DocketNumber: No. CA2008-05-063.
Citation Numbers: 2009 Ohio 548
Judges: POWELL, J.
Filed Date: 2/9/2009
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} On September 13, 2007, a school resource officer for Springboro Community *Page 2 Schools found on Facebook a picture of appellant with three juveniles holding Smirnoff bottles and other pictures of the night in question. Following an investigation, appellant, a part-time employee of Springboro High School at the time, was charged with three counts of allowing an underage person to remain on her premises while possessing or consuming alcoholic beverages.
{¶ 3} At trial, the state presented evidence showing the juveniles, who were not appellant's children, consumed Smirnoff, Sparks, and beer at appellant's home and that appellant was present and knew of such conduct. The state also presented testimony of two of the juveniles who stated appellant played drinking games with them. Despite appellant's testimony that she did not know the juveniles possessed or consumed alcohol on her premises and that she demanded that they leave when she discovered such activity, a jury convicted her on all three counts of offenses involving underage alcohol consumption. The court then sentenced her to community control, with conditions, for a period of three years, a fine of $500.00 plus costs, ten days of litter pick-up, and 30 days in jail. Appellant now appeals her conviction and sentence, setting forth five assignments of error.
{¶ 4} Assignment of Error No. 1:
{¶ 5} "THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION WHEN IT ORDERED THE FOLLOWING CONDITIONS OF COMMUNITY CONTROL: THAT APPELLANT NOT DRINK OR POSSESS ALCOHOL, AND THAT SHE NOT HAVE ALCOHOL IN HER HOUSE."
{¶ 6} Appellant argues the trial court abused its discretion in imposing as conditions of community control that she not consume or possess alcohol and that she not have alcohol in her household. Appellant argues these conditions do not relate to the crimes for which she was found guilty.
{¶ 7} The trial court has broad discretion in imposing conditions of community control *Page 3
pursuant to R.C.
{¶ 8} A trial court's discretion in imposing community control conditions is not limitless, however. State v. Jones (1990),
{¶ 9} After reviewing the entire record, we find the trial court acted within its discretion by concluding the restrictions on alcohol use and possession as conditions of appellant's community control, as applied to appellant only, are reasonably related to rehabilitating the offender, have a reasonable relationship to the crime charged, are reasonably related to future criminality and serve the statutory ends of probation. Appellant was convicted of an alcohol-related offense — allowing juveniles to consume alcohol in her home. If she is not allowed to possess or consume alcohol or have alcohol in her home, it is less likely that juveniles will consume alcohol in her home. Accordingly, we overrule appellant's first assignment of error.
{¶ 10} Assignment of Error No. 2: *Page 4
{¶ 11} "TWO OF THE CONVICTIONS SHOULD BE REVERSED BECAUSE THE EVIDENCE SHOWED ONLY ONE VIOLATION AND BY ALLOWING FOR CONVICTION ON THREE OFFENSES THE TRIAL COURT VIOLATED THE DOUBLE JEOPARDY CLAUSES OF THE FEDERAL AND STATE CONSTITUTIONS."
{¶ 12} Appellant argues two of her three convictions violate the double jeopardy clause. She asserts that if she did violate R.C.
{¶ 13} The primary goal of statutory interpretation is to ascertain and give effect to the legislature's intent in enacting the statute.State v. Hairston,
{¶ 14} We find the language of R.C.
{¶ 15} Therefore, appellant's convictions do not violate the double jeopardy clause, as appellant was appropriately charged, convicted, and sentenced on three counts of violating R.C.
{¶ 16} Assignment of Error No. 3:
{¶ 17} "THE CASE SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT RELIED ON AN IMPROPER FACTOR WHEN IT IMPOSED THE SENTENCE IN THIS CASE."
{¶ 18} Appellant argues this court should remand her case for resentencing because the trial court erred when it based her sentence on an improper consideration. Specifically, appellant contends the trial court based her sentence, at least in part, on the fact that she sent the teenagers out of her house without making sure they got home safely.
{¶ 19} During the sentencing phase of the trial, the trial court discussed the societal problem of underage drinking and the noticeable trend of parents as participants in the problem. Following these comments, this discussion transpired regarding appellant's testimony and reaction to the underage drinking on the night the violations occurred:
{¶ 20} "THE COURT: I'm not suggesting that you were drinking along with them *Page 6 because I don't think there was any evidence to that effect, although you were — from the greater weight of the evidence, that you were down there with them. I think society has this problem and I think you have a problem in that you were a buddy to these kids when they needed a parent to step in.
{¶ 21} "And what should have happened when you discovered that these kids were drinking is that immediate action should have taken place, whether the nachos get burned or not, that immediate action should have taken place, that all of these parents should have been notified and that your actions should have been very, very different.
{¶ 22} "Even if I accept your testimony as true, which most of it, I don't. But even if I accept your testimony as true, that you didn't realize that they were drinking until after this picture and so forth, what you still did was wrong because you can't just turn these kids out after they've been drinking and leave it to themselves to find their way home. That — that's not right. And to both of these problems, I have to find the solution; and to find the solution, what I need to do is impose a sentence."
