In re M.M.

[Cite as In re M.M., 2018-Ohio-1110.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
CASE NO. 1-17-56
IN RE:
M.M. OPINION
Appeal from Allen County Common Pleas Court
Juvenile Division
Trial Court No. 2012-JG-29515
Judgment Affirmed
Date of Decision: March 26, 2018
APPEARANCES:
Joseph A. Benavidez for Appellant
Kyle B. Thines for Appellee
Case No. 1-17-56
PRESTON, J.
{¶1} Defendant-appellant, M.M., appeals the November 13, 2017 judgment
entry of the Allen County Court of Common Pleas, Juvenile Division, lifting the
stay of the adult portion of his serious-youthful-offender-dispositional sentence. For
the reasons that follow, we affirm.
{¶2} On March 14, 2012, the Allen County Grand Jury indicted M.M. on
four counts, including: Count One of aggravated burglary in violation of R.C.
2911.11(A)(1), a first-degree felony if committed by an adult, Count Two of
abduction in violation of R.C. 2905.02(A)(1), a third-degree felony if committed by
an adult, Count Three of rape in violation of R.C. 2907.02(A)(2), a first-degree
felony if committed by an adult, and Count Four of aggravated robbery in violation
of R.C. 2911.01(A)(3), a first-degree felony if committed by an adult. (Doc. No.
1). Each count alleged that M.M., being 13 years old at the time of the offenses,
was subject to a serious-youthful-offender designation. (Id.).
{¶3} On March 23, 2012, M.M. appeared for arraignment and denied the
charges. (Doc. No. 18).
{¶4} On October 24, 2012, M.M. withdrew his denials, admitted the charges,
and pleaded delinquent, under a written plea agreement, to Counts Three and Four.
(Doc. No. 57). In exchange for his change of pleas, the State agreed to dismiss
Counts One and Two. (Doc. No. 59). The trial court accepted M.M.’s delinquency
pleas, found him to be a delinquent child by reason of his admission to Counts Three
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and Four, dismissed Counts One and Two, and ordered a pre-dispositional report.
(Id.).
{¶5} After a hearing on November 13, 2012, the trial court found M.M. to be
a serious youthful offender and imposed a blended sentence. (Doc. No. 67). The
trial court committed M.M. to the legal care and custody of the Ohio Department of
Youth Services (“DYS”) for a minimum period of three years of commitment as to
Count Three and a minimum period of three years of commitment as to Count Four
and ordered that M.M. serve the terms consecutively for an aggregate minimum
period of commitment of six years not to exceed M.M.’s 21st birthday. (Id.). As
for the adult sentence, the trial court sentenced M.M. to ten years of incarceration
as to Count Three and five years of incarceration as to Count Four and ordered that
M.M. serve the terms consecutively for an aggregate sentence of 15 years. (Id.).
The trial court stayed under R.C. 2152.13(D)(2)(a)(iii) the adult portion of the
sentence pending M.M.’s successful completion of the juvenile disposition. (Id.).
The trial court filed an amended judgment entry of disposition on December 11,
2012 “to add the provision that the Serious Youthful Offender is to complete sex
offender treatment prior to his release from the secure custody of the Ohio
Department of Youth Services.” (Doc. No. 72).
{¶6} On December 12, 2012, M.M. filed a notice of appeal. (Doc. No. 73).
(See also Doc. No. 77). According to this court’s records, M.M. voluntarily
dismissed his appeal.
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{¶7} M.M. filed a motion for judicial release on December 1, 2015, which
the trial court denied on December 17, 2015. (Doc. Nos. 89, 90).
{¶8} At the request of the director of DYS, the State filed on June 12, 2017
a motion to invoke the adult portion of M.M.’s serious-youthful-offender-
dispositional sentence. (Doc. No. 91); (State’s Ex. 2). After a hearing on October
18, 2017, the trial court invoked M.M.’s adult sentence after making the necessary
findings under R.C. 2152.14. (Doc. No. 119). The trial court modified the adult
sentence imposed in its December 11, 2012 judgment entry of disposition and
sentenced M.M. to ten years of incarceration as to Count Three and five years of
incarceration as to Count Four and ordered that M.M. serve the terms concurrently
for an aggregate sentence of ten years. (Id.). The trial court ordered that M.M. be
transferred to the Ohio Department of Rehabilitation and Correction. (Id.). On
November 13, 2017, the trial court filed an amended judgment entry of sentence
correcting a typographical error. (Doc. No. 120).
{¶9} On November 15, 2017, M.M. filed a notice of appeal. (Doc. No. 121).
He raises two assignments of error for our review, which we will address together.
