In re C.L.
Ostrowski Law Firm Co., L.P.A., and Andrea G. Ostrowski, for appellant.
HENDRICKSON, J.
{1} Appellant, C.L., appeals a decision of the Warren County Court of Common Pleas, Juvenile Division, adjudicating him delinquent for illegal use of a minor in nudity-oriented material or performance. For the reasons detailed below, we affirm.
{2} In the summer of 2020, 13-year-old E.R. and 14-year-old M.B. were best friends. They cheered together and were in the same grade at school. At the beginning of
{3} E.R. became further convinced of M.B.‘s involvement when she learned of text messages sent through Snapchat between M.B. and C.L. In the messages, M.B. asked C.L. if he had sent the photograph to anyone else. C.L. responded that he “didn‘t show many people,” and then added “only football players.” M.B. replied, “we are all getting in trouble now probably.”
{4} When E.R. returned home, she was very upset and told her mother that M.B. “had sent out a picture of her to some boys.” She then described the photograph to her mother. Later that night, E.R.‘s mother saw the Snapchat conversation between M.B. and C.L. and decided to call the police.
{5} Deputy Kenneth Coleman responded to E.R.‘s home. E.R. had already gone to bed so Deputy Coleman only spoke to her mother. The following day, E.R. and her mother went to the police station where they spoke with Deputy Coleman. During that meeting, E.R.‘s mother provided written consent to search E.R.‘s phone.
{6} Based upon the information provided, Deputy Coleman proceeded to M.B.‘s residence where he spoke with M.B, obtained a statement from her, and collected her phone pursuant to a written consent to search.
{7} Deputy Coleman then went to C.L.‘s residence. Deputy Coleman advised C.L.‘s father that he had received information that C.L. had received a nude photograph of a minor and then sent the photograph to several others. He also conveyed the substance
{8} On October 14, 2020, C.L. was charged by complaint in the juvenile court for illegal use of a minor in nudity-oriented material or performance in violation of
{9} After considering the testimony and exhibits presented at trial, the juvenile court found that the state had proven the elements of the offense beyond a reasonable doubt and adjudicated C.L. as delinquent. C.L. now appeals, raising three assignments of error for review. For ease of discussion, we will address C.L.‘s assignments of error out of order.
{10} Assignment of Error No. 3:
{11} THE TRIAL COURT ERRED WHEN IT OVERRULED THE MOTION TO SUPPRESS WHEN THE DEFENDANT AND HIS PARENT DID NOT KNOW HE WAS THE SUBJECT OF THE INVESTIGATION.
{12} In his third assignment of error, C.L. alleges the juvenile court erred by denying his motion to suppress because he and his father were unaware that C.L. was the subject of the investigation. We overrule C.L.‘s argument.
{13} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, 15. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in order to resolve factual questions and evaluate
{14} In order to determine whether a confession given by a juvenile is voluntary, “the court should consider the totality of the circumstances, including the age, mentality and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; and the existence of physical deprivation or inducement.” In re Howard, 119 Ohio App.3d 33, 41-42 (12th Dist.1997), citing In re Watson, 47 Ohio St. 3d 86 (1989), paragraph one of the syllabus. A juvenile‘s confession is not rendered involuntary where the juvenile does not have either a parent or an attorney present. Id.
{15} C.L. does not allege that he was subjected to physical abuse, threats, or any other improper coercive treatment. Rather, he claims that the statements he made to Deputy Coleman were involuntary based on his claim that Deputy Coleman “did not tell the [C.L.‘s father] or the child that the child was the focus of an investigation.”
{16} We find C.L.‘s argument to be without merit. In this case, Deputy Coleman first contacted C.L.‘s father and stepmother. This entire incident, including Deputy Coleman‘s subsequent conversation with C.L., was captured on audio recording. The recording indicates that Deputy Coleman advised C.L.‘s father that he had information that C.L. received a photograph of a nude minor and sent the photograph to another person. He also discussed the Snapchat conversation between C.L. and M.B. in which C.L. admitted to sending the photograph to a few people and M.B. indicated that they were going to get
{17} Contrary to the arguments C.L. raised during the suppression hearing or in this appeal, Deputy Coleman did not improperly imply or suggest that he was only investigating M.B. In fact, the record reflects that Deputy Coleman specifically warned of potential criminal implications. The conversation occurred in the entryway and dining room in C.L.‘s home and lasted approximately 20 minutes. Because C.L. was not in custody, Deputy Coleman did not provide Miranda warning. See State v. Biros, 78 Ohio St.3d 426, 440 (1997) (“Only custodial interrogation triggers the need for Miranda warnings“).
{18} Upon our review, we find the record supports the decision that, based upon the totality of the circumstances, C.L.‘s decision to speak with Deputy Coleman was voluntary, knowing, and intelligent. The trial court did not err by denying C.L.‘s motion to suppress. C.L.‘s third assignment of error is overruled.