{¶ 23} An appellate court reviews a trial court's sentence on a misdemeanor violation for an abuse of discretion. R.C.
{¶ 24} Unless a mandatory jail term is required by statute, the trial court has the discretion to impose a misdemeanor sentence and to determine the most effective way to achieve the purposes set forth in R.C.
{¶ 25} When determining a misdemeanor sentence, the trial court is not required to state on the record its consideration of the sentencing factors, but rather, this court presumes the trial court properly considered the factors discussed above when the sentence is within the statutory limits, absent an affirmative showing to the contrary.McCaleb, at ¶ 41, citing State v. Kelly, Greene App. No. 2004CA122,
{¶ 26} Upon review of the record, we find appellant has demonstrated no error in her sentencing. Following the court's assessment of appellant's veracity at trial and the evidence regarding her irresponsible behavior, the trial court discussed the factors it considered prior to issuing her sentence, including the nature and the circumstances of the offenses, appellant's lack of a history of criminality, and the age of the victims. Consideration of the evidence that she sent the teenagers home without calling their parents, would not be improper, as the court is to consider the vulnerability of the victims or any factors that are relevant to achieve the purposes of sentencing. See R.C.
{¶ 27} Assignment of Error No. 4:
{¶ 28} "THE APPELLANT'S CONVICTION SHOULD BE REVERSED BECAUSE O.R.C.
{¶ 29} Appellant challenges the constitutionality of R.C.
{¶ 30} There exists a strong presumption in favor of the constitutionality of statutes. Adamsky v. Buckeye Local SchoolDist.,
{¶ 31} Appellant first argues R.C.
{¶ 32} A statute will only be invalidated as overbroad if appellant proves that its deterrent effect on legitimate expression is both real and substantial, and the legislation is not readily subject to a constitutionally valid limiting interpretation by the court. City ofLorain v. Davidson (1989),
{¶ 33} In the case at bar, appellant has failed to prove beyond a reasonable doubt that R.C.
{¶ 34} Appellant also argues R.C.
{¶ 35} A statute, however, is not void solely because it could have been worded more precisely. State v. Dorso (1983),
{¶ 36} In this case, appellant argues R.C.
{¶ 37} As previously discussed, R.C.
{¶ 38} Assignment of Error No. 5:
{¶ 39} "THE CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT ALLOWED THE STATE TO PRESENT EVIDENCE OF ACTUAL CONTAINERS OF ALCOHOL THAT WERE NOT RECOVERED FROM APPELLANT'S HOUSE AND WERE IN NO WAY CONNECTED WITH THE EVENTS AT ISSUE."
{¶ 40} Appellant argues her convictions should be reversed because the trial court improperly allowed bottles of Sparks and Smirnoff into evidence, claiming that because the bottles were not from the night in question, they do not prove the alcohol content in the containers at trial were the same as the content in the containers at the party. Appellant therefore submits that the exhibits were unfairly prejudicial to her case and that the state failed to establish the alcoholic content of the drinks involved in this case qualified as "intoxicating liquor", as defined by R.C.
{¶ 41} Evidentiary rulings lie within the broad discretion of the trial court and will form the basis for reversal on appeal only upon an abuse of discretion that amounts to prejudicial error. State v.Graham (1979),
{¶ 42} Demonstrative evidence is admissible only if (1) it is relevant, (2) it is substantially similar to the object or occurrence that it is intended to represent, and (3) it does not consume undue time, confuse the issues, or mislead the jury. State v. Griffin, Montgomery App. No. 20681,
{¶ 43} We find the trial court did not abuse its discretion in admitting the bottle of Smirnoff and can of Sparks. The state presented pictures from Facebook in which appellant was posing with three juveniles holding bottles of Smirnoff. In another Facebook picture from the same party, another juvenile was holding a can of Sparks. Three juvenile girls testified for the state that they or other individuals at the party were drinking Smirnoff and Sparks. The evidence was therefore relevant. In addition, one of the juveniles testified the bottle of Smirnoff and can of Sparks were substantially similar to the ones they were drinking the night of the party, which could be seen in the photos. Finally, the evidence did not consume undue time, confuse the issue, or mislead the jury, as the juvenile on cross-examination testified that the containers were not the actual containers from the party, but that they were substantially similar to the actual containers. SeeAdamson.
{¶ 44} We further note that although appellant argues the state failed to establish an element of the offense — that the beverages consumed by the juveniles in this case were intoxicating liquor as defined in R.C.
{¶ 45} Judgment affirmed. *Page 12
WALSH, P.J., and BRESSLER, J., concur. *Page 1
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Grayned v. City of Rockford , 92 S. Ct. 2294 ( 1972 )
Young v. American Mini Theatres, Inc. , 96 S. Ct. 2440 ( 1976 )