Assignment of Error No. I
The Trial Court Erred in Finding by Clear and Convincing
Evidence that the Appellant’s Conduct While in Institutional
Care Has Created a Risk to the Safety and Security of the
Institution
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Assignment of Error No. II
The Trial Court Erred in Finding by Clear and Convincing
Evidence that the Appellant’s Conduct Demonstrates that He is
Unlikely to be Rehabilitated During the Remaining Period of
Juvenile Jurisdiction
{¶10} In his assignments of error, M.M. argues that the trial court erred by
imposing the adult portion of his serious-youthful-offender-dispositional sentence.
In particular, he argues that there is not clear and convincing evidence supporting
the trial court’s conclusions that M.M. engaged in conduct that created a substantial
risk to the safety or security of the institution and that M.M.’s conduct demonstrates
that he is unlikely to be rehabilitated during the remaining period of juvenile
jurisdiction.
{¶11} As an initial matter, we must address the standard of review applied to
a trial court’s imposition of the adult portion of a serious-youthful-offender-
dispositional sentence. The Supreme Court of Ohio has stated that “the invocation
proceeding [is] similar to the proceedings incident to a criminal court’s imposition
of a suspended sentence.”1 In re J.V., 134 Ohio St. 3d 1, 2012-Ohio-4961, ¶ 16.
Ohio courts of appeal review the imposition of a suspended sentence for an abuse
1
“In Ohio, courts typically impose two sentences on a criminal defendant: a prison term and a period of
postrelease control.” In re J.V., 134 Ohio St. 3d 1, 2012-Ohio-4961, ¶ 17, citing R.C. 2967.28(B). “During
the period of postrelease control, the defendant is subject to conditions.” Id., citing R.C. 2967.28(D)(1).
“Violation of these conditions may result in the trial court imposing a prison term.” Id., citing R.C.
2967.28(F)(3). “This approach has been characterized as a carrot-and-stick approach because the carrot of
rehabilitation without institutional confinement is offered as an inducement to good behavior, even as the
trial court retains the stick of imposing institutional confinement. We view the blended sentences imposed
on serious youthful offenders in much the same way.” Id., citing In re D.H., 120 Ohio St. 3d 540, 2009-Ohio-
9, ¶ 38.
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of discretion. See, e.g., State v. Walton, 9th Dist. Lorain No. 09CA009588, 2009-
Ohio-6703, ¶ 13. See State v. Michael, 3d Dist. Henry No. 7-13-05, 2014-Ohio-
754, ¶ 21. As such, we review a trial court’s decision to impose the adult portion of
a serious-youthful-offender sentence for an abuse of discretion. See In re C.P., 131
Ohio St. 3d 513, 2012-Ohio-1446, ¶ 82 (noting that the juvenile court “has the
discretion not to invoke the adult sentence” under Ohio’s serious-youthful-offender
scheme); In re Raheem L., 1st Dist. Hamilton C-100608, 2013-Ohio-2423, ¶ 17
(Cunningham, P.J., dissenting) (noting that “the juvenile court has the discretion to
avoid invoking the adult penalty”). An abuse of discretion suggests that a decision
is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St. 2d 151,
157-158 (1980).
{¶12} “A serious-youthful-offender disposition consists of a ‘blended’
sentence: a traditional juvenile disposition and a stayed adult sentence.” In re D.H.,
120 Ohio St. 3d 540, 2009-Ohio-9, ¶ 2, citing R.C. 2152.13(D)(2). “Any adult
sentence that the trial court imposes through R.C. 2152.13(D)(2)(a)(i) is only a
potential sentence—it is stayed pursuant to R.C. 2152.13(D)(2)(a)(iii) ‘pending the
successful completion of the traditional juvenile dispositions imposed.’” Id. at ¶ 30,
quoting R.C. 2512.13(D)(2)(a)(iii). “R.C. 2152.13(D)(2)(a)(ii) requires the court to
impose a juvenile disposition when it imposes an adult sentence; how the juvenile
responds to that disposition will determine whether the stay is lifted on the adult
sentence.” Id.
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{¶13} “The court may enforce the adult portion of the sentence at a later time
if the juvenile commits certain acts that indicate that the juvenile disposition has
been unsuccessful in rehabilitating him.” Id. at ¶ 2, citing R.C. 2152.14. “R.C.
2152.14(E) governs under what instances a juvenile court may invoke the adult
portion of a serious youthful offender’s sentence for failure to successfully complete
the traditional juvenile disposition.” Id. at ¶ 31. “The statute requires a finding by
clear and convincing evidence that the juvenile is ‘unlikely to be rehabilitated during
the remaining period of juvenile jurisdiction’ and that the juvenile has engaged in
further bad conduct pursuant to R.C. 2512.14(A) or (B).” Id., quoting R.C.
2152.14(E). R.C. 2152.14(E) provides, in relevant part:
(E)(1) The juvenile court may invoke the adult portion of a person’s
serious youthful offender dispositional sentence if the juvenile court
finds all of the following on the record by clear and convincing
evidence:
(a) The person is serving the juvenile portion of a serious youthful
offender dispositional sentence.
