In re S.W.

[Cite as In re S.W., 2011-Ohio-5291.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
:
IN RE: S.W. : C.A. CASE NO. 24525
: T.C. CASE NO. 10JC1032
: (Criminal Appeal from
Juvenile Court)
. . . . . . . . .
O P I N I O N
Rendered on the 14th day of October, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Laura M. Woodruff, Asst.
Pros. Attorney, Atty. Reg. No. 0084161, P.O. Box 972, Dayton, OH
45422
Attorneys for Plaintiff-Appellee, State of Ohio
Andrea M. Seielstad, University of Dayton Law School, 300 College
Park, Dayton, OH 45431
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} S.W., a minor child, appeals from her delinquency
adjudication and disposition for having committed the offense of
disorderly conduct - persist after warning to desist.
{¶ 2} The evidence presented at the adjudicatory hearing
demonstrates that on February 5, 2010, after running errands,
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S.W.’s legal guardian, Brittany High, and High’s live-in fiancé,
Renato Robinson, returned home between 7:00-8:00 p.m. They
discovered that S.W. had invited her boyfriend, D.J., to the house
without first getting their permission, which was an on-going
family issue. Robinson told D.J. that he could not spend the night
and to call his mother and father and have them take him home.
That resulted in a verbal altercation between S.W. and High and
Robinson that escalated. S.W. and High both became angry and
upset.
{¶ 3} During their argument, High threw a bottle of hydrogen
peroxide at S.W., and after that went upstairs. S.W. went to the
kitchen and removed a large knife from a kitchen drawer. While
holding the knife in her hand, S.W. threatened to cut High’s face.
S.W. also continued to yell at High and Robinson, who had also
gone upstairs. S.W.’s conduct was witnessed by High’s daughter,
T.D., who was frightened that S.W. might harm her or her mother.
T.D. told S.W. to put the knife away. Robinson heard T.D. yelling
at S.W., and came downstairs to see what was going on. S.W. was
in the kitchen holding the knife down by her side, and she continued
to argue with Robinson when he told her to put the knife away.
{¶ 4} Eventually, S.W. put the knife away, after High had come
downstairs and saw S.W. with it, but S.W. continued to yell and
argue with Robinson because he had told D.J. to go home. High
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came downstairs enraged because S.W. was still yelling and arguing
about D.J. not being allowed to stay. Robinson stood in the kitchen
doorway between High and S.W.
{¶ 5} High threw some shoes at S.W., and High physically
struggled with Robinson in an attempt to get at S.W. High got
past Robinson and into the kitchen, where she physically attacked
S.W., who defended herself. High and S.W. assaulted each other,
and during their fight High received scratches on her neck and
chest. High fell backwards when she tripped over one of the shoes
she earlier threw at S.W. Robinson became upset when High fell,
and told T.D. to call the police, which she did. When Robinson
threatened to hit S.W., D.J. became involved and threatened
Robinson.
{¶ 6} When police arrived everyone was in the kitchen, yelling
at each other. Police observed the scratch marks on High’s neck.
S.W. was eventually arrested for domestic violence.
{¶ 7} On February 5, 2010, a complaint was filed in juvenile
court charging S.W. with being a delinquent child by reason of
having committed domestic violence in violation of R.C. 2919.25(A),
a misdemeanor of the first degree. An adjudicatory hearing was
held on April 9 and 12, 2010. At the conclusion of that hearing,
the magistrate found S.W. not responsible for the domestic violence
offense charged in the complaint. The magistrate amended the
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complaint to charge two other offenses, and found S.W. delinquent
by reason of having committed those other offenses: domestic
violence in violation of R.C. 2919.25(C), a misdemeanor of the
fourth degree, and disorderly conduct - persist after warning to
desist, in violation of R.C. 2917.11(A)(1), (E)(3)(a), also a
misdemeanor of the fourth degree. The magistrate immediately
proceeded to disposition and ordered S.W. to complete six months
of probation and participate in various counseling programs for
anger management and parent-teen conflict.
