In re D.S.

[Cite as In re D.S., 2010-Ohio-5694.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
IN THE MATTER OF: D.S., :
:
Adjudicated Delinquent Child. : Case No: 10CA893
:
:
: DECISION AND
: JUDGMENT ENTRY
:
: File-stamped date: 11-18-10
APPEARANCES:
Timothy Young, Ohio Public Defender, and Amanda J. Powell, Assistant Ohio Public
Defender, Columbus, Ohio, for Appellant.
Aaron E. Haslam, Adams County Prosecutor, and Barbara Moore-Eiterman, Adams
County Assistant Prosecutor, West Union, Ohio, for Appellee.
Kline, J.:
{¶1} D.S., an adjudicated delinquent child, appeals the judgment of the Adams
County Court of Common Pleas, Juvenile Division. D.S. was adjudicated delinquent for
committing an assault upon a teacher. On appeal, D.S. contends that insufficient
evidence supports his delinquency adjudication. Specifically, D.S. argues that there is
no proof he knowingly attempted to cause physical harm when he pushed a teacher
aside. We disagree. After viewing the evidence in a light most favorable to the state,
we find that any rational trier of fact could have found the essential elements of assault
proven beyond a reasonable doubt. Accordingly, we affirm the judgment of the trial
court.
I.
Adams App. No. 10CA893 2
{¶2} On the morning of October 29, 2009, D.S. stood outside of Manchester
High School (hereinafter “Manchester”) while he waited for a school bus that would
have taken him to an alternative high school. Manchester teachers David Knauff
(hereinafter “Knauff”) and Mr. Nelson (hereinafter “Nelson”) were on duty that morning.
Although D.S. had permission to enter Manchester only to use the bathroom, he had
apparently entered the building several times in the days before October 29. For that
reason, Nelson warned Knauff that he “might have some trouble with [D.S.] again trying
to come into the building [and] to keep an eye out.” March 17, 2010 Transcript at 8.
{¶3} Wanting to talk to the principal that morning, D.S. once again entered
Manchester. Nelson confronted D.S. and told him that he did not have permission to be
in the building, but D.S. tried to “proceed on through” Nelson and into the principal’s
office. March 17, 2010 Transcript at 9. At that point, Knauff confronted D.S. and told
D.S. that he had to leave the building. D.S. responded by moving towards Knauff and,
according to Knauff, making contact with Knauff’s chest. (D.S. denied “chest butting”
Knauff.) D.S. then backed away, and Knauff proceeded to escort D.S. out of the
building while D.S. shouted profanities.
{¶4} A few minutes later, D.S. once again entered Manchester. According to
Knauff, D.S. “came in through the entrances again, and he was coming pretty much at a
rapid pace. [Knauff] turned to meet him, and [D.S.] grabbed [Knauff] and pushed [him]
aside and continued on.” March 17, 2010 Transcript at 9.
{¶5} On November 9, 2010, a juvenile complaint charged that D.S. “did
knowingly cause or attempt to cause physical harm to David Knauff, a teacher. Said act
in violation of Section 2152.02.1 [sic] and 2903.13(A) of the Ohio Revised Code and
Adams App. No. 10CA893 3
against the peace and Dignity of the State of Ohio.” Because Knauff is a teacher, and
because the alleged assault occurred on Manchester grounds, D.S. was charged with
the juvenile equivalent of a fifth-degree felony. See R.C. 2903.13(C)(2)(e).
{¶6} Knauff was the state’s only witness at D.S.’s adjudicatory hearing. During
the hearing, the state asked Knauff to explain the “grab and push” in greater detail.
{¶7} “Q. Where did he grab you at?
{¶8} “A. Here.
{¶9} “Q. On your side, not your arms?
{¶10} “A. No, well somewhere in my mid region. He didn’t grab me up here, no.
{¶11} “Q. Okay. And he didn’t grab you by the arms, like this, it was more
your…
{¶12} “A. No, to my recollection it was here and like this.
{¶13} “Q. Okay. Did that cause any physical harm to you?
{¶14} “A. No it, it, no I didn’t have any injuries.
{¶15} “Q. As far as not having injuries, did it, I mean did you feel, did you feel the
contact?
{¶16} “A. Oh I felt the contact, yes, but I didn’t need medical attention.
{¶17} “Q. Okay.
{¶18} “A. …from it, no.” March 17, 2010 Transcript at 9-10 (ellipses sic).
{¶19} After Knauff’s testimony, D.S.’s counsel made the following motion: “* * * I
don’t know what the terminology is in Juvenile Court, so pardon me, I mean if I was in
adult Court I would call for a directed verdict of acquittal or judgment of acquittal since
there’s no jury I suppose. I suppose I would ask for a finding of, that he is not a
Adams App. No. 10CA893 4
delinquent child in this matter. Due to the fact that one of the elements of assault is that
he, the State must prove beyond a reasonable doubt that the child, knowingly caused or
attempted to cause physical harm. The only evidence, the only testimony I heard was
from the alleged victim, David Knauff, who specifically said he had no physical injuries.