(b) The person is at least fourteen years of age and has been admitted
to a department of youth services facility, or criminal charges are
pending against the person.
(c) The person engaged in the conduct or acts charged under division
(A), (B), or (C) of this section, and the person’s conduct demonstrates
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that the person is unlikely to be rehabilitated during the remaining
period of juvenile jurisdiction.
R.C. 2152.14(E)(1).
The conduct that can result in the enforcement of an adult sentence
includes committing, while in custody or on parole, an act that is a
violation of the rules of the institution or the conditions of supervision
and that could be charged as any felony or as a first-degree
misdemeanor offense of violence if committed by an adult[.]
In re D.H. at ¶ 36, citing R.C. 2152.14(A)(2)(a), (B)(1). In the alternative,
“engaging in conduct that creates a substantial risk to the safety or security of the
institution, the community, or the victim” constitutes conduct that can result in the
enforcement of an adult sentence. Id., citing R.C. 2152.14(A)(2)(b) and (B)(2).
{¶14} “[U]nder R.C. 2152.14(E)(2), the juvenile court has the discretion to
‘modify the adult sentence the court invokes to consist of any lesser prison term that
could be imposed for the offense.’” In re C.P., 131 Ohio St. 3d 513, 2012-Ohio-
1446, ¶ 81.
{¶15} “The clear-and-convincing-evidence standard allowed by R.C.
2152.14(E)(1) is less rigorous [than the beyond-a-reasonable doubt standard
required in criminal trials], though stronger than a mere preponderance-of-the-
evidence standard.” In re J.V., 134 Ohio St. 3d 1, 2012-Ohio-4961, at ¶ 20. “[C]lear
and convincing evidence is that ‘which will produce in the mind of the trier of facts
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a firm belief or conviction as to the facts sought to be established.’” Id., quoting
Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. “The
standard requires the judge to have a firm belief or conviction about the facts
adduced.” Id.
{¶16} Ohio courts of appeal that have reviewed a trial court’s clear-and-
convincing conclusions in other contexts will not disturb that conclusion when it is
supported by evidence that is legally sufficient to satisfy the clear and convincing
standard of proof. See, e.g., Cross at 477 (“Where the degree of proof required to
sustain an issue must be clear and convincing, a reviewing court will examine the
record to determine whether the trier of facts had sufficient evidence before it to
satisfy the requisite degree of proof.”); State v. James, 3d Dist. Van Wert No. 15-
00-02, 2000 WL 681646, *2 (May 25, 2000) (“If a trial court’s determination that a
defendant is a sexual predator is supported by evidence legally sufficient to meet
the clear and convincing standard of proof, it will be not be disturbed by a reviewing
court.”); In re Gambrel, 3d Dist. Logan Nos. 8-02-32 and 8-02-33, 2003-Ohio-1025,
¶ 6 (“In addition, when ‘the degree of proof required to sustain an issue must be
clear and convincing, a reviewing court will examine the record to determine
whether the trier of facts had sufficient evidence before it to satisfy the requisite
degree of proof.’ Thus, we are required to determine whether the evidence was
sufficient for the trial court to make its findings by a clear and convincing degree of
proof.”), quoting Cross at 477.
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{¶17} It is undisputed that M.M. was over 14 years of age and was serving
the juvenile portion of his serious-youthful-offender-dispositional sentence at the
time of the invocation hearing. (See Oct. 18, 2017 Tr. at 1-2); (State’s Exs. 1, 2).
Compare In re A.A.W., 8th Dist. Cuyahoga No. 101580, 2015-Ohio-1297, ¶ 26. On
appeal, M.M. argues that there is not clear and convincing evidence supporting the
trial court’s conclusion that M.M. engaged in conduct that created a substantial risk
to the safety or security of the institution. He argues that “the evidence presented
to the Court did not rise to the level of clear and convincing evidence” because
“there was no testimony presented by anyone whom had witnessed any of the
alleged acts nor of anyone whom [M.M.] admitted any such acts to” and “M.M.
denied any such incidents or stated that the incidents did not rise to the allegations
made in any of the reports admitted into evidence.” (Appellant’s Brief at 5). M.M.
also argues that there is not clear and convincing evidence supporting the trial
court’s conclusion that M.M.’s conduct demonstrates that he is unlikely to be
rehabilitated during the remaining period of juvenile jurisdiction. In particular, he
contends that “there was no therapy or programs that [M.M.] was asked to complete
that he did not successfully complete.” (Appellant’s Brief at 7).
{¶18} Based on the evidence presented at the hearing, the trial court
concluded that there is clear and convincing evidence that M.M.’s conduct created
a substantial risk to the safety and security of the institution and that M.M.’s conduct
demonstrates that he is unlikely to be rehabilitated during the period of juvenile
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jurisdiction. In reaching that conclusion, the trial court focused on the DYS records
documenting M.M.’s behavior and noted:
Those records document the lengthy history of incidents of disruptive
behavior of [M.M.] while in institutional care with [DYS]. * * * As
recently as October 11, 2017 his behavior required that duty
corrections officer [sic] to physically secure [M.M.] and summon
other staff assistance to control him and escort him to his locked room.
