IN RE: B.M.
C.A. CASE NOS. 25093 and 25206
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
December 31, 2012
2012-Ohio-6221
T.C. NOS. A-2011-9523-OE; JC2012-0678-02. (Civil аppeal from Common Pleas Court, Juvenile Division)
Rendered on the 31st day of December, 2012.
MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
MELISSA REPLOGLE, Atty. Reg. No. 0084215, 2312 Far Hills Avenue, #145, Dayton, Ohio 45419 Attorney for Defendant-Appellant
FROELICH, J.
{¶ 1} B.M. appeals from a judgment of the Montgomery County Court of Common Pleas, Juvenile Division, which adjudicated B.M. to be a delinquent child for resisting arrest in Case No. JC 2012-678 and found that B.M. had violated the terms of his
{¶ 2} For the following reasons, the judgment of the juvenile сourt will be reversed as to the adjudication for resisting arrest, and it will be reversed and remanded for further proceedings with respect to B.M.‘s violations of probation and the terms of suspended commitment.
I
{¶ 3} In January 2012, B.M., age 16, was charged with criminal damaging, domestic violence, and resisting arrest (Case No. JC 2012-678). B.M. was also charged with violations of probation and the terms of his suspended commitment, based on conditions imposed in a prior case (Case No. JC 2011-9523); in the earlier case, B.M. had been adjudicated a delinquent based on the trial court‘s finding that he had committed menacing by stalking, a felony of the fourth degree. The juvenile court held an adjudicatory hearing in February 2012 and found B.M. delinquent for resisting arrest; the juvenile court grаnted B.M.‘s motion to dismiss the criminal damaging and domestic violence charges due to insufficient evidence. The court also found that B.M. had violated his probation and the terms of his suspended commitment in the earlier case. B.M. was sentencеd as described above.
II
{¶ 4} B.M. appeals, raising two assignments of error. The first assignment of
The State failed to prove beyond a reasonable doubt that B.M. committed the charge of resisting arrest and the court‘s finding of responsibility is a manifest misсarriage of justice.
{¶ 5} B.M. contends that his adjudication for resisting arrest was supported by insufficient evidence and was against the manifest weight of the evidence.
{¶ 6} A sufficiency of the evidence argument challenges whether the State has presented adequate evidence on each element of the offense to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal сonviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In contrast, “а weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 12.
{¶ 7}
{¶ 8} One acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature.
{¶ 9} With respect to the sufficiency of the evidence, B.M. argues that the State failed to prove that he was under arrest at the time of the actions in question and, alternativеly, that if he were under arrest, the State failed to prove that he had resisted arrest recklessly or by force.
{¶ 10} The State‘s evidence established the following facts.
{¶ 11} On January 26, 2012, Miami Township Police Officer Robert Sakal responded to а call of domestic violence and criminal damaging at 2114 Mattis Drive; he was given the name of the suspect (B.M.), as well as a physical description. As he neared the home, Sakal saw B.M., who was known to him from prior encounters and who matсhed the physical description Sakal had been given. B.M. did not stop when Sakal called to him from his cruiser. When Sakal parked and exited the cruiser, blocking B.M.‘s path, B.M. asked why he was being stopped and asked Sakal to stop hassling him. Sakal informed
{¶ 12} At the cruiser, while Sakal gave B.M. a “quick pat down” fоr weapons in preparation for transporting him back to the house, B.M. called Sakal names and threatened to “beat [Sakal‘s] ass.” B.M. also tried to turn or “pull away” from Sakal as Sakal patted him down from behind. Sakal interpreted B.M.‘s mоvements as an “aggressive action” or threat, so Sakal pinned B.M. against the cruiser and handcuffed him. Sakal then reported to dispatch that B.M. was being disorderly. Sakal testified that he had decided to take B.M. into custody as soon as B.M. started making threats. B.M. did not make any other physical movements toward Sakal. B.M. was placed in the cruiser and taken to the juvenile detention facility.
