In re E.C. ( 2013 )

[Cite as In re E.C., 2013-Ohio-2584.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. W. Scott Gwin, P. J.
Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
E. C.
Case No. CT2012-0048
AN ALLEGED DEPENDENT
CHILD OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Juvenile Division, Case No. 2122-
0047
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 20, 2013
APPEARANCES:
For Appellee For Appellant
D. MICHAEL MADDOX BRIAN BENBOW
PROSECUTING ATTORNEY BENBOW LAW OFFICES
ERIN WELCH 605 Market Street
ASSISTANT PROSECUTOR Zanesville, Ohio 43701
27 North Fifth Street, P. O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2012-0048 2
Wise, J.
{¶1} Appellant E.C., an alleged delinquent child, appeals his adjudication and
disposition on a felony obstructing official business charge, entered in the Muskingum
County Court of Common Pleas, Juvenile Division.
STATEMENT OF THE FACTS AND CASE
{¶2} At approximately 7:30 a.m. on January 13, 2012, Sherriff's Deputies went
to the home of juvenile E.C. for the purpose of arresting him on an outstanding warrant.
(T. at 9-10, 16). When they arrived, they found E.C. asleep in his bed. According to the
deputies, they woke him up and informed him that they were there to arrest him. (T. at
15). They gave E.C. an opportunity to get dressed but instead, he ran out of the house,
without any pants or shoes. (T. at 13-14). Officers described the conditions outside as
freezing temperatures, with snow and ice. (T. at 16). Both officers chased after E.C.
E.C. fell after he either slipped on the ice or stepped in a frozen puddle. He cut his foot
in the fall, which required that he be transported to the Emergency Room where he was
treated and received ten stitches. (T. at 47, 97). When the officers caught up to E.C. he
said "I give, I give." E.C. and the officers testified that they believed the run to be 400
yards. (T. at 99).
{¶3} Deputy Merry also fell down on the ice. He gave sworn testimony that he
fell onto his knees and stomach and described both of his knees as having swelling and
lacerations on his left knee from the fall. (T. at 46). He treated his injuries medically with
ice, ointment and bandages. (T. at 47). He further testified that he experienced pain on
a regular basis for approximately one week and could still feel the deep bruising and
soreness in his knees two weeks after. (T. at 50-51). Photographs were offered by the
Muskingum County, Case No. CT2012-0048 3
State and entered into evidence, documenting the Deputy's injuries. (T. at 57). These
photographs showed swelling and lacerations to the left knee. (T. at 58).
{¶4} On January 19, 2012, as a result of the above events, E.C. was charged,
in Case No. 2122-0047, as being a delinquent child by one count of obstructing official
business, a fifth degree felony, in violation of R.C. §2921.31(A) and one count of
resisting arrest, a first degree misdemeanor, in violation of R.C. §2921.33(B).
{¶5} On March 22, 2012, this matter proceeded to a hearing before a
Magistrate on the counts contained in Case No. 2122-0047.
{¶6} At the Dispositional hearing, sworn testimony was taken from E.C.'s
probation officer stating he has had E.C. on probation for "at least a year." (T. at 118).
He described E.C.’s compliance with probation rules "sporadic" at best, and explained
that he requested a warrant for E.C’s failure to report on December 1, 2011. (T. at 119).
The probation officer testified E.C. had tested positive for drugs, had been through a
drug treatment program, that this was the second time he had run, and stated E.C. was
age 17 at the time of trial. (T. at 125).
{¶7} At the conclusion of the trial, following testimony and argument, the
Magistrate issued an oral Decision from the bench finding Appellant to be a delinquent
child by violation of R.C. §2921.31(A), a felony of the fifth degree, when committed by
an adult.
{¶8} E.C., however, argued that the offenses of obstructing official business
and resisting arrest were allied offenses of similar import. (T. at 111). The Magistrate
agreed with the Juvenile in that the offenses were allied offenses of similar import,
finding that double jeopardy barred adjudication on both counts. (T. at 114). The State
Muskingum County, Case No. CT2012-0048 4
then orally dismissed the counts contained in Cases 2112-0755 and 2112-0803 after
the Magistrate's oral decision. (T. at 116-117).