He has repeatedly exposed his genitals to employed staff members,
contractual staff and volunteers working at the facility (1/31/2017,
1/12/2017, 1/29/2017, 1/26/2015, 8/6/2014, 4/22/2013, 2/3/2014). He
has repeatedly refused to come out of his room and participate in
institutional programming designed to assist in his rehabilitation. He
has been physical and threatening with staff (7/26/2015, 5/28/2017,
5/29/2017, 3/20/2015) and other residents (7/17/2016, 2/18/2016,
1/8/2013, 7/29/2017).
(Doc. No. 118).
{¶19} After reviewing the record, we conclude that there is sufficient
evidence supporting the trial court’s conclusions that there is clear and convincing
evidence that M.M. engaged in conduct that created a substantial risk to the safety
or security of the institution and that M.M.’s conduct demonstrates that he is
unlikely to be rehabilitated during the remaining period of juvenile jurisdiction.
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{¶20} At the October 18, 2017 hearing, Amy Ast (“Ast”), the Bureau Chief
of Facility Operations with DYS, testified that it is her job to “review serious
incidents” that occur at DYS facilities. (Oct. 18, 2017 Tr. at 4-5). She described
that “a youth behavioral incident report” or “YBIR” is “a report that staff will write
if a youth violates a rule” and “depending on the level rule infraction * * * it has
certain consequences that goes with it.” (Id. at 5). She testified that “there are
several rule violations,” including “rule violations that are considered severe, there’s
rule violations considered high, some moderate and * * *, some low.” (Id. at 8).
“So, on a YBIR you’ll not only see a summary of what the youth did but you will
also see the rule violation that he’s charged with and then any consequences staff
issue.” (Id. at 5-6). Ast identified State’s Exhibit 5 as “a packet” of YBIRs
regarding M.M. (Id. at 6-7).
{¶21} Ast summarized for the court a number of the incidents described in
State’s Exhibit 5. In particular, she testified that one YBIR describes an incident
involving M.M. on May 6, 2017:
[M.M.] was upset due to receiving this YBIR prior on Wednesday 5/3,
and * * * threatened staff that he had something for her and said just,
just wait. Staff asked are you threating [sic] me and [M.M.] stated
that it was an F’ing promise because you made me not make my day.
* * * He was charged with offensive conduct, and threating [sic]
conduct, and lost privileges for up to five (5) days.
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(Id. at 7-8, 10). On May 10, 2017, M.M. “became upset because staff was
conducting a search of his room” “and stated ‘you * * * stupid bitch * * * I should
spit in your fucking face.’” (Id. at 11). On May 21, 2017, M.M. threatened another
DYS staff member after he refused to return to his room after “shower time.” (Id.
at 12-13). A May 28, 2017 YBIR involving M.M. reflects that M.M. “was trying to
trap staff in the closet” and “was using offensive language toward staff” when he
was told that he could not have a television. (Id. at 13). On May 29, 2017, M.M.
“[s]lapped staff’s hands off [a] chair and hit staff in the chest” when he was
instructed to not sit on the chair. (Id. at 14-15). Based on that offense, M.M. “was
charged with assault, offensive conduct, threatening conduct, refusing to follow
staff instructions and being out of area” and “went to what [is] call[ed] an
administrative hearing, which is the highest level of discipline.” (Id. at 15).
{¶22} On June 22, 2017, M.M. was involved in an incident in which he made
“a false statement” about a staff member in which he referred to her as “being ‘his
woman.’” (Id. at 16-17). On July 2, 2017, a YBIR was issued as a result of M.M.
engaging in “[o]ffensive conduct and threatening conduct” for making threats to a
staff member. (Id. at 18). The next day, a YBIR was issued as a result of M.M.
engaging in “[o]ffensive conduct, threatening conduct, being out of area, [and]
refusing to follow staff directions” after he “was upset about not getting his made
[sic] day snack, and began cussing at staff, threatening staff, and refus[ing] to go
back upstairs to his pod.” (Id.).
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{¶23} On July 20, 2017, a YBIR was issued alleging “[d]amage or
destruction of property, offensive conduct, misuse and abuse of property, [and]
refusing to follow staff instructions” when M.M. “went and threw water all over ‘A’
pod, ripped the buffer pad off and proceeded to scratch up the floor that he had
already waxed” after he was told “that he would no longer be” cleaning with another
youth. (Id. at 18-19). The next day, a YBIR was issued when M.M. called a staff
member “a bitch times three (3), and threatened to beat his ass and then pushed
[him] times two * * *.” (Id. at 19).
