State v. Howard

[Cite as State v. Howard, 2018-Ohio-1863.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27198
:
v. : Trial Court Case No. 2014-CR-2123
:
DEONTAE HOWARD : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 11th day of May, 2018.
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MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio
45402
Attorney for Defendant-Appellant
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WELBAUM, P.J.
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{¶ 1} Defendant-appellant, Deontae Howard, appeals from his conviction and
sentence in the Montgomery County Court of Common Pleas after he pled no contest to
two counts of robbery. In support of his appeal, Howard argues that the trial court lacked
jurisdiction to adjudicate his criminal charges because his case was invalidly transferred
from the trial court’s juvenile division. Specifically, Howard contends that the juvenile
court abused its discretion in transferring his case to adult criminal court because it failed
to sufficiently identify its reasoning for finding him unamenable to care and rehabilitation
in the juvenile justice system. For the reasons outlined below, the judgment of the
juvenile court and Howard’s conviction in the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} In the spring of 2014, when he was 17 years old,1 Howard was charged as
a juvenile delinquent in the Montgomery County Court of Common Pleas, Juvenile
Division, for conduct that would amount to second-degree-felony robbery if committed by
an adult. The charges arose after it was alleged that Howard took part in a version of
the “knock out game” that had recently been sensationalized on social media. As part
of this “game,” Howard had a friend video record him with a cell phone camera while he
attacked two homeless men on two separate occasions. During the first attack, Howard
struck the victim on the back of the head and continued striking the victim as the victim
attempted to run away. Howard also demanded the victim’s money and cell phone, and
took the only money the victim had, a total of $3.00. Less than a month later, Howard
1 Howard is now 21 years old.
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engaged in another attack upon a different homeless man, knocking the victim to the
ground, kicking him, and stealing his cellphone and bus pass.
{¶ 3} On April 18, 2014, after the robbery charges were filed in juvenile court,
Howard appeared at court and waived his right to a probable cause hearing. In doing
so, Howard stipulated that the facts alleged in the juvenile complaint were sufficient to
find the existence of probable cause to believe he had committed the robbery offenses.
As a result, the juvenile court found the existence of probable cause and scheduled the
matter for an amenability hearing in order to determine whether Howard’s case should be
transferred to adult criminal court.
{¶ 4} For purposes of the amenability hearing, the juvenile court ordered Howard
to undergo a psychological examination and for the probation department to prepare a
Disposition Investigation Report (“DIR”) on Howard’s social history. The DIR and the
report of the psychological examination contained information regarding Howard’s mental
and physical health, family history, academic and behavioral record, and his robbery
offenses. The psychological report also provided the results of Howard’s clinical
interview and psychological testing.
{¶ 5} Once the reports were prepared, an amenability hearing was held before the
juvenile court on June 9, 2014. At this hearing, the juvenile court indicated that it had
received and reviewed the DIR and psychological reports. The juvenile court also heard
testimony from Howard’s high school principal, who testified regarding Howard’s
academic and disciplinary issues.
{¶ 6} After hearing all the evidence, the juvenile court made a finding under each
factor in R.C. 2152.12(D) and (E). Based on those statutory findings, the information in
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the DIR and psychological reports, and the “heinous nature of the charge,” the juvenile
court found that Howard was not amenable to care or rehabilitation in the juvenile justice
system. As a result, the juvenile court issued an order and entry transferring Howard’s
case to adult criminal court. In the entry, the juvenile court identified the reports it
considered and listed each of the findings it had made under R.C. 2152.12(D) and (E).
The entry also noted that the juvenile court considered “the child’s age, his social history,
mental examination, prior Juvenile Court record, previous efforts to treat or rehabilitate,
family environment, school records, and the seriousness of the alleged offenses.” Order
and Entry Granting Motion to Relinquish Jurisdiction and Transfer to General Division
(June 11, 2014), Montgomery County Court of Common Pleas Juvenile Division Case
No. 2014-2297.
{¶ 7} Following the transfer of his case to adult criminal court, Howard was indicted
on two second-degree-felony counts of robbery. On August 26, 2014, Howard pled no
contest to both counts. After accepting Howard’s no contest pleas and finding him guilty,
the trial court sentenced Howard to four years in prison. Howard then appealed to this
court arguing that his conviction was void because the transfer of his case from juvenile
court was in error.
{¶ 8} On appeal, we concluded that the juvenile court “failed to identify its
reasoning for reaching its finding that [Howard] could not be rehabilitated in the juvenile
system sufficiently to permit us to conduct a meaningful appellate review of its decision.”
