In re L.B. , 2014 Ohio 860 ( 2014 )


Menu:
  •  [Cite as In re L.B., 
    2014-Ohio-860
    .]
    IN THE COURT OF APPEALS OF OHIO
    SECOND APPELLATE DISTRICT
    MIAMI COUNTY
    IN THE MATTER OF :                              :
    :      Appellate Case No. 2013-CA-22
    L.B.                                    :
    :       Trial Court Case No. 21320453
    :
    :     (Juvenile Appeal from Miami County
    :     (Probate/Juvenile Court)
    :
    :
    ...........
    OPINION
    Rendered on the 7th day of March, 2014.
    ...........
    ELIZABETH C. SCOTT, Atty. Reg. 0076045, 120 West Second Street, Suite 603, Dayton, Ohio
    45402
    Attorney for Appellant, L.B.
    PAUL M. WATKINS, Atty. Reg. #0090868, 201 West Main Street, Troy, Ohio 45373
    Attorney for Appellee, State of Ohio
    .............
    FAIN, J.
    {¶ 1}       L.B. appeals from an adjudication of delinquency by reason of committing an
    act that, were she an adult, would constitute the offense of Vandalism, in violation of R.C.
    2
    2909.05(B)(1)(b). L.B. contends that the juvenile court erred by denying her Crim.R. 29 motion
    for acquittal because the State failed to present evidence sufficient to support her adjudication.
    She further claims that the adjudication is against the weight of the evidence.
    {¶ 2}       We conclude the State offered sufficient evidence to overcome L.B.'s Crim.R.
    29 motion for acquittal and to support the adjudication of delinquency on the charge of
    Vandalism. We also conclude that the adjudication is not against the manifest weight of the
    evidence. The judgment of the juvenile court is Affirmed.
    I. L.B. Cuts Off her Electronically Monitored House Arrest Ankle Bracelet
    {¶ 3}      In May 2013, L.B. was adjudicated as delinquent by reason of committing an
    act that would constitute Assault if she were an adult. She was placed on probation and was
    confined to her home under an order of Electronically Monitored House Arrest (EMHA). The
    juvenile probation department secured an ankle bracelet with an attached transmitter on L.B.’s
    leg for EMHA monitoring. On May 29, 2013, L.B. left her home, cut off the ankle bracelet with
    the transmitter and threw the device into a river. The device has not been recovered. She did
    not return home for fourteen hours.
    II. The Course of Proceedings
    {¶ 4}      L.B. was charged with being delinquent by reason of committing the offense of
    Vandalism. At the hearing, L.B. stipulated that she “cut off her ankle bracelet and threw it into
    the river, all without permission.” She further stipulated that she “knew she wasn’t to damage
    her ankle bracelet.”
    [Cite as In re L.B., 
    2014-Ohio-860
    .]
    {¶ 5}     Stephanie Henning, L.B.’s probation officer, testified that L.B. was placed on
    Level One Probation with EMHA, which entailed placing a transmitter attached to an ankle
    bracelet onto L.B.’s leg. She testified that her duties and responsibilities required her to monitor
    L.B.’s compliance with the court’s orders regarding probation, including remaining confined
    within her home. Henning testified that the removal of the transmitter prevented her from being
    able to monitor L.B. Henning testified that the transmitter was not recovered, and had not been
    able to be used for monitoring EMHA of L.B. or others. She further testified that the transmitter
    was necessary to her supervision and monitoring of L.B.’s home confinement.                     On
    cross-examination, defense counsel asked the following: “Fair to say that the ankle bracelet
    transmitter ... this. It’s not necessary for you to perform your duties as a probation officer,
    correct?” Henning replied, “correct.”
    {¶ 6}     Following the hearing, L.B. was adjudicated delinquent, and was placed on a
    period of supervision. L.B. appeals.
    III. Because L.B.’s Act Prevented her Probation Officer from
    Performing her Duty to Monitor L.B.’s Compliance with Electronically
    Monitored House Arrest, the State Proved that L.B. Committed
    an Act that Would Constitute Vandalism if She Were an Adult
    {¶ 7}     L.B.’s sole assignment of error is as follows:
    THE TRIAL COURT ERRED BY DENYING APPELLANT’S CRIM.R.