{¶24} Ast testified that “[a]fter conducting a video review on 7/31, it was
discovered that on 7/29, approximately 10:15 a.m. [M.M.] assaulted [another youth]
by hitting him in the head area and pushing him * * *.” (Id. at 20). On September
8, 2017, M.M. threatened to punch a staff member. (Id.). Finally, on September
20, 2017, a YBIR was issued alleging that M.M. engaged in “[o]ffensive conduct,
threatening conduct, out of area, [and] refusing to follow staff instructions” after
M.M. refused to discontinue a phone call and “cussed” at and threatened a staff
member. (Id. at 21).
{¶25} Ast testified that DYS also uses “Youth Incident Summary Reports”
to document more serious incidents. (Id. at 22). Ast identified State’s Exhibit 4 as
the Youth Incident Summary Reports regarding M.M. from 2012 until October 11,
2017. (Id. at 23-24). She summarized a number of the Youth Incident Summary
Reports described in State’s Exhibit 4. In particular, on January 12, 2017, M.M.
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made “inappropriate sexual comments” to a staff member. (Id. at 24-25). On
January 21, 2017, M.M. was “placed in seclusion” for assaulting another youth. (Id.
at 26-28). On January 31, 2017, a Youth Incident Summary Report was issued
alleging that M.M. “engaged in sexual misconduct” when he “exposed his penis to
[a staff member] and made a disrespectful comment as he pleasured himself.” (Id.
at 29).
{¶26} On March 19 and April 18, 2017, Youth Incident Summary Reports
were issued as a result of M.M.’s refusal to obey staff orders. (Id. at 31-32). On
May 13, 2017, a report was issued alleging that M.M. was “out of area and
complicit[]” in an incident in which another youth’s door was “kicked open.” (Id.
at 33). Ast testified that M.M. was observed in security-video footage kicking the
door. (Id. at 34). A few days later, on May 21, 2017, M.M. threatened a staff
member by telling “her that she better not come to work the following day because”
he is “tired of her” and has “something planned for her.” (Id. at 40). The next day,
M.M. “climbed up on the sink on the deck and refused to come down” requiring
staff to “restrain[ M.M. to] bring[] him down on the mat.” (Id. at 36). When M.M.
was being escorted to his room after that incident, he “attempted to walk out.” (Id.
at 36-37). A staff member received “a small cut on his hand” as a result of the
incident. (Id. at 37).
{¶27} On July 29, 2017, staff “received a grievance from” another youth
alleging that M.M. assaulted him. (Id. at 40). According to Ast, after viewing
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security-camera footage, M.M. was observed striking the youth in the face. (Id. at
41).
{¶28} In August 2017, M.M. was transferred to the Indian River Juvenile
Correctional Facility (“Indian River JCF”) from the Circleville Juvenile
Correctional Facility (“Circleville JCF”). (Id. at 41-42, 63). Ast testified that
juveniles are transferred to another DYS facility “usually [as the] result of
behavioral problems.” (Id. at 42). After his transfer, on October 6, 2017, a Youth
Incident Summary Report was generated alleging that M.M. “picked up” contraband
from another youth when the other youth was to be strip searched. (Id. at 42-47).
On October 11, 2017, M.M. allegedly engaged in threatening behavior toward a
staff member requiring the staff member to place M.M. in “a bear hug”; however,
M.M. “resisted and cause[d] both [M.M.] and staff to fall to the ground.” (Id. at 47-
48).
{¶29} On cross-examination, Ast testified that every youth incarcerated at
DYS undergoes
a review with their treatment team; which involves their Unit
Manager, the Unit Staff that work on that Unit, * * * Case Manager,
if there is a Case Manager assigned, * * * some of the Teachers if he’s
in school, or if he’s a graduate it may be his Boss on his particular job.
Those, all those people attend a month treatment team on him. So,
yes there is a review.
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(Id. at 54). Ast testified that she met with M.M. to discuss his behavior when she
was appointed as the temporary superintendent of Circleville JCF in May 2017. (Id.
at 55). According to Ast, “[T]he previous superintendent had already requested that
[M.M.’s adult sentence] be invoked.” (Id.). Ast “told him the importance of
stopping the behavior, not being sexually inappropriate, * * *, acting appropriate,
not having disruptive behavior” but she testified that “his behavior reports don’t
suggest he was successful with that.” (Id.).
{¶30} On re-direct examination, Ast testified that there were at least two
separate incidents in which M.M. assaulted another youth. (Id. at 60). Ast testified
that she met with M.M. when she became the temporary superintendent of
Circleville JCF because she was concerned that he was “not internalizing” his
rehabilitative treatment, which is the expectation for youths incarcerated with DYS.
(Id. at 60-61).