Said he felt the contact, but even in the liberal definitions of physical harm in the
Revised Code, I don’t believe that’s enough to meet the definition of physical harm, just
feeling contact. Contact could be a hug, it could be a pat on the back, it could be a
handshake, any number of things, it’s not physical harm, and there was no testimony
that there was any type of physical harm here your Honor, and so I would, would so
move.” March 17, 2010 Transcript at 13-14.
{¶20} The trial court agreed with D.S.’s trial counsel as to the “chest bump,” but
disagreed as to the grab and push. As the trial court explained, “The Court must apply
common sense, as do juries, and you don’t approach a man, grab a man, try to throw a
man unless you’re attempting to cause some harm to a man. And so, the Court finds
that the essential element of attempting to * * * cause physical harm has been met.”
March 17, 2010 Transcript at 15-16.
{¶21} D.S. testified on his own behalf, and he described the grab and push in
the following manner: “* * * I went back in the building, and then Mr. Knauff and Mr.
Nelson [were] both standing there, and I did not physically try to harm them in any way.
I walked up to Mr. Knauff and I grabbed his shirt, and was going to squeeze in between
the two of them, and I didn’t shove him, I didn’t touch his skin at all. He’s, as soon as I
touched his shirt he jumped back probably ten [feet] and started screaming, call the law.
Adams App. No. 10CA893 5
I never tried to harm neither of them, and that’s pretty much what happened.” March
17, 2010 Transcript at 21-22.
{¶22} At the close of evidence, the trial court adjudicated D.S. to be delinquent
on the charge of assault. D.S. appeals and asserts the following assignment of error: I.
“The trial court violated [D.S.’s] right to due process when it adjudicated him delinquent
of assault, a fifth degree felony, absent proof of every element of the charge against him
by sufficient, competent, and credible evidence. The Fifth and Fourteenth Amendments
to the United States Constitution, Article I, Section 16 of the Ohio Constitution, and
Juvenile Rule 29(E)(4).”
II.
{¶23} In his sole assignment of error, D.S. contends that insufficient evidence
supports his delinquency adjudication. According to D.S., there is insufficient proof that
he knowingly attempted to cause physical harm during the confrontation with Knauff.
Rather, D.S. claims that he merely “made incidental contact with Mr. Knauff in an effort
to speak to the principal.” Merit Brief of [D.S.] at 5.
{¶24} “We apply the same standard of review for weight and sufficiency of the
evidence in juvenile delinquency adjudications as [we do] for adult criminal defendants.”
In re T.R., Guernsey App. No. 10CA2, 2010-Ohio-4419, at ¶11, citing In re R.G., Stark
App. No. 2009-CA-00218, 2010-Ohio-138, at ¶10. See, also, In re T.C., Washington
App. No. 09CA10, 2009-Ohio-4325, at ¶36. Therefore, when reviewing a case to
determine if the record contains sufficient evidence to support a delinquency
adjudication, we must “examine the evidence admitted at trial to determine whether
such evidence, if believed, would convince the average mind of the defendant’s guilt
Adams App. No. 10CA893 6
beyond a reasonable doubt. The relevant inquiry is 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. Smith,
Pickaway App. No. 06CA7, 2007-Ohio-502, at ¶33, quoting State v. Jenks (1991), 61
Ohio St. 3d 259, at paragraph two of the syllabus. See, also, Jackson v. Virginia (1979),
443 U.S. 307, 319.
{¶25} The sufficiency-of-the-evidence test “raises a question of law and does not
allow us to weigh the evidence.” Smith at ¶34, citing State v. Martin (1983), 20 Ohio
App.3d 172, 175. Instead, the sufficiency-of-the-evidence test “‘gives 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.’” Smith
at ¶34, quoting Jackson at 319. This court will “reserve the issues of the weight given to
the evidence and the credibility of witnesses for the trier of fact.” Smith at ¶34, citing
State v. Thomas (1982), 70 Ohio St. 2d 79, 79-80; State v. DeHass (1967), 10 Ohio
St.2d 230, at paragraph one of the syllabus.
{¶26} D.S. was adjudicated delinquent for assault. Under R.C. 2903.13(A), “[n]o
person shall knowingly cause or attempt to cause physical harm to another or to
another’s unborn.” Additionally, “[a] person acts knowingly, regardless of his purpose,
when he is aware that his conduct will probably cause a certain result or will probably be
of a certain nature. A person has knowledge of circumstances when he is aware that
such circumstances probably exist.” R.C. 2901.22(B). And finally, “‘[p]hysical harm to
persons’ means any injury, illness, or other physiological impairment, regardless of its
gravity or duration.” R.C. 2901.01(A)(3). This court has held that, “[w]hen accompanied
Adams App. No. 10CA893 7
by the requisite intent, a * * * shove, push or grab * * * may satisfy the physical harm
element of assault.” In re Pollitt (Oct. 10, 2000), Adams App. No. 00 CA 687 (internal
quotations omitted) (omissions sic). Thus, in the present case, we must determine
whether there is sufficient evidence that D.S. knowingly attempted to cause physical
harm during his confrontation with Knauff.