State v. D.H., 2d Dist. Montgomery No. 26383, 2015-Ohio-3259, ¶ 2. In so holding, we
reversed Howard’s judgment of conviction and remanded the matter to the juvenile court
for reconsideration of its decision to relinquish jurisdiction. Id. Following that decision,
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the State appealed to the Supreme Court of Ohio, which declined to review the appeal.
State v. D.H., 144 Ohio St.3d 1477, 2016-Ohio-467, 45 N.E.3d 244.
{¶ 9} On remand from this court, the juvenile court once again determined that
Howard was not amenable to care and rehabilitation in the juvenile justice system. As a
result, on March 9, 2016, the juvenile court issued an entry transferring Howard’s case to
adult criminal court. Howard then appealed from the transfer decision in this court. In
response, the State filed a motion to dismiss Howard’s appeal for lack of a final
appealable order. After taking the matter under advisement, we concluded that juvenile
court transfers are not final appealable orders and granted the State’s motion to dismiss.
In re D.H., 2016-Ohio-5265, 69 N.E.3d 127 (2d Dist.). Howard then appealed to the
Supreme Court of Ohio, which granted jurisdiction to review his appeal. In re D.H., 147
Ohio St.3d 1505, 2017-Ohio-261, 67 N.E.3d 823.
{¶ 10} While Howard’s appeal in the Supreme Court was pending, the juvenile
court proceeded with transferring Howard’s case to adult criminal court where he was
reindicted on the same two counts of robbery. Thereafter, on July 5, 2016, Howard
entered no contest pleas to both counts of robbery, which the trial court accepted prior to
sentencing him to four years in prison. Howard then appealed from his conviction;
however, we stayed the appeal pending the Supreme Court’s ruling on the final
appealable order issue. Decision and Entry (Feb. 22, 2017), 2d Dist. Montgomery App.
Case No. 27198.
{¶ 11} On January 4, 2018, the Supreme Court of Ohio issued a decision affirming
our dismissal of Howard’s appeal after finding that a juvenile court’s order transferring
jurisdiction to adult criminal court is not a final appealable order. In re D.H., Sup. Ct. Slip
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Opinion No. 2018-Ohio-17, ¶ 22. As a result of that decision, we lifted the stay on
Howard’s appeal from his 2016 conviction. Decision and Entry (Jan. 10, 2018), 2d Dist.
Montgomery App. Case No. 27198. Accordingly, Howard’s appeal is now properly
before this court for review.
Assignment of Error
{¶ 12} In support of his appeal, Howard raises the following single assignment of
error for review.
THE JUVENILE COURT ERRED, FOR THE SECOND TIME, IN
RELINQUISHING JURISDICTION TO THE COURT OF COMMON PLEAS
AND THUS THE COMMON PLEAS PROCEEDINGS THERE WERE
AGAIN VOID AB INITIO.
{¶ 13} Under his sole assignment of error, Howard contends that the juvenile
court’s decision on remand transferring his case from juvenile court to adult criminal court
was an abuse of discretion. Specifically, Howard claims that the juvenile court simply
reiterated its prior transfer decision and that the court once again failed to identify its
reasoning for finding Howard unamenable to care and rehabilitation in the juvenile justice
system. We disagree.
Standard of Review
{¶ 14} Discretionary transfer proceedings from juvenile court to the general
division of common pleas court are reviewed for an abuse of discretion. In re M.P., 124
Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 14; State v. Watson, 47 Ohio St.3d
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93, 95, 547 N.E.2d 1181 (1989). “A trial court abuses its discretion when it makes a
decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State
v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.
{¶ 15} Under this standard, a juvenile court “ ‘enjoys wide latitude to retain or to
relinquish jurisdiction.’ ” State v. Johnson, 2015-Ohio-96, 27 N.E.3d 9, ¶ 36 (8th Dist.),
quoting Watson at 95; State v. Carmichael, 35 Ohio St.2d 1, 298 N.E.2d 568 (1973),
paragraph one of syllabus. “As long as the court considers the appropriate statutory
factors and there is some rational basis in the record to support the court’s findings when
applying those factors, we cannot conclude that the trial court abused its discretion in
deciding whether to transfer jurisdiction.” State v. West, 167 Ohio App.3d 598, 2006-
Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.), citing R.C. 2152.12(B), Watson at 95-96,
State v. Douglas, 20 Ohio St.3d 34, 36-37, 485 N.E.2d 711 (1985), and State v. Hopfer,
112 Ohio App.3d 521, 535-536, 679 N.E.2d 321 (2d Dist.1996).
{¶ 16} We further note that “the test is not whether we would have reached the
same result upon the evidence before the juvenile court; the test is whether the juvenile
court abused the discretion confided in it.” Hopfer at 535. “If there is some rational and
factual basis to support the [juvenile] court’s decision, we are duty bound to affirm it
regardless of our personal views of the evidence.” West at ¶ 10. “After all, the juvenile
court judge is personally familiar with both the juvenile system and the individual juvenile,
and is therefore in a superior position to make a determination whether the juvenile is
amenable to care or rehabilitation within the juvenile system.” State v. Drane, 2d Dist.