{¶31} Next, Chris Freeman (“Freeman”), the superintendent of Indian River
JCF testified that M.M. was transferred to Indian River JCF in August 2017 because
“he was having behavioral issues * * * at Circleville and [transferring to Indian
River JCF] brought a [sic] opportunity for a different start.” (Id. at 63). However,
since his transfer to Indian River JCF in August 2017, M.M. “received eighteen (18)
YBIRs.” (Id.). According to Freeman, “[M]ost of the * * * offenses were offensive
conduct primarily toward female staff[,] threatening conduct, just refusing to follow
staff instructions.” (Id. at 63).
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{¶32} On cross-examination, Freeman testified that he met with M.M. on
September 7 and October 6, 2017 regarding his behavior. (Id. at 67). According to
Freeman, he discussed with M.M. “that he need[ed] to stay out of trouble” because
the adult portion of M.M.’s serious-youthful-offender-dispositional sentence “was
requested to be invoked from Circleville.” (Id. at 68-69).
{¶33} As its next witness, Dr. Alice Chambly (“Dr. Chambly”) testified on
behalf of the State that she is a psychology supervisor with DYS. (Id. at 70). She
testified that DYS utilizes a two-phased sex-offender-treatment program. (Id. at
71). The first phase of the treatment program requires offenders to acknowledge
their crime “to the satisfaction of a panel of clinicians.” (Id.). According to Dr.
Chambly, M.M. successfully completed the first phase of the treatment program
despite “an incident of sexual misconduct.” (Id. at 72). Dr. Chambly testified that
M.M. also successfully completed the second phase of the treatment program
notwithstanding “concern that his relapse prevention plan was not as strong as it
needed to be.” (Id. at 72-73).
{¶34} Dr. Chambly identified State’s Exhibits 3A and 3B as case notes
regarding M.M. from November 14, 2012 through February 5, 2017. (Id. at 74-75).
She testified that a note prepared on December 20, 2013 regarding M.M.’s
completion of the second phase of the sex-offender-treatment program indicates
“that he would pass contingent on doing some additional work on he’s [sic] relapse
prevention plan.” (Id. at 77-78). Dr. Chambly testified that a note prepared on May
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15, 2014 reflects that M.M. successfully completed the contingencies identified in
the December 20 note; however, he was to “continue to do individual work” “[b]ut
not within the context of the sex offender program.” (Id. at 78). When asked
whether M.M. has been rehabilitated, Dr. Chambly stated that “[h]e’s continued to
have incidences of sexually inappropriate behavior” despite his completion of the
treatment program. (Id. at 81-82).
{¶35} Dr. Chambly testified that M.M. also “participated in substance abuse
treatment,” “cognitive behavior therapy,” “victim awareness,” and “anger and
aggression treatment.” (Id. at 81).
{¶36} On cross-examination, Dr. Chambly testified that, although M.M.
completed his sex-offender-treatment program, he “refused the sexual misconduct
curriculum follow [sic] incidences.” (Id. at 83). She testified that M.M. “hasn’t
been successful in his management of his * * * sexual behavior.” (Id. at 85).
{¶37} On re-direct examination, Dr. Chambly testified that, although M.M.
completed his sex-offender-treatment program in 2014, M.M., in January 2017,
“exposed himself and made inappropriate comments [to a teacher] while he was
masturbating.” (Id. at 89).
{¶38} M.M. testified on his own behalf and asserted that “some of the
incidents” as described by Ast did not occur as the reports reflect. (Id. at 90, 93).
He testified that, regarding the incident report stating that he assaulted another
youth, they were “horse playing” and not fighting. (Id. at 94). According to M.M.,
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he participated in an administrative hearing regarding that incident during which he
explained that he and the other youth “were horse playing” and the other youth
“ended up telling [DYS staff] that he was playing that he didn’t really mean that
[M.M.] assaulted him, he was just irritated at the time.” (Id. at 95). Regarding the
second incident in which it was alleged that he assaulted another youth with a stick,
M.M. testified that he “was horse-playing then.” (Id.). M.M. also denied that he
exposed himself to the teacher. (Id. at 109). According to M.M., the teacher “said
it was another youth” and she did not “come back into the classroom to identify
[M.M.] and say that it was [him].” (Id.).
{¶39} M.M. testified that he participated in five or six administrative
hearings during the time he was in the legal care and custody of DYS. (Id. at 96).
He testified that he completed a number of treatment programs that he “most
definitely” benefitted from. (Id. at 97-98, 100). He also testified that he participated
in his progress reviews. (Id. at 98-99). According to M.M., he “never really had a
bad progress review” and “it was never * * * like [he] was on a verge of going to
prison.” (Id. at 99). However, he acknowledged discussing with Ast “that the past
superintendent already request [sic] for [his adult] sentence to be invoked.” (Id. at
100). M.M. addressed the trial court:
[T]hroughout my whole time * * *, I’ve done a lot of positive
things like * * *, I’ve completed a lot of programming and I’ve * * *
never * * * considered myself * * * a bad youth. Like today * * *
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them testifying against me it made [it sound] like I was never aware
that they felt like that * * * cuz [sic] I was always told a lot that I was
doing good. I mean I’ve had incidents here and there but [a lot of it’s
not true.]