{¶9} The Magistrate proceeded forward only on the felony obstructing official
business disposition, Case No 2122-0047, which was taken under advisement after
brief testimony.
{¶10} On March 26, 2012, the Magistrate issued a written Magistrate's Decision
on both the adjudication and the disposition. The Juvenile's Disposition was as follows:
{¶11} 1. A suspended commitment to the Ohio Department of Youth Services
for six months to age twenty-one with credit for time served in detention since January
13, 2012;
{¶12} 2. A ninety day detention sentence, with credit for time served in detention
since January 13, 2012, to be released on April 11, 2012, after 5:00p.m.;
{¶13} 3. Continue in his Mother's custody;
{¶14} 4. Continued community control on a new high probation, standard
conditions;
{¶15} 5. Successfully complete any substance abuse counseling arranged by his
mother, including any residential treatment at Bassett House, or otherwise;
{¶16} 6. Complete a letter of apology to Deputy Jonathan Merry within thirty
days;
{¶17} 7. Court Costs;
{¶18} 8. Continued driver's license suspension pending completion of all Court
orders or age twenty-one, including a good substance abuse report.
Muskingum County, Case No. CT2012-0048 5
{¶19} On March 27, 2012, the trial court adopted the Magistrate's March 26,
2012, Disposition.
{¶20} The Juvenile filed timely objections to the Magistrate's Decision on April 6,
2012, which timeliness the trial court acknowledged in its April 10, 2012, Judgment
Entry.
{¶21} On April 6, 2012, the Juvenile filed a written request for the transcript,
which was filed in the trial court on May 14, 2012.
{¶22} The Juvenile timely appealed Case No. 2122-0047 on April 27, 2012, in
Case No. CT2012-0024.
{¶23} The trial court granted a stay of the March 27, 2012, and April 10, 2012,
Judgment Entries on May 14, 2012, pending appeal in Case No. CT2012-0024.
{¶24} The trial court failed to include the April 19, 2012, Judgment in the Entry
staying the matter for purposes of appeal.
{¶25} On August 13, 2012, the Juvenile's Probation Officer filed a probation
violation against the Juvenile in Case No. 2122-0512 for an alleged curfew violation on
August 10, 2012, a time during the trial court's May 14, 2012, Stay.
{¶26} The Probation Officer filed a new complaint alleging a probation violation
instead of filing a motion within the case where the Juvenile would be facing the
probation revocation sanction.
{¶27} On October 5, 2012, the Magistrate detained the Juvenile on the probation
violation charge. The Juvenile has been detained ever since October 5, 2012.
{¶28} This Court on September 12, 2012 in Case No. CT2012-0024 dismissed
the Juvenile's Appeal under Civ.R. 53(D)(4).
Muskingum County, Case No. CT2012-0048 6
{¶29} The Juvenile filed Supplemental Objections on October 1, 2012.
{¶30} The April 6, 2012 Automatic Stay remained in effect until the trial court
overruled said objections on October 16, 2012.
{¶31} The Juvenile timely appealed the trial court's October 16, 2012, Judgment
Entry.
{¶32} The Juvenile moved the trial court for a stay pending appeal. The trial
court denied the stay. This Court denied a renewed Motion to Stay on December 13,
2012.
{¶33} Appellant now raises the following errors for review:
ASSIGNMENTS OF ERROR
{¶34} "I. THE TRIAL COURT'S OCTOBER 16, 2012 JUDGMENT ENTRY THAT
ADOPTED THE MAGISTRATE'S MARCH 26, 2012 DECISION IS AGAINST BOTH
THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. BY
ADJUDICATING APPELLANT OF THE FELONY ENHANCEMENT, THE TRIAL
COURT COMMITTED PREJUDICIAL ERROR.
{¶35} “II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WITH
REGARD TO DISPOSITION IN NOT DISMISSING THE FELONY CHARGE IN THE
BEST INTEREST OF THE CHILD.”
I.
{¶36} Appellant argues the trial court's decision is against the manifest weight
and sufficiency of the evidence. We disagree.
{¶37} A judgment supported by some competent, credible evidence will not be
reversed by a reviewing court as against the manifest weight of the evidence. C.E.