Montgomery No. 23862, 2012-Ohio-1978, ¶ 34 (Fain, J., dissenting).
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Discretionary Transfer Factors and Analysis
{¶ 17} The discretionary transfer of cases from juvenile court to adult criminal court
is governed by R.C. 2152.12(B). Pursuant to that statutory provision, a juvenile case
may be transferred to adult criminal court if the juvenile court finds: “(1) The child was
fourteen years of age or older at the time of the act charged[;] (2) There is probable cause
to believe that the child committed the act charged[; and] (3) The child is not amenable to
care or rehabilitation within the juvenile system, and the safety of the community may
require that the child be subject to adult sanctions. * * * ” R.C. 2152.12(B)(1)-(3).
{¶ 18} In this case, there is no dispute that Howard satisfies the age and probable
cause requirements set forth in R.C. 2152.12(B)(1) and (2). The only issue is whether
the trial court abused its discretion in determining that Howard was not amenable to care
or rehabilitation within the juvenile justice system.
{¶ 19} When determining whether a juvenile is not amenable to care or
rehabilitation, the juvenile court is required to consider whether the relevant factors under
R.C. 2152.12(D), which indicate that the case should be transferred, outweigh the
relevant factors under R.C. 2152.12(E), which indicate that the case should not be
transferred. R.C. 2152.12(B)(3). “Additionally, aside from the specifically enumerated
factors, the juvenile court is instructed to consider ‘any other relevant factors.’ ” (Citation
omitted.) Johnson, 2015-Ohio-96, 27 N.E.3d 9 at ¶ 35, quoting R.C. 2152.12(D) and (E).
{¶ 20} Pursuant to R.C. 2152.12(D), the following factors weigh in favor of
transferring the case to the general division of common pleas court:
(1) The victim of the act charged suffered physical or psychological harm,
or serious economic harm, as a result of the alleged act.
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(2) The physical or psychological harm suffered by the victim due to the
alleged act of the child was exacerbated because of the physical or
psychological vulnerability or the age of the victim.
(3) The child’s relationship with the victim facilitated the act charged.
(4) The child allegedly committed the act charged for hire or as a part of a
gang or other organized criminal activity.
(5) The child had a firearm on or about the child's person or under the child’s
control at the time of the act charged, the act charged is not a violation of
section 2923.12 of the Revised Code, and the child, during the commission
of the act charged, allegedly used or displayed the firearm, brandished the
firearm, or indicated that the child possessed a firearm.
(6) At the time of the act charged, the child was awaiting adjudication or
disposition as a delinquent child, was under a community control sanction,
or was on parole for a prior delinquent child adjudication or conviction.
(7) The results of any previous juvenile sanctions and programs indicate
that rehabilitation of the child will not occur in the juvenile system.
(8) The child is emotionally, physically, or psychologically mature enough
for the transfer.
(9) There is not sufficient time to rehabilitate the child within the juvenile
system.
{¶ 21} Pursuant to R.C. 2152.12(E), the following factors weigh against
transferring the case to the general division of common pleas court:
(1) The victim induced or facilitated the act charged.
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(2) The child acted under provocation in allegedly committing the act
charged.
(3) The child was not the principal actor in the act charged, or, at the time
of the act charged, the child was under the negative influence or coercion
of another person.
(4) The child did not cause physical harm to any person or property, or have
reasonable cause to believe that harm of that nature would occur, in
allegedly committing the act charged.
(5) The child previously has not been adjudicated a delinquent child.
(6) The child is not emotionally, physically, or psychologically mature
enough for the transfer.
(7) The child has a mental illness or is a mentally retarded person.
(8) There is sufficient time to rehabilitate the child within the juvenile system
and the level of security available in the juvenile system provides a
reasonable assurance of public safety.
{¶ 22} “The record shall indicate the specific factors that were applicable and that
the court weighed.” R.C. 2152.12(B)(3). “Further, when the trial court determines a
transfer is proper, the juvenile court ‘shall state the reasons for the transfer on the
record.’ ” Johnson, 2015-Ohio-96, 27 N.E.3d 9 at ¶ 35, citing R.C. 2152.12(I) and Juv.R.
30(G).
{¶ 23} In D.H., 2d Dist. Montgomery No. 26383, 2015-Ohio-3259, this court held
that it was unable to review whether the transfer of Howard’s case to adult criminal court
was an abuse of discretion because the juvenile court failed to identify its reasoning for
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finding that Howard was unamenable to care or rehabilitation in the juvenile system. Id.
at ¶ 2. In so holding, this court explained that the juvenile court’s entry did “not identify
which of the reports and records reviewed by the psychologist were also reviewed and
considered by the court.” Id. at ¶ 17. Although the parties stipulated to the contents of
the psychologist’s report, this court also found that “no exhibits or documentary evidence
was admitted in evidence at the amenability hearing.” Id. We also found that the court
did “not identify or discuss what programs are, or are not, available in the juvenile justice
system to satisfy the child’s health needs, as identified in the psychologist’s report.” Id.
We further found that the trial court did “not make any specific findings about the child’s
educational deficiencies, and [did] not identify what programs are, or are not available in
the juvenile justice system to meet D.H.’s educational needs.” Id. In so holding, this
court stated that: “The record reveals that [Howard’s] age at the time of the amenability
hearing would have given him more than 3 years for rehabilitation in the juvenile system,
and yet the juvenile court’s findings contain no discussion of what rehabilitation goals can,
or cannot, be accomplished in the juvenile system in a 3-year period, or what programs
are, or are not available in the juvenile system to accomplish these goals.” Id.
{¶ 24} Since our decision in D.H. other appellate districts have commented that,
“[w]hile we agree that a court needs to genuinely consider the [R.C. 2152.12(D) and (E)]
factors, and the record needs to reflect that fact consistent with R.C. 2152.12(B)(3), we
have never gone so far as the Second District in directing the juvenile court’s analysis.”
State v. Reeder, 2016-Ohio-212, 57 N.E.3d 458, ¶ 18 (10th Dist.); State v. Blair, 5th Dist.
Stark No. 2016CA00180, 2017-Ohio-5865, ¶ 39; In re D.M., 6th Dist. Lucas Nos. L-16-
1237, L-16-1238, L-16-1270, 2017-Ohio-8768, ¶ 47. Instead, many of those courts have
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reiterated that “ ‘[a]s long as the court considers the appropriate statutory factors and
there is some rational basis in the record to support the court’s findings when applying
those factors, we cannot conclude that the [juvenile] court abused its discretion in
deciding whether to transfer jurisdiction.’ ” Blair at ¶ 40, quoting West, 167 Ohio App.3d
598, 2006-Ohio-3518, 856 N.E.2d 285 at ¶ 10; D.M. at ¶ 47, quoting Blair and West.
{¶ 25} Nevertheless, after a thorough review of the record, we find that the juvenile
court’s decision on remand transferring jurisdiction to the adult criminal court in this case
passes muster, as the juvenile court not only weighed the statutory factors in R.C.
2152.12(D) and (E), but also provided detailed reasons in its entry for why it found Howard
unamenable to rehabilitation and care in the juvenile justice system.
{¶ 26} As for the statutory factors, the juvenile court found five factors weighing in
favor of transfer under R.C. 2152.12(D) (1), (2), (7), (8) and (9), and only one factor
weighing against transfer under R.C. 2152.12(E)(5). Under factor (E)(5), the juvenile
court found that Howard had not been adjudicated a juvenile delinquent in the past;
however, it should be noted that the parties stipulated to Howard having a charge of first-
degree misdemeanor theft that was handled unofficially by the juvenile court.
{¶ 27} Under factors (D)(1) and (2), the juvenile court found that Howard’s victims
suffered physical or psychological harm and that said harm was exacerbated by the
victims’ physical or psychological vulnerability or age. This finding is supported by the
record, which indicates that Howard punched and kicked the victims repeatedly during
his unprovoked attacks, and that the victims were vulnerable in that they were both
homeless with one being an older man.
{¶ 28} Under factor (D)(8), the juvenile court found that Howard is emotionally,
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physically, and psychologically mature enough for transfer. This finding is supported by
the record as the DIR and psychological reports indicate that Howard is physically large,
being 5’10” and 215lbs, with a low to average I.Q. The record indicates that Howard has
not been diagnosed as mentally challenged to the extent he qualifies for MR/DD services.
While the record indicates that Howard suffers from Attention Deficit Hyperactivity
Disorder, which impacts his learning and qualifies him for special education, the record
indicates that Howard’s educational deficiencies are largely due to his failure to attend
class and take school seriously. With regards to his emotional functioning, the
psychological report indicates that Howard has minimal concern about his past actions,
that he lacks self-insight, tends to deny or minimize his difficulties, and that he is motivated
to maintain the status quo.
{¶ 29} Under factors (D)(7) and (D)(9), the juvenile court found that the results of
Howard’s prior juvenile sanctions and programs indicate that rehabilitation is not likely to
occur and that there is insufficient time to rehabilitate Howard within the juvenile system.
In relation to these factors, the juvenile court specifically found that Howard was not
amenable to care and rehabilitation in the juvenile justice system because Howard failed
to make any progress in changing his negative behavior despite receiving various
services from the juvenile court, Family Services, and his school district.
{¶ 30} In its entry, the juvenile court explained that Howard had previously received
theft prevention education through the court, which the record indicates was provided as
a result of Howard’s unofficial theft charge. The juvenile court also indicated that Howard
took part in other court programs such as Diversion community service. The court further
indicated that Howard was placed on electronic home monitoring, which the record
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indicates Howard violated on two occasions.
{¶ 31} The juvenile court also discussed the services Howard received from Family
Services as recommended by the juvenile court’s Intervention Center. According to the
court, in 2013, Family Services screened and diagnosed Howard with Conduct Disorder,
Attention Deficit Hyperactivity Disorder, and Parent/Child Relational Problem, for which
he received monthly counseling sessions until March of 2014, which is the time of the
robbery offenses in question. The juvenile court noted that the counseling sessions were
supposed to help Howard understand his thoughts and how they are affecting his
behaviors.
{¶ 32} In addition to the services provided by the juvenile court and Family
Services, the juvenile court identified the services offered to Howard through his school
district. According to the juvenile court, and as confirmed by the testimony of Howard’s
high school principal, the school district provided Howard with counseling, progressive
discipline, and an escort to walk with him at school so he would not skip class or leave
school grounds. The juvenile court found that despite these measures, Howard
continued to skip class and leave school without permission, “amassing more disciplinary
referrals during the 2013-2014 school year than any other student in the entire Dayton
Public School District.” [Entry] On Remand Motion to Relinquish Jurisdiction and
Transfer to General Division (Mar, 9, 2016), Montgomery County Court of Common Pleas
Juvenile Division Case No. 2014-2297, p. 3. The testimony of Howard’s principal
indicated that Howard was expelled as a freshman after more than 40 incidents of
skipping class and leaving the building during school hours. Howard was also disciplined
for coming to school smelling of marijuana. The juvenile court noted that it was troubled
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by Howard’s “total failure to avail himself of any of the aid offered to him through the
educational system and his consistent and escalating disregard for the educational
system, both disciplinarily and academically.” Id.{¶ 33} The juvenile court also found that it only “had little more than three years to
rehabilitate [Howard], whose increasingly delinquent behavior provides absolutely no
indication that [he] would respond positively to rehabilitation.” Id. With regard to
Howard’s increased delinquent behavior, the juvenile court noted that Howard’s second
robbery offense had increased in severity and violence as compared to his first offense.
We note that “Ohio courts have repeatedly recognized that ‘[t]he more serious the
offense, the less amenable the juvenile will be to rehabilitation in the juvenile system.’ ”
Johnson, 2015-Ohio-96, 27 N.E.3d 9 at ¶ 43, quoting West, 167 Ohio App.3d 598, 2006-
Ohio-3518, 856 N.E.2d 285 at ¶ 24, citing Watson, 47 Ohio St.3d 93 at 95, 547 N.E.2d
1181, and State v. Lopez, 112 Ohio App.3d 659, 662, 679 N.E.2d 1155 (9th Dist.1996).
The juvenile court also considered that Howard’s only remorse for his offenses was that
one of the victims was old.
{¶ 34} Although the juvenile court may not have touched on all the information this
court found lacking in D.H., 2d Dist. Montgomery No. 26383, 2015-Ohio-3259, we
nevertheless find that the juvenile court’s transfer decision on remand was not an abuse
of discretion. We reach this decision because the juvenile court weighed the required
statutory factors and provided specific reasons for finding Howard unamenable to care
and rehabilitation in the juvenile justice system, all of which were rationally supported by
the record. Accordingly, Howard’s sole assignment of error is overruled.
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Conclusion
{¶ 35} Having overruled Howard’s sole assignment of error, the judgment of the
juvenile court and Howard’s conviction in the trial court is affirmed.
HALL, J., concurs.
DONOVAN, J., concurring:
{¶ 36} In D.H.’s first direct appeal we lacked a meaningful record for appellate
review. Now we have it. Thus, I concur in the judgment.
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Copies mailed to:
Mathias H. Heck, Jr.
Heather N. Jans
Brock A. Schoenlein
Hon. Mary Katherine Huffman