{¶ 8} S.W. timely filed objections to the magistrate’s
decision. The State filed its response. On February 3, 2011,
the Juvenile Court filed its Decision and Judgment, overruling
in part and sustaining in part S.W.’s objections to the magistrate’s
decision. The Juvenile Court agreed that the evidence presented
was legally insufficient to sustain a conviction for domestic
violence in violation of R.C. 2919.25(C), because the victim,
Brittney High, did not see S.W. with the knife and did not believe
that S.W. would cause her imminent physical harm. Accordingly,
the Juvenile Court dismissed the domestic violence charge in
violation of R.C. 2919.25(C). The juvenile court further found
that the evidence presented was sufficient to find that S.W. was
responsible for committing the offense of disorderly conduct -
persist after warning to desist in violation of R.C. 2917.11(A)(1),
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(E)(3)(a), and that the offense is a lesser included offense of
domestic violence under R.C. 2919.25(A) as originally charged in
the complaint. The court adjudicated S.W. a delinquent child based
on that finding. Finally, the juvenile court ruled that, pursuant
to Juv.R. 32, S.W. was not entitled to see, prior to the adjudicatory
hearing, a social history or the Disposition Investigation Report
(DIR) prepared in this case.
{¶ 9} S.W. timely appealed to this court from the Juvenile
Court’s Decision and Judgment overruling in part her objections
to the magistrate’s decision.
FIRST ASSIGNMENT OF ERROR
{¶ 10} “THE JUVENILE COURT ABUSED ITS DISCRETION BY FINDING
(S.W.) RESPONSIBLE FOR DISORDERLY CONDUCT - PERSIST AFTER WARNING
TO DESIST BECAUSE THE JUVENILE COURT INCORRECTLY HELD THAT
PERSISTENT DISORDERLY CONDUCT WAS A LESSER INCLUDED OFFENSE OF
DOMESTIC VIOLENCE.”
{¶ 11} A criminal defendant may be found guilty not only of
the offense(s) charged in the complaint of indictment, but also
lesser included offenses as well, even though the lesser included
offense was not separately charged. R.C. 2945.74; State v. Evans,
122 Ohio St.3d 381, 2009-Ohio-2974, at ¶8; State v. Smith, 121
Ohio St.3d 409, 2009-Ohio-787, at ¶14.
{¶ 12} Juv.R. 22(B) provides, in part:
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{¶ 13} “Amendment of pleadings. Any pleading may be amended
at any time prior to the adjudicatory hearing. After the
commencement of the adjudicatory hearing, a pleading may be amended
upon agreement of the parties or, if the interests of justice
require, upon order of the court. A complaint charging an act
of delinquency may not be amended unless agreed by the parties,
if the proposed amendment would change the name or identity of
the specific violation of law so that it would be considered a
change of the crime charged if committed by an adult.”
{¶ 14} The Staff Notes to the July 1, 1994 amendment to Juv.R.
22(B) states, in relevant part:
{¶ 15} “The revision to Juv.R. 22(B) prohibits the amendment
of a pleading after the commencement or termination of the
adjudicatory hearing unless the amendment conforms to the evidence
presented and also amounts to a lesser included offense of the
crime charged. Because juveniles can be bound over as adults and
become subject to the jurisdiction of the criminal division of
the common pleas courts, it is important that Juv.R. 22(B) conform
with Crim.R 7(D), which similarly prohibits any amendment which
would result in a change in the identity of the crime charged.”
(Emphasis supplied.)
{¶ 16} A juvenile court has the discretion to amend a complaint,
and unless it abuses its discretion, we will not reverse the
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juvenile court’s decision. In re Pennington, 150 Ohio App.3d 205,
2002-Ohio-6381.
{¶ 17} “‘Abuse of discretion’ has been defined as an attitude
that is unreasonable, arbitrary or unconscionable. Huffman v. Hair
Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482
N.E.2d 1248, 1252. It is to be expected that most instances of
abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or
arbitrary.
{¶ 18} “A decision is unreasonable if there is no sound
reasoning process that would support that decision. It is not
enough that the reviewing court, were it deciding the issue de
novo, would not have found that reasoning process to be persuasive,
perhaps in view of countervailing reasoning processes that would
support a contrary result.” AAAA Enterprises, Inc. v. River Place
Community Redevelopment (1990), 50 Ohio St.3d 157, 161.
{¶ 19} Juv.R. 22(B) would permit the court to amend the charge
in the complaint after completion of the adjudicatory hearing,
if the amended charge is a lesser included offense of the offense
originally charged in the complaint. Pennington. S.W. was
originally charged in the complaint with first degree misdemeanor
domestic violence in violation of R.C. 2919.25(A), which provides:
{¶ 20} “No person shall knowingly cause or attempt to cause
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physical harm to a family or household member.”