    29    MOTION         BECAUSE     THE     STATE      PRESENTED      INSUFFICIENT
    EVIDENCE TO ESTABLISH THE CHARGES, AS WELL AS THE TRIAL
    COURT’S DELINQUENCY FINDINGS WERE AGAINST THE MANIFEST
    4
    WEIGHT OF THE EVIDENCE.
    {¶ 8}    L.B. contends that the State failed to prove the elements of the offense of
    Vandalism, because there is no evidence that the loss of the transmitter prevented Henning from
    performing her job duties. She further argues that the evidence demonstrates that other means
    existed for monitoring her while on probation. She also argues that the adjudication is not
    supported by the weight of the evidence.
    {¶ 9}      Crim. R. 29(A) states that a court shall order an entry of judgment of acquittal
    if the evidence is insufficient to sustain a conviction for the charged offense. “Reviewing the
    denial of a Crim. R. 29 motion therefore requires an appellate court to use the same standard as is
    used to review a sufficiency of the evidence claim.” State v. Witcher, 6th Dist. Lucas No.
    L-06-1039, 
    2007-Ohio-3960
    . “In reviewing a claim of insufficient evidence, ‘[t]he relevant
    inquiry is whether, after reviewing the evidence in a light most favorable to the prosecution, any
    rational trier of fact could have found the essential elements of the crime proven beyond a
    reasonable doubt.’” (Internal citations omitted). State v. Crowley, 2d Dist. Clark No. 2007 CA
    99, 
    2008-Ohio-4636
    , ¶ 12.
    {¶ 10} “A weight of the evidence argument challenges the believability of the evidence
    and asks which of the competing inferences suggested by the evidence is more believable or
    persuasive.” State v. Cassell, 2d Dist. Clark No. 09CA0064, 
    2011-Ohio-23
    , ¶ 46. When a
    conviction is challenged on appeal as being against the manifest weight of the evidence, “ ‘[t]he
    court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers
    the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury
    clearly lost its way and created such a manifest miscarriage of justice that the conviction must be
    5
    reversed and a new trial ordered.’ ” State v. Thompkins, 
    78 Ohio St.3d 380
    , 387, 
    678 N.E.2d 541
     (1997), quoting State v. Martin, 
    20 Ohio App.3d 172
    , 175, 
    485 N.E.2d 717
     (1st Dist.1983).
    L.B. assumes, and we agree, that the Ohio jurisprudence relating to Crim.R. 29 motions and
    manifest-weight-of-the evidence reviews in criminal cases applies as well to juvenile delinquency
    adjudications.
    {¶ 11} The offense of Vandalism is proscribed by R.C. 2909.05, which provides in
    pertinent part as follows:
    (B)(1) No person shall knowingly cause physical harm to property that is
    owned or possessed by another, when either of the following applies:
    ***
    (b) Regardless of the value of the property or the amount of damage done,
    the property or its equivalent is necessary in order for its owner or possessor to
    engage in the owner's or possessor's profession, business, trade, or occupation.
    {¶ 12} L.B. relies on a holding of the Eighth District Court of Appeals wherein that
    court found insufficient evidence against a juvenile accused of Vandalism. In re J.A.J., 8th
    Dist. Cuyahoga No. 96506, 
    2011-Ohio-4824
    . In that case, several juveniles vandalized an
    outdoor learning lab at an elementary school by destroying bird houses and benches and by
    painting obscene graffiti. 
    Id.
     There was no evidence adduced at trial to indicate that J.A.J. had
    participated in the graffiti; only that he had damaged a bench and a birdhouse. The testimony of
    the school’s principal indicated that the outdoor area was rendered unusable for a period of time
    due to the obscene nature of the graffiti. Id. at 15. The court held that J.A.J.’s actions did not
    support an adjudication, because the bird houses and benches were not necessary to the
    6
    utilization of the outdoor area. Id. at 20-21. L.B. contends that, as in J.A.J., it might have
    been more “convenient” if the damage to the property had not occurred, but the damage did not
    prevent Henning from carrying out her duties, because the ankle bracelet transmitter was not the
    only means by which Henning could monitor her location.