{¶27} To support his assignment of error, D.S. cites In re Mark M. (Feb. 4,
2000), Erie App. Nos. E-99-028 & E-99-046. In Mark M., a teacher confronted three
students involved in a verbal altercation. The teacher asked the adjudicated delinquent
child to walk in the opposite direction, but the adjudicated delinquent child heard one of
the other students make a derogatory comment. As a result, the adjudicated delinquent
child “pushed [the teacher] out of the way and went after the person who uttered the
remark.” Id. A second teacher then arrived on the scene and restrained the
adjudicated delinquent child.
{¶28} A short time later, the adjudicated delinquent child sat in the
superintendent’s office while the first teacher stood by the doorway and the second
teacher used the phone. Suddenly, the adjudicated delinquent child charged into the
first teacher “in what was described as a ‘football’ type drive. The force pushed [the first
teacher] into the hall.” Id. At that point, the second teacher dropped the phone and
tackled the adjudicated delinquent child. Both teachers eventually subdued the
adjudicated delinquent child, and, as a result of these incidents, the adjudicated
delinquent child was charged with two counts of assault.
{¶29} On appeal, the adjudicated delinquent child raised several sufficiency-of-
the-evidence arguments. And in part, the Sixth District Court of Appeals agreed with
Adams App. No. 10CA893 8
the adjudicated delinquent child. The court explained that, “[w]ith respect to appellant’s
hallway shove of [the first teacher], the magistrate’s factual findings indicated that this
incident occurred when the teacher attempted to block appellant’s access to another
student. [The first teacher’s] testimony was that when he moved in front of appellant,
appellant pushed him to gain access to the offending speaker. [The first teacher]
claimed no injury from this[,] and the magistrate made no finding that appellant was
aware that this push might cause injury. Therefore, at least with respect to the hallway
push of [the first teacher], the necessary mental element has not been satisfied.” Id.
{¶30} However, the Sixth District Court of Appeals rejected the adjudicated
delinquent child’s argument as to the football-type drive. As the court explained, “The
football stance attack on [the first teacher] in the superintendent’s office is another
matter. The magistrate concluded that [the first teacher] was ‘shaken up’ by this
‘charge[ ].’ Clearly, appellant intended to move [the first teacher] without regard to
whether such a physical encounter would cause harm. Additionally, an individual of
ordinary intelligence would have been aware that such an attack might cause some
physical harm. That it did not cause greater harm is fortunate for all concerned, but it
does not negate the presence of all of the elements of assault on a teacher.” Id.
{¶31} D.S. contends that Mark M. demonstrates the difference between physical
contact with the requisite mental intent and physical contact without the requisite mental
intent. That is, D.S. argues that his case resembles the “hallway shove” in Mark M., not
the “football-type drive.” As such, D.S. claims that he did not have the requisite mental
intent for assault when he pushed Knauff.
Adams App. No. 10CA893 9
{¶32} Here, we are mindful that “[k]nowledge, like all kinds of intent, can be
inferred from circumstantial evidence.” State v. Terry, 186 Ohio App. 3d 670, 2010-
Ohio-1604, at ¶22, citing State v. Seiber (1990), 56 Ohio St. 3d 4, 13-14. And after
viewing the evidence in a light most favorable to the state, we believe that the
circumstantial evidence in the present case differs significantly from the circumstantial
evidence in Mark M. Most importantly, the juvenile in Mark M. did not have a heated
confrontation with the teacher just prior to the hallway shove. Furthermore, as it related
to the hallway shove, there was no evidence that the juvenile in Mark M. had any
animus directed towards the teacher. Instead, the teacher in Mark M. just happened to
be in the juvenile’s way during a spur-of-the-moment encounter. Therefore, we find
Mark M. to be easily distinguishable.
{¶33} In contrast to Mark M., the evidence here supports the reasonable
inference that D.S. had the requisite mental intent for assault. Before D.S. pushed
Knauff, there was a verbal confrontation that included profanities and “very belligerent”
behavior. March 17, 2010 Transcript at 9. Then, D.S. left the building, reentered the
building, walked towards Knauff at a “rapid pace,” and pushed Knauff aside. March 17,
2010 Transcript at 9. Based on these events, one could reasonably infer that D.S.
sought out a physical confrontation with Knauff. And because of the profanity and
belligerent behavior directed towards Knauff, one could reasonably infer that an animus
for Knauff motivated D.S.’s actions. Accordingly, the circumstantial evidence supports
the reasonable inference that D.S. knowingly attempted to cause physical harm by
pushing Knauff aside. This is so even though Knauff did not suffer any actual injuries
as a result of the push.
Adams App. No. 10CA893 10
{¶34} Thus, after viewing the evidence in a light most favorable to the state, we
find that any rational trier of fact could have found all the essential elements of assault
proven beyond a reasonable doubt. Accordingly, we overrule D.S.’s assignment of
error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Adams App. No. 10CA893 11
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Adams County Court of Common Pleas, Juvenile Division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
McFarland, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.