Muskingum County, Case No. CT2012-0048 7
Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must
not substitute its judgment for that of the trial court where there exists some competent
and credible evidence supporting the judgment rendered by the trial court. Myers v.
Garson, 66 Ohio St.3d 610, 1993-Ohio-9.
{¶38} 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, 678
N.E.2d 541, 1997–Ohio–52, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175,
485 N.E.2d 717.
{¶39} An appellate court's function when reviewing the sufficiency of the
evidence is to determine whether, after viewing 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. State v. Jenks (1991), 61 Ohio St.3d 259,
574 N.E.2d 492, paragraph two of the syllabus.
{¶40} In this case, the juvenile was charged with felony Obstructing Official
Business, pursuant to R.C. §2921.31, which provides:
{¶41} “(A) No person, without privilege to do so and with purpose to prevent,
obstruct, or delay the performance by a public official of any authorized act within the
public official's official capacity, shall do any act that hampers or impedes a public
official in the performance of the public official's lawful duties.
Muskingum County, Case No. CT2012-0048 8
{¶42} “(B) Whoever violates this section is guilty of obstructing official business.
Except as otherwise provided in this division, obstructing official business is a
misdemeanor of the second degree. If a violation of this section creates a risk of
physical harm to any person, obstructing official business is a felony of the fifth degree.”
{¶43} Upon review, this Court finds that there was sufficient evidence for the trial
court to find Appellant guilty of obstructing official business. Testimony was presented
that upon being awoken and informed that he was being placed under arrest, Appellant
immediately fled from the officers, out of the house and into the snowy, icy street.
When Appellant ran, he prevented the officers from arresting him, effectively
“hamper[ing] or imped[ing] a public official in the performance of the public official's [.]”
R.C. 2921.31(A).
{¶44} The record also indicates that when Appellant was attempting to flee he
caused a “risk of physical harm” to Deputy Merry. R.C. 2921.31(B). That is, when
Deputy Merry slipped on the ice and fell to the ground as he was attempting to capture
and restrain Appellant, there was a significant possibility that any of the deputies could
have suffered physical harm that could result in pain. In fact, Deputy Merry testified that
as a result of his fall, he injured both of his knees, with swelling and lacerations on his
left knee. (T. at 46). He stated that he treated his injuries with ice, ointment and
bandages. (T. at 47). He further testified that he experienced deep bruising, pain and
soreness in his knees for two weeks after the fall. (T. at 50-51).
{¶45} Further, Appellant caused a “risk of physical harm” to himself as well. As a
result of his own actions, Appellant slipped and fell, cutting his foot and requiring that he
be transported to the emergency room where he received ten (10) stitches. (T. at 97).
Muskingum County, Case No. CT2012-0048 9
{¶46} In sum, this Court finds that there was more than enough evidence for the
trial court to find Appellant was guilty of obstructing official business. We find that the
trial court's judgment that Appellant is a delinquent child based on acts which, if
committed by an adult, would constitute obstructing official business, is not against the
sufficiency or manifest weight of the evidence.
{¶47} Appellant's First Assignment of Error is not well taken.
II.
{¶48} In the Second Assignment of Error, Appellant argues that the trial court
erred in not dismissing the felony charge in the best interest of the child. We disagree.
{¶49} Appellant herein argues that the felony adjudication in this matter is not in
the best interest of the juvenile as such finding “will prevent the Juvenile from gaining
employment, entering the military and having a productive adulthood.” (Appellant’s Brief
at 16).
{¶50} While these sweeping generalizations may or may not be true as to the
effect of this felony disposition on the juvenile’s future, we find that the trial court acted
within its authority pursuant to R.C. §2152.19(A). Further, the trial court in this matter
suspended the D.Y.S. commitment sentence to allow the Juvenile the opportunity to
remain under community control.
Muskingum County, Case No. CT2012-0048 10
{¶51} Appellant’s Second Assignment of Error is overruled.
{¶52} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, Muskingum County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.
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JUDGES
JWW/d 0611
Muskingum County, Case No. CT2012-0048 11
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
:
E. C. : JUDGMENT ENTRY
:
:
AN ALLEGED DEPENDENT CHILD : Case No. CT2012-0048
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Juvenile Division, Muskingum County, Ohio, is
affirmed.
Costs assessed to Appellant.
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JUDGES