{¶ 21} The complaint filed in the juvenile court alleged that
the victim of S.W.’s offense was High, who is S.W.’s legal guardian.
S.W. was ultimately found responsible, after the complaint was
amended following completion of the adjudicatory hearing, of
committing disorderly conduct in violation of R.C. 2917.11(A)(1),
which provides:
{¶ 22} “No person shall recklessly cause inconvenience,
annoyance, or alarm to another by doing any of the following:
{¶ 23} “Engaging in fighting, in threatening harm to persons
or property, or in violent or turbulent behavior[.]”
{¶ 24} Ordinarily, disorderly conduct is a minor misdemeanor.
However, pursuant to R.C. 2917.11(E)(3)(a), disorderly conduct
is a misdemeanor of the fourth degree if “the offender persists
in disorderly conduct after reasonable warning or request to
desist.”
{¶ 25} In State v. Deem (1988), 40 Ohio St.3d 205, at paragraph
3 of the syllabus, the Ohio Supreme Court held:
{¶ 26} “An offense may be a lesser included offense of another
if (i) the offense carries a lesser penalty than the other; (ii)
the greater offense cannot, as statutorily defined, ever be
committed without the lesser offense, as statutorily defined, also
being committed; and (iii) some element of the greater offense
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is not required to prove the commission of the lesser offense.
State v. Kidder (1987), 32 Ohio St.3d 279, 513 N.E.2d 311,
modified.)”
{¶ 27} S.W. concedes that the first and third prongs of the
Deem test are satisfied in this case, because disorderly conduct
- persist after warning to desist, a fourth degree misdemeanor,
carries a lesser penalty than domestic violence in violation of
R.C. 2919.25(A), a first degree misdemeanor, and the greater
offense of domestic violence requires proof of an element that
the lesser offense of disorderly conduct does not require: that
the victim is a family or household member. We agree.
{¶ 28} S.W. argues that the second prong of the Deem test is
not met because the lesser offense, disorderly conduct - persist
after warning to desist, requires proof of an element that is not
required to prove the greater domestic violence offense:
persistence in the proscribed behavior after reasonable warning
or request to desist. Therefore, because it is possible to commit
the greater offense of domestic violence in violation of R.C.
2919.25(A) without also committing this additional element of
persistent disorderly conduct in violation of R.C. 2917.11(A)(1),
(E)(3)(a), the fourth degree misdemeanor persistent disorderly
conduct is not a lesser included offense of domestic violence.
See: State v. Burgess (1992), 79 Ohio App.3d 584; State v. Reynolds
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(1985), 25 Ohio App.3d 59.
{¶ 29} We note that even with respect to those cases where
disorderly conduct is charged not as a fourth degree misdemeanor
with the additional “persistence” element under R.C.
2917.11(E)(3)(a), but rather simply as a minor misdemeanor under
R.C. 2917.11(A)(1), this court has held that disorderly conduct
is not a lesser included offense of domestic violence under R.C.
2919.25(A). In State v. Schaefer (April 28, 2000), Greene App.
No. 99CA88, we stated:
{¶ 30} “In our view, it is possible to commit the offense of
domestic violence without committing disorderly conduct. In
particular, it is apparent that one may attempt to cause physical
harm to another without his or her knowledge, in which case the
victim will not have suffered inconvenience, annoyance, or alarm.
We concede that, in most cases, the actions by which one causes
or attempts to cause physical harm to another may also cause
inconvenience, annoyance, or alarm to that person. But a victim
might be wholly unaware of an attempt to cause physical harm where,
for example, the perpetrator throws an object at the victim, who
is not looking at the perpetrator, but misses his target, and thus
the victim suffers no inconvenience, annoyance, or alarm. Deem
requires us to conduct this analysis in the abstract: can domestic
violence, as statutorily defined, ever be committed without
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disorderly conduct also being committed. It is irrelevant that,
in this case, Mrs. Schaefer may in fact have suffered inconvenience,
annoyance, or alarm as a result of her husband's actions. Thus,
we conclude that disorderly conduct is not a lesser included offense
of domestic violence and that the trial court erred in convicting
Schaefer of disorderly conduct.”
{¶ 31} With respect to the second prong of the Deem test, that
“the greater offense cannot, as statutorily defined, ever be
committed without the lesser offense as statutorily defined, also
being committed,” the Ohio Supreme in State v. Evans, 122 Ohio
St.3d 381, 2009-Ohio-2974, recently modified the second prong of
the Deem test by deleting the word “ever” in order to eliminate
the implausible scenarios being advanced by parties to suggest
the remote possibility that one offense could conceivably be
committed without the other also being committed. Id., at ¶24-25.
Relying upon Evans, the State argues that the argument advanced
by S.W., that fourth degree misdemeanor persistent disorderly
conduct under R.C. 2917.11(A)(1) and (E)(3)(a) is not a lesser
included offense of first degree misdemeanor domestic violence
under R.C. 2919.25(A) because the disorderly conduct offense
requires proof of a persistence element that is not required to
prove domestic violence, falls into one of those implausible
scenarios/remote possibilities that the change made to the Deem
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test by Evans was intended to eliminate. We disagree.
{¶ 32} We disagree with the State’s contention. The
persistence factor that R.C. 2917.11(A)(1) and (E)(3) contemplates
does not present a remote possibility or implausible scenario with
respect to the offense of disorderly conduct. Therefore, we must
apply the second step of the Deem test to determine whether that
fourth degree misdemeanor form of disorderly conduct is a lesser
included offense of domestic violence.
{¶ 33} The second step of the Deem test requires a court to
examine the statutory elements of the two offenses and compare
them in the abstract to determine whether one element is the
functional equivalent of the other. Evans, at ¶25. The proper
overall focus is on the nature and circumstances of the offenses
as defined, rather than on the precise words used to define them.
Id., at ¶22. The evidence presented in a particular case is
irrelevant to the determination of whether an offense, as
statutorily defined, is necessarily included in a greater offense.
Id., at ¶13.
{¶ 34} An element to element comparison of domestic violence,
R.C. 2919.25(A), and persistent disorderly conduct, R.C.
2917.11(A) (1), (E)(3)(a), readily reveals that disorderly conduct
contains an additional element, persisting in disorderly conduct
after reasonable warning or request to desist, that is not required
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to prove domestic violence. Therefore, persistent disorderly
conduct is not a lesser included offense of domestic violence,
and the juvenile court erred in finding S.W. responsible for
committing that offense. Burgess; Reynolds.
{¶ 35} The State argues that the “persistent” disorderly
conduct which, per R.C. 2917.11(E)(3)(a), elevates the offense
from a minor misdemeanor to a fourth degree misdemeanor, is not
an element of the offense, but merely an enhancement factor
increasing the degree of the violation. We do not agree. Unlike,
for example, the age of the victim of a sex offense, or the value
of property taken in a theft offense, which are matters resulting
from and collateral to the defendant’s criminal conduct,
persistence in disorderly conduct after reasonable warning or
request to desist necessarily involves the defendant’s criminal
conduct. Prohibited conduct, coupled with the required culpable
mental state, is the basis of criminal liability. R.C. 2901.22(A).
Therefore, the persistence that R.C. 2917.11(E)(3)(a)
contemplates is not merely an enhancement factor but an element
of the offense of disorderly conduct when persistence is charged.
As such, the persistence element of the offense must be considered
when applying the second step of the Deem test.
{¶ 36} As previously discussed, we have held that minor
misdemeanor disorderly conduct under R.C. 2917.11(A)(1), even
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absent the additional “persistence” element that elevates that
offense to a fourth degree misdemeanor under R.C. 2917.11(E)(3)(a),
is not a lesser included offense of domestic violence under R.C.
2919.25(A). Schaefer. Our holding remains unaffected by City
of Shaker Heights v. Mosley, 113 Ohio St.3d 329, 2007-Ohio-2072,
which the State cites. In that case, the Ohio Supreme Court held
that minor misdemeanor disorderly conduct under R.C. 2917.11(A)(1)
is a lesser included offense of domestic violence under R.C.
2919.25(C). The Supreme Court, however, specifically
distinguished cases, including Schaefer, where domestic violence
was charged under R.C. 2919.25(A). Id., at ¶17.
{¶ 37} However, our holding in Schaefer preceded the Supreme
Court’s decision in Evans. We believe that the holding in Evans
undermines our rationale in Schaefer, to the extent that we relied
on the possibility that a victim may, in some instances, be wholly
unaware of an attempt to cause physical harm. Unless the evidence
in a particular case demonstrates that the victim was unaware,
there is now no basis to hold that the minor misdemeanor form of
domestic violence that R.C. 2917.11(A)(1) prohibits cannot be a
lesser included offense of domestic violence, in violation of R.C.
2919.25(A) under the second prong of Deem.
{¶ 38} S.W.’s first assignment of error is sustained.
SECOND ASSIGNMENT OF ERROR
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{¶ 39} “THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT
A FINDING OF RESPONSIBILITY FOR EITHER FOURTH DEGREE OR MINOR
MISDEMEANOR DISORDERLY CONDUCT; AND THE JUVENILE COURT’S
ADJUDICATION OF S.W. FOR DISORDERLY CONDUCT IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
{¶ 40} Our determination of the first assignment of error
renders moot the error herein assigned with respect to the fourth
degree version of disorderly conduct. Accordingly, we need not
decide that aspect of the error assigned. App.R. 12(A)(1)(c).
{¶ 41} We also determined in deciding the first assignment of
error that the minor misdemeanor form of disorderly conduct
prohibited by R.C. 2917.11(A)(1) may be a lesser included offense
of domestic violence. However, in the present case, the juvenile
court did not amend the complaint pursuant to Juv.R. 22(B) to charge
the minor misdemeanor. Therefore, any finding by us that the
evidence was insufficient to prove a violation of R.C.
2917.11(A)(1) would be premature and merely advisory.
{¶ 42} The case will be remanded to the juvenile court to
consider application of the minor misdemeanor form of domestic
violence. We believe that the better practice under Juv.R. 22(B),
at this stage, would be to require the State to amend its complaint
to charge the minor misdemeanor, if the State wishes to do so,
following which a further adjudicatory hearing may proceed. A
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hearing will permit the court to sort out any issues of proof the
amendment presents, such as, for example, which of the persons
present suffered “inconvenience, annoyance, or alarm” by reason
of S.W.’s conduct.
{¶ 43} The second assignment of error is overruled in part and
sustained in part.
THIRD ASSIGNMENT OF ERROR
{¶ 44} “THE JUVENILE COURT ERRED IN DENYING S.W.’S REQUEST TO
INSPECT THE DISPOSITION INVESTIGATION REPORT PREPARED BY THE
JUVENILE COURT’S INTERVENTION CENTER UPON HER ARREST IN ADVANCE
OF THE ADJUDICATORY HEARING.”
{¶ 45} The report at issue is in the nature of a “Social History
and Physical Examination Report” authorized by Juv.R. 32. S.W.
requested access to the report, prior to the adjudicatory hearing.
The magistrate denied the request, finding, after an in camera
review, that none of the information in the report was relevant
to the issue of delinquency to be adjudicated. S.W. was
subsequently adjudicated delinquent and committed to probation.
{¶ 46} S.W. objected to the magistrate’s denial of her request
for access to the report. The trial court overruled the
objections. The court found that S.W.’s request was premature,
and that the magistrate had good cause to deny access, per Juv.R.
32(C).
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{¶ 47} S.W. argues that the report should not have been prepared
prior to her adjudication, and that the juvenile court abused its
discretion when it overruled her objections to the magistrate’s
decision.
{¶ 48} Our decision sustaining S.W.’s first assignment of error
renders moot the error S.W. assigns herein. Therefore, we need
not decide it. App.R. 12(A)(1)(c). Further, at S.W.’s request,
we provided the parties copies of the report prior to oral argument.
Therefore, it is available to S.W. for purposes of any proceedings
on remand.
Conclusion
{¶ 49} Having sustained S.W.’s first assignment of error, we
will reverse the juvenile court’s judgment adjudicating S.W. a
delinquent child for having engaged in conduct violative of R.C.
2917.11(E)(3)(a), and the dispositional order entered on that
adjudication. The case is remanded to the juvenile court for
further proceedings on the complaint alleging that S.W. is a
delinquent child.
FAIN, J., And FROELICH, J., concur.
Copies mailed to:
Laura M. Woodruff, Esq.
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Andrea M. Seielstad, Esq.
Hon. Anthony Capizzi