In re S.W.
2011 Ohio 5291
Ohio Ct. App.2011Background
- S.W., a minor, was adjudicated delinquent for disorderly conduct—persist after warning to desist and for a related domestic-violence allegation.
- On Feb. 5, 2010, S.W.'s guardian Brittany High and High's fiancé Renato Robinson returned home to find S.W. had invited her boyfriend D.J. without permission.
- An argument ensued; High threw a hydrogen peroxide bottle and went upstairs; S.W. retrieved a large kitchen knife and threatened to cut High's face.
- D.J. and Robinson became involved; High and S.W. fought; witnesses included High's daughter T.D., who feared for them.
- Police arrived to find everyone in the kitchen; S.W. was arrested for domestic violence; the magistrate later amended the complaint and found S.W. delinquent for disorderly conduct persist after warning and for domestic-violence-related offenses.
- The juvenile court dismissed the DV (R.C. 2919.25(C)) charge for lack of victim perception and held the persistence-disorderly-conduct charge as a lesser include offense of DV (R.C. 2919.25(A)).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether persistent disorderly conduct is a lesser included offense of domestic violence | S.W. concedes first and third Deem prongs; persistence is not needed for DV. | Persistence is not an element of DV; may still be a lesser included offense. | The court erred; persistent disorderly conduct is not a lesser included offense of DV under Deem. |
| Whether there was sufficient evidence to support disorderly conduct persist after warning | Evidence supported persistence element. | Record insufficient to prove the persistence element for the charged DV context. | Remanded; issue unresolved due to recharacterization potential and need for amendment. |
| Whether S.W. had a right to DIR/Social History prior to adjudication | DIR should have been accessible for due process. | Request deemed premature; magistrate acted with discretion. | Moot given reversal on the first assignment; DIR remains available on remand. |
Key Cases Cited
- State v. Evans, 122 Ohio St.3d 381 (2009-Ohio-2974) (modified Deem test, removed 'ever' from second prong to eliminate remote scenarios)
- State v. Deem, 40 Ohio St.3d 205 (1988) (established Deem test for lesser included offenses (elements-based))
- State v. Burgess, 79 Ohio App.3d 584 (1992) (held persistence as an element affects lesser-included analysis)
- State v. Reynolds, 25 Ohio App.3d 59 (1985) (illustrated Deem framework for lesser included offenses)
- Pennington, 150 Ohio App.3d 205 (2002-Ohio-6381) (affirmed discretion to amend complaints in juvenile cases)