physical harm to property. This
court, in a case with similar facts, stated that “[w]hen a special circumstance
1 R.C. 2901.01(A)(6).
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OHIO FIRST DISTRICT COURT OF APPEALS
enhances the degree of an offense, it is an element of the crime that the state must
prove beyond a reasonable doubt.”2
{¶6} A court cannot take judicial notice of the elements of an offense.3
Nevertheless, although the court used the term “judicial notice,” it was not actually
taking judicial notice, but making a finding of fact. Regardless of the court’s
improper use of the term “judicial notice,” the state’s evidence supported a factual
finding that, by shattering Hicks’s windshield, Spencer had caused serious physical
harm to his car.
{¶7} Spencer did not just throw a small rock, instead he “launched” a
softball-sized piece of asphalt into Hicks’s windshield. Contrary to Spencer’s
contention that the damage was only “a small hole,” the evidence showed that the
windshield had a large, circular fracture. Hicks stated that the “windshield didn’t
actually break completely, but [the asphalt] caused a huge hole in it. The asphalt
kind of sunk in and it penetrated the inside of it but not the outside totally. It just
cracked the outside. And all the glass was fine and shattered on the seat and the
dashboard.”
{¶8} A police officer stated that the “entire passenger side window was
shattered from the edge of the passenger side to the center of the windshield, top to
bottom, all the way in a circular pattern from a circular point where something had
hit it.” She stated that she could see where “the impact had occurred and where it
had shattered outward as in a spider web or spider web kind of fracture.”
{¶9} This evidence was sufficient to show that Spencer had caused physical
harm to the car that temporarily prevented its use or enjoyment. Consequently, we
hold that the state presented sufficient evidence, when viewed in a light most
2State v. Wilson, 1st Dist. No. C-061000, 2007-Ohio-6339, ¶11.
3State v. Boyd, 6th Dist. No. OT-06-034, 2008-Ohio-1229, ¶40-48; State v. Shaw, 7th Dist. No.
03 JE 14, 2004-Ohio-5121, ¶55.
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OHIO FIRST DISTRICT COURT OF APPEALS
favorable to the prosecution, to prove beyond a reasonable doubt that Spencer had
caused serious physical harm to property.4 We overrule Spencer’s first and second
assignments of error.
{¶10} In his fifth assignment of error, Spencer again argues that the
evidence was insufficient to support his adjudication of delinquency for vehicular
vandalism as a fourth-degree felony. He argues that the state failed to prove beyond
a reasonable doubt that he had created a substantial risk of physical harm to any
person. This assignment of error is not well taken.
{¶11} This argument is actually academic since the state proved the element
of “serious physical harm to property” beyond a reasonable doubt, which elevated the
level of the offense to a fourth-degree felony. Nevertheless, the state also proved this
element, as well.
{¶12} “Physical harm to persons” is “any injury, illness or other
physiological impairment, regardless of its gravity or duration.”5 A substantial risk is
“a strong possibility, as contrasted with a remote or significant possibility, that a
certain result may occur or that certain circumstances may exist.”6
{¶13} As the trial court stated, “A large rock shattering a windshield of a
moving vehicle subjects the driver to the very real possibility of crashing, perhaps
hitting other persons or vehicles.” The fact that Hicks or any other person did not
suffer physical harm does not mean that a substantial risk of harm did not exist.7
{¶14} Consequently, we hold that the state presented sufficient evidence,
when viewed in a light most favorable to the prosecution, to prove beyond a
4 See In re Washington, 75 Ohio St.3d 390, 392, 1996-Ohio-186, 662 N.E.2d 346; In re Shad, 1st
Dist. Nos. C-080965 and C-081174, 2009-Ohio-3611, ¶15-17.
5 R.C. 2901.01(A)(3).
6 R.C. 2901.01(A)(8).
7 See Wilson, supra, at ¶10-11.
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OHIO FIRST DISTRICT COURT OF APPEALS
reasonable doubt that Spencer had created a substantial risk of harm to any person.8
Consequently, we overrule Spencer’s fifth assignment of error.
{¶15} In his third and fourth assignments of error, Spencer contends that
his adjudication of delinquency for vehicular vandalism as a fourth-degree felony
was against the manifest weight of the evidence. He argues that the state failed to
present any competent, credible evidence showing that he had caused serious
physical harm to property or that he had created a substantial risk of physical harm
to persons. This assignment of error is not well taken.
{¶16} After reviewing the record, we cannot say that the trier of fact lost its
way and created such a manifest miscarriage of justice that we must reverse
Spencer’s adjudication and order a new trial. Therefore, the adjudication is not
against the manifest weight of the evidence.9 We overrule Spencer’s third and fourth
assignments of error and affirm the adjudication of delinquency.
Judgment affirmed.
H ILDEBRANDT and C UNNINGHAM , JJ., concur.
Please Note:
The court has recorded its own entry this date.
8See Washington, supra, at 392; In re Shad, supra, at ¶15-17.
9See State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541; Shad, supra, at
¶15.
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