{19} Assignment of Error No. 1:
{20} THE EVIDENCE WAS INSUFFICIENT TO SUPPORT APPELLANT‘S CONVICTIONS, AND THE VERDICT WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
{21} In his first assignment of error, C.L. argues the juvenile court‘s decision adjudicating him delinquent for illegal use of a minor in nudity-oriented material or performance was based on insufficient evidence and was against the manifest weight of the evidence. We find C.L.‘s argument is without merit.
{22} The standards of review applied in determining whether a juvenile court‘s finding of delinquency is supported by insufficient evidence or is against the manifest weight of the evidence are the same standards applied in adult criminal convictions. In re D.L.B., 12th Dist. Fayette No. CA2011-09-019, 2012-Ohio-3045, 29.
{23} When reviewing the sufficiency of the evidence supporting a criminal conviction, an appellate court examines the entire record to determine whether the evidence, if believed, would convince the average mind of the defendant‘s guilt. State v. Kinsworthy, 12th Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 52. 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, paragraph two of the syllabus.
{24} A manifest weight challenge scrutinizes the proclivity of the greater amount of credible evidence, offered at a trial, to support one side of the issue over another. State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. In assessing whether a conviction is against the manifest weight of the evidence, a reviewing court examines the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses, and determines whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34.
{25} Because a finding that a conviction is supported by the manifest weight of the evidence also necessarily includes a finding that it is supported by sufficient evidence, the determination that a juvenile court‘s delinquency finding is supported by the manifest weight of the evidence will also be dispositive of an appellant‘s sufficiency claim. In re K.F., 12th Dist. Butler No. CA2009-08-209, 2010-Ohio-734, 11.
{26} Pursuant to
{27} The Ohio Supreme Court interpreted
{28} C.L. asserts that the photograph does not involve lewd exhibition or a graphic focus on genitals and therefore does not satisfy the definition of “nudity” as prohibited in
{29} In Kerrigan, the Second District analyzed the items seized from the defendant in terms of their lewdness. Id. at ¶¶ 28-30. The materials consisted of videos documenting various European movements, similar to nudism, in which men and boys of various ages trained in a gymnasium, were instructed in boxing technique, swam in a pool, took a communal shower, and participated in a nudist family‘s everyday life. Id. at ¶¶ 23-51. The
{30} Following review, we find the trial court did not err by adjudicating C.L. a delinquent child for violation of
{31} C.L. separately argues that his conviction cannot be sustained because the state failed to establish when the photograph was taken or when he received it. However,
{32} Assignment of Error No. 2:
{33} THE TRIAL COURT ERRED WHEN IT ALLOWED THE COMPLAINT TO BE AMENDED DURING THE ADJUDICATORY HEARING.
{34} C.L.‘s second assignment of error alleges the juvenile court erred when it allowed the state to amend the complaint. C.L.‘s argument is without merit.
{35} A trial court‘s decision to amend a juvenile delinquency complaint will not be reversed absent an abuse of discretion. In re K.L.R., 12th Dist. Warren No. CA2015-03-030, 2015-Ohio-4453, ¶ 11. An abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{36}
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.
{37} In the present case, the original complaint filed against C.L. stated:
On or about August 16, 2020, * * * [M.B.] was a guest at [E.R.‘s] home * * *. While at the residence, [E.R.] and [M.B.] were in the same room as [E.R.] changed her clothes. While [E.R.] was nude, [M.B.] took a photo of her and shared the photo with a juvenile male identified as [C.L.]. [C.L.] shared the photo with other students at school.
{38} During trial, the state orally amended the date of the complaint to encompass the date the investigation began. Thus, the amendment specified that the conduct occurred sometime between the date listed in the complaint through September 15, 2020. The trial court permitted the amendment, noting that the state was not amending any factual allegations, merely the date.
{39} Following review, we find the juvenile court did not abuse its discretion in permitting the amendment. This court has repeatedly held that dates and times in an indictment are not essential elements of an offense and have upheld amendments to dates in indictments. State v. Bokeno, 12th Dist. Butler No. CA2011-03-044, 2012-Ohio-4218, 35-36; State v. Collingsworth, 12th Dist. Brown No. 2003-10-012, 2004-Ohio-5902, ¶ 24. Here, the amendment did not change the name or identity of the violation. C.L. was not prejudiced by the amendment and would not have altered his defense. C.L. admitted to possessing and distributing the photograph and the amendment did not alter the charged conduct. Accordingly, we find the juvenile court did not err by permitting the amendment. C.L.‘s second assignment of error is overruled.
{40} Judgment affirmed
PIPER, P.J., and BYRNE, J., concur.