2005 Ohio 3905 | Ohio Ct. App. | 2005
{¶ 2} Appellant, a fifteen-year-old juvenile, was charged in the juvenile court in 2004 with violating R.C.
{¶ 3} At an adjudicatory hearing in December 2004, Dawn Foiles testified that on the evening of September 12, 2004, she and her husband went for a walk. Their house has an attached garage. They left the garage door open during their walk. As she was walking back to the house, ahead of her husband, Foiles noticed "two kids walk[ing] in between two houses" across the street from her house. At the time, Foiles was at the driveway of the house next door. By the time she walked ten more feet, the children had disappeared. Foiles thought this was strange because "[w]here could they have gone that quick?" When she arrived at the end of her driveway, she saw one child, Daniel, standing outside of her garage, facing the street. As she was walking up her driveway, she then saw appellant in her garage with a 12-pack of beer under his arm. At the time, appellant was looking around at the shelves in the garage.
{¶ 4} Foiles asked appellant what he was looking for. Appellant did not reply. Foiles then told him to put the beer down. Appellant refused. At that point, Foiles was between appellant and the open garage door. Appellant was standing between Foiles' parked van and a garage wall. The police were called. By then, Foiles was blocking appellant's exit with one hand on the garage and one hand on the van. Appellant pushed Foiles out of the way and into the van and fled the scene.
{¶ 5} At that point, Foiles and her husband confronted Daniel, who was still standing next to the garage, casually smoking a cigarette. Within a few minutes, Daniel took off running. Foiles ran after him. Daniel was apprehended by a neighbor by a golf course. It was then that Foiles' husband and a neighbor noticed a red mark on Foiles' cheek. Foiles testified that because the incident in the garage happened so fast, "when [appellant] shoved me, like, my cheek right there had gotten hit some how. It was so quick I don't even know." Appellant was apprehended later that evening. Foiles testified that the two children she had earlier noticed walking between houses were appellant and Daniel.
{¶ 6} At the close of the state's case, appellant moved for dismissal on the grounds that (1) the state had failed to prove the elements of aggravated burglary, especially stealth, and (2) the court lacked jurisdiction because the state had failed to present evidence of appellant's age. The motion was denied. The juvenile court found appellant to be a delinquent child for the commission of aggravated burglary. Appellant was sentenced to serve 20 days in the Butler County Juvenile Detention Facility, given a suspended commitment of 12 months to the Department of Youth Services, and placed on official probation. Appellant appeals his adjudication, assigning two errors.
{¶ 7} Assignment of Error No. 1:
{¶ 8} "The trial court erred to the prejudice of the Defendant-Appellant in denying his motion to dismiss where the court lacked jurisdiction over the proceedings."
{¶ 9} Relying on State v. Mendenhall (1969),
{¶ 10} As an initial matter, we note that Mendenhall was decided before the Ohio Juvenile Rules were adopted on July 1, 1972, and can be distinguished on that basis. We therefore decline to follow Mendenhall. Likewise, we decline to followAutherson. Although it was decided after the adoption of the juvenile rules, the decision fails to mention and apply the rules and instead relies solely on Mendenhall, a pre-juvenile rules decision. See, also, In re McCrosky (Sept. 18, 1989), Stark App. No. CA-7820 (finding that the juvenile court did not have jurisdiction because the state failed to present any evidence of the juvenile's age).
{¶ 11} A court has jurisdiction to rule on a controversy between parties if it has obtained personal jurisdiction over the parties and possesses subject matter jurisdiction over the parties' claims. In re Burton S. (1999),
{¶ 12} By contrast, personal jurisdiction can be waived. Civ.R. 12(H). A court obtains personal jurisdiction over a defendant by service of process, or by the defendant's voluntary appearance or actions. Maryhew v. Yova (1984),
{¶ 13} A juvenile court has exclusive original subject matter jurisdiction over any child alleged to be delinquent for having committed, when younger than 18 years of age, an act which would be a crime if committed by an adult. R.C.
{¶ 14} Appellant does not, however, argue that he was in fact, or may have been, over the age of 18. He is, therefore, not challenging the court's subject matter jurisdiction. Rather, appellant argues that the court did not have personal jurisdiction because the state failed to present evidence at the adjudicatory hearing of his age.
{¶ 15} Juv.R. 22(D) provides that defenses or objections based on defects in (1) the institution of the proceedings, or (2) in the complaint, "other than failure to show jurisdiction in the court" or to the charge, "must be heard before the adjudicatory hearing." Failure to make a motion required to be made before trial is a waiver of such objection. In re Fudge
(1977),
{¶ 16} In light of the foregoing, we find that since appellant failed to challenge the juvenile court's personal jurisdiction either before or at the beginning of the adjudicatory hearing, he waived any defense based upon personal jurisdiction. See id., Burton S., and In re Atwell (Jan. 17, 1980), Cuyahoga App. No. 40719. The juvenile court therefore did not err by denying the motion to dismiss for lack of personal jurisdiction. Appellant's first assignment of error is overruled.
{¶ 17} Assignment of Error No. 2:
{¶ 18} "The trial court erred to the prejudice of [Defendant-Appellant] in making an adjudication of delinquency where the evidence was insufficient as a matter of law to sustain the adjudication."
{¶ 19} Appellant argues that the state failed to present sufficient evidence to support his adjudication of delinquency based on the charge of aggravated burglary.2 Specifically, apellant contends that the state failed to prove beyond a reasonable doubt that appellant (1) entered the garage by stealth, (2) with the purpose to commit a criminal offense, and (3) inflicted physical harm on Foiles.
{¶ 20} An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction 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." State v.Smith,
{¶ 21} Under R.C.
{¶ 22} Appellant first argues that although he was specifically charged with trespassing by stealth, the state failed to prove he entered Foiles' garage by stealth.
{¶ 23} Stealth, although undefined in the Revised Code, has been defined as "any secret, sly or clandestine act to avoid discovery, and to gain entrance into or to remain within a residence of another without permission." State v. Ward (1993),
{¶ 24} Upon viewing the evidence presented at trial in a light most favorable to the state, we find it supports a finding that appellant entered the