{¶ 13} B.M. also testified at the hearing. B.M. stated that he was walking to see his probation officer when Sakal stopped him, that he had not heard Sakal call to him from the cruiser, and that the cruiser window had been closed. B.M. admitted to asking Sakal why he was being “harassed,” but testified that during their encounter, Sakal had “immediately” grabbed his arm and put handcuffs on him. B.M. admitted that he had turned his head to ask a question while being searched, but he denied that he had turned in a threatening way. B.M. stated that he called Sakal names and threatened him only after he had been handcuffed and placed in the сruiser.
{¶ 14} “An arrest occurs when the following four requisite elements are involved: (1) An intent to arrest, (2) under a real or pretended authority, (3) accompanied by
{¶ 15} The State‘s evidence established that, when Sakal stopped B.M., Sakal intended to detain B.M. for further investigation, and Sakal informed B.M. of this fact. As Sakal frisked B.M. from behind, B.M. began to threaten Sakal and “pulled away” or turned “a little bit” in a way that Sakal found threatening. According to Sakal‘s testimony, B.M.‘s threats occurred simultaneously with the pat down. As a result of the threats, Sakal changed his mind about the detention and decided to arrest B.M. instead, but Sakal did not communicate to B.M. that he was under arrest.
{¶ 16} Although we understand why Sakal might have felt threatened by B.M.‘s movement, coupled with his verbal threats, we see no basis to conclude that B.M. knew he was under arrest when he turned during the pat down. Even Sakal admitted that he (Sakal) did not decide to arrest B.M. until B.M. threatened to assault Sakal. Thus, even if the threat might have constituted resisting arrest under other circumstances, Sakal admitted that B.M. was only being detained, not arrested, when the threat was made. Because a reasonable person in B.M.‘s position would not have known he was under arrest, the State failed to establish one of the requisite elements of an arrest. B.M. could not have resisted arrest if he did not know he was under arrest.
{¶ 17} Moreover, even if we were to conclude that the State had proven that B.M.
{¶ 18} For these reasons, we agree with B.M.‘s argument that his conviction was supported by insufficient evidence and must be vacated. As such, we need not address his argument that his conviction was against the manifest weight of the evidence.
{¶ 19} The first assignment of error is sustained.
III
{¶ 20} B.M.‘s second assignment of error states:
B.M.‘s adjudication for violation of probation and suspended commitment was not supported by sufficient evidence.
{¶ 21} B.M. contends that, if his conviction for resisting arrest was supported by insufficient evidence, then the trial court‘s finding that he had violated the terms of his probation and the terms of his suspended commitment was also against the manifest evidence.
{¶ 22} It is not clear from the record that the juvenile court‘s findings of violations
{¶ 23} The juvenile court‘s dispositional order regarding the violations of probаtion and the terms of suspended commitment merely referred to B.M.‘s prior adjudication as a delinquent and stated that “the child could benefit from being committed to the legal custody of [DYS] for care and rehabilitation and that said commitment is the least restrictive form of treatment which is appropriate.” Because we cannot determine, on this record, whether the juvenile court‘s finding that B.M. had violated his probation and the terms of his suspended commitment was based entirely on his adjudication for resisting arrest in Case No. JC 2012-678 (which would be improper in light of our finding that resisting arrest was supported by insufficient evidence) or was based on other legitimate considerations related to the terms of the court‘s prior orders, wе will also reverse the trial court‘s judgment in Case No. JC 2011-9523, and remand this matter to the juvenile court for further proceedings. Upon remand, the juvenile court shall determine, without
{¶ 24} The second assignment of error is sustained.
{¶ 25} The judgment of the juvenile court in Case No. JC 2012-678 will be reversed insofar as it found that B.M. had resisted arrest. The judgment in Case No. JC 2011-9523 will be reversed, and the matter is remanded to the juvenile court for further proceedings consistent with this opinion.
FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
Michele D. Phipps
Melissa Replogle
Hon. Nick Kuntz