    {¶ 13} We find In re J.A.J. to be distinguishable. Although Henning did not claim she
    was completely unable to perform the duties of her job because of the loss of the transmitter, and
    although she admitted that there are other methods for supervising children on probation, she did
    testify that the transmitter was necessary equipment for monitoring L.B. while L.B. was on
    EMHA. The transmitter would not be necessary for types of probation other than EMHA.
    Henning testified that it was her job to monitor whether L.B. followed the terms of her probation
    including home confinement. She testified that she was completely unable to monitor L.B. for
    fourteen hours, due to the fact that L.B. removed and discarded the transmitter.
    {¶ 14} The facts in this case are more akin to the facts in State v. Dunfee, 
    177 Ohio App.3d 239
    , 
    2008-Ohio-3615
    , 
    894 N.E.2d 359
     (2d Dist.). In that case, we held that a defendant
    was guilty of Vandalism, pursuant to R.C. 2909.05(B)(1)(b), when he damaged the window of a
    Sheriff’s Department cruiser, because the “cruiser could not be used for transporting prisoners or
    other persons in custody while the window was broken and * * * was unusable during the two
    hours that the window was being repaired.” Id. at ¶ 36. Despite the fact that the police
    department had twelve cruisers, we found that “a reasonable fact-finder could conclude that each
    cruiser was necessary for the functioning of the Sheriff’s Department.” Id.
    {¶ 15} Similarly, in State v. Glass, 10th District Franklin No. 11AP-890,
    
    2012-Ohio-2993
    , the court of appeals upheld a conviction based upon evidence that the
    7
    defendant had broken a seal over a residential electric meter and taken the seal from the home.
    Although the evidence was that the seal was not necessary for the provision of electricity to the
    residence, the court held that the seal was necessary “to protect the electric meter from harm, and
    unauthorized removal, and to prevent people from stealing electricity from the city [and thus] is
    necessary for the city to conduct its business of providing electricity to the public, in this case,
    [the person from whose house the meter was stolen].” Id. at ¶ 37.
    {¶ 16} The evidence in this case supports a finding that L.B. was subject to EMHA as a
    condition of her probation and that the transmitter was necessary to Henning’s job of monitoring
    L.B.’s compliance with the home confinement term of her probation. The issue is not that
    Henning could not perform any of her duties as a probation officer, but that without the
    transmitter, Henning was unable to perform her duty to monitor L.B. We agree with the juvenile
    court that the removal and subsequent disposal of the transmitter prevented Henning from
    performing the relevant task. We further conclude that L.B.’s actions prevented the juvenile
    probation department from being able to monitor other juveniles in the future. As in Dunfee,
    
    supra,
     each transmitter is necessary for the function of EMHA monitoring by the juvenile
    probation office.
    {¶ 17} Although L.B. incorporates an argument that her adjudication is against the
    manifest weight of the evidence, she really has no separate argument on that point. The facts in
    this case are not in dispute. The only issue is whether they make out the Vandalism offense.
    {¶ 18} L.B.’s sole assignment of error is overruled.
    III. Conclusion
    [Cite as In re L.B., 
    2014-Ohio-860
    .]
    {¶ 19} L.B.’s sole assignment of error having been overruled, the judgment of the trial
    court is Affirmed.
    .............
    DONOVAN and WELBAUM, JJ., concur.
    Copies mailed to:
    Elizabeth C. Scott
    Paul M. Watkins
    Hon. W. McGregor Dixon, Jr.
    Case Name:       In the Matter Of: L.B.
    Case No:                 Miami County App. No. 2013-CA-22
    Panel:                   Fain, Donovan, Welbaum
    Author:                  Mike Fain
    Summary:                 Trial court did not err in overruling Crim.R. 29 motion and adjudicating
    juvenile to have been delinquent. Act of cutting off Electronically
    Monitored House Arrest ankle bracelet and throwing it in the river
    prevented juvenile’s probation officer from performing her duty to monitor
    the juvenile’s compliance with the terms of the house arrest for fourteen
    hours. This act would have constituted the offense of Vandalism, in
    violation of R.C. 2909.05(B)(1)(b), had the juvenile been an adult.
    Affirmed.