***
Like, I knew * * * what I was * * * up against [with] my
[serious-youthful-offender-dispositional sentence]. I would
jeopardize that and like my whole time, like my whole time being in
DYS I was never on the verge of getting it, my sentence invoked until
this year. This year, I don’t know what happened because like as my
time started getting shorter because my release date is on March 24th,
2018 * * * it seems like stuff been going downhill for some reason.
(Id. at 104-105).
{¶40} On cross-examination, M.M. testified that there are three incident
reports alleging that he exposed himself to teachers; however, he denied that he
exposed himself. (Id. at 111-115). M.M. also denied that he had pornography
despite a January 12, 2016 report indicating that he had pornography. (Id. at 115).
According to M.M., he was last involved in a fight “probably 2013-14.” (Id. at 115-
116). Rather, he testified that he was the one that “always got assaulted.” (Id. at
116). He also denied slapping the hands of a staff member and pushing that staff
member in the chest. (Id. at 116-117).
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{¶41} On re-direct examination, M.M. testified that incidents may have
happened on the dates reflected in some of the incident reports, but insisted that
what took place was not as severe as reflected by the reports. (Id. at 119). He
testified that he was not provided notice of many of the incident reports alleging he
engaged in bad behavior. (Id. at 120-121). M.M. testified that he “had multiple
jobs” while incarcerated at DYS, including an “apprenticeship working with
maintenance.” (Id. at 122). However, M.M. testified that he was told that he “was
going to [be] remove[d]” from the program because he “was too aggressive inside
the institution.” (Id. at 122-123). He testified that he was “confused” by that
accusation because his “level was up” and he “was doing good.” (Id. at 123).
{¶42} After reviewing the record, we conclude that the evidence was
sufficient for the trial court to conclude that there is clear and convincing evidence
that M.M.’s conduct created a substantial risk to the safety and security of the
institution and that M.M. is unlikely to be rehabilitated during the remaining period
of the juvenile court’s jurisdiction.
{¶43} M.M.’s arguments that there is no clear and convincing evidence that
he engaged in conduct that created a substantial risk to the safety or security of the
institution and that he is unlikely to be rehabilitated during the remaining period of
juvenile jurisdiction are meritless. As we stated above, the State is not required to
prove beyond a reasonable doubt the necessary elements under R.C. 2152.14 to
invoke the adult portion of a serious-youthful-offender-dispositional sentence. See
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In re J.V., 134 Ohio St. 3d 1, 2012-Ohio-4961, at ¶ 15-16, 20. Rather, there must be
sufficient evidence for the trial court to conclude that there is clear and convincing
evidence that the adult portion of a serious-youthful-offender-dispositional sentence
should be invoked. Accordingly, M.M.’s argument that the State’s evidence
regarding his involvement in additional bad acts while in the care and custody of
DYS is not corroborated does not negate the evidence necessary to satisfy the clear-
and-convincing standard of proof. See State v. Greathouse, 7th Dist. Jefferson No.
99 JE 58, 2000 WL 875322, *4 (June 29, 2000). Moreover, notwithstanding M.M.’s
denials, whether the evidence is to be believed is a matter squarely within the
province of the trial court. See, e.g., State v. Brown, 10th Dist. Franklin No. 03AP-
331, 2004-Ohio-1219, ¶ 13 (“in determining the sufficiency of the evidence, an
appellate court must give ‘full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts’” and “the weight of the evidence and
the credibility of the witnesses are issues primarily determined by the trier of fact”),
quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781 (1979) and citing
State v. Yarbrough, 95 Ohio St. 3d 227, 2002-Ohio-2126, ¶ 79 and State v. Thomas,
70 Ohio St. 2d 79, 80 (1982); In re S.L., 3d Dist. Union Nos. 14-15-07 and 14-15-
08, 2016-Ohio-5000, ¶ 43 (noting that a “[m]ere disagreement over the credibility
of witnesses or evidence is not sufficient reason to reverse a judgment” when there
is a clear-and-convincing standard of proof).
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{¶44} We conclude that there is sufficient evidence for the trial court to
conclude that M.M. (1) engaged in separate conduct or additional bad acts that (2)
created a substantial risk to the safety or security of the institution and (3) that
demonstrated that he is unlikely to be rehabilitated during the remaining period of
juvenile jurisdiction. State’s Exhibit 4—DYS Youth Incident Summary Reports—
reflects approximately 75 reports from December 11, 2012 through October 11,
2017 detailing incidents in which M.M. was alleged to be “involved” or an “active
participant.” (See State’s Ex. 4). Compare In re A.A.W., 2015-Ohio-1297, at ¶ 4
(“Significant incidents are documented in a ‘Youth Incident Summary Report.’
A.A.W.’s report describes over 80 incidents of violence, disruptive behavior, rule
violations, and possession of contraband.”). Those incidents include, for instance,
acts of violence, sexual misconduct, gang involvement, disruptive behavior,
possession of contraband, and rule violations. (See State’s Ex. 4). Likewise, State’s
Exhibit 5—DYS YBIRs—reflects 43 reports from April 19 through September 18,
2017 detailing incidents in which M.M. violated DYS rules. (See State’s Ex. 5).
{¶45} Although M.M. successfully completed the DYS sex-offender-
treatment program in 2014, the record reflects that M.M. continued to engage in
sexually inappropriate behavior. Compare In re A.A.W. at ¶ 28 (noting that “despite
319 hours of treatment and 368 sessions, [a DYS social worker] did not observe any
improvement in A.A.W.’s attitude or behavior”). Indeed, M.M. engaged in sexually
inappropriate behavior as recently as January 31, 2017. Moreover, M.M. refused
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“sexual misconduct curriculum” following incidents in which he engaged in
sexually inappropriate behavior.
{¶46} M.M.’s behavior did not improve after he learned that the
superintendent of the Circleville JCF requested that his adult sentence be invoked.
The record reflects that M.M. was informed about that request as late as May 2017.
Nevertheless, of the 43 YBIRs reflected in State’s Exhibit 5, 25 were issued for rules
violations occurring after June 1, 2017. (State’s Ex. 5). Likewise, State’s Exhibit
4 reflects that M.M.’s behavior resulted in five Youth Incident Summary Reports
for incidents occurring after June 1, 2017. (State’s Ex. 4).
{¶47} M.M. was transferred to a different JCF in August 2017 for a “fresh”
start; however, he continued to engage in bad conduct, which resulted in the
issuance of 18 YBIRs. M.M. was provided numerous opportunities to change his
behavior; yet, the evidence in the record reflects that M.M. continued to engage in
bad conduct. Despite the numerous opportunities presented to M.M. to change his
behavior, M.M. continued to engage in conduct that created a substantial risk to the
safety and security of the institution. Furthermore, that M.M. continued to engage
in bad conduct demonstrates that he is unlikely to be rehabilitated in the remaining
period of juvenile jurisdiction. See In re J.V., 134 Ohio St. 3d 1, 2012-Ohio-4961,
at ¶ 4 (noting that invocation of an adult sentence is appropriate when a juvenile
“‘engage[s] in separate conduct detrimental to his own rehabilitation in the juvenile
system.’”) quoting In re D.H., 120 Ohio St. 3d 540, 2009-Ohio-9, at ¶ 38.
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{¶48} M.M.’s testimony also sheds light on whether he is likely to be
rehabilitated in the juvenile system. Of particular concern is M.M.’s failure to take
responsibility for his actions by denying that the incidents happened, shifting blame,
or claiming to be the victim. Most impactful to M.M.’s credibility is his denial,
despite testimony to the contrary, that he was informed that DYS staff requested the
invocation of the adult portion of his serious-youthful-offender-dispositional
sentence based on his poor behavior. Notwithstanding that denial, M.M. testified
that he was removed from his job by the Circleville JCF superintendent because of
his “aggressive” behavior.
{¶49} The foregoing facts sufficiently produce a firm belief or conviction
that M.M.’s conduct created a substantial risk to the safety and security of the
institution and that M.M. is unlikely to be rehabilitated during the remaining period
of the juvenile court’s jurisdiction. See In re A.A.W. at ¶ 30 (“The record contains
clear and convincing evidence to support the court’s finding that A.A.W. was
unlikely to be rehabilitated within the remaining period of juvenile jurisdiction.
There was no evidence that A.A.W. would be rehabilitated in the foreseeable future,
but he posed a continuing threat to the staff and youth in ODYS.”). That is, the
evidence was sufficient for the trial court to conclude that there is clear and
convincing evidence that M.M. engaged in additional bad acts as described in R.C.
2152.14(A)(2)(b) which demonstrate that it is unlikely that M.M. could be
rehabilitated in the juvenile system. See In re J.V. at ¶ 9 (“‘the court must find by
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clear and convincing evidence not only that the person serving the juvenile portion
of an [serious-youthful-offender-]dispositional sentence engaged in the conduct—
the additional bad act—he is accused of, but also that the conduct “demonstrates
that [he] is unlikely to be rehabilitated during the remaining period of juvenile
jurisdiction”’”), quoting In re C.P., 131 Ohio St. 3d 513, 2012-Ohio-1446, at ¶ 81,
quoting R.C. 2152.14(E)(1). Therefore, the trial court did not abuse its discretion
by imposing the adult portion of M.M.’s serious-youthful-offender-dispositional
sentence.
{¶50} M.M.’s assignments of error are overruled.
{¶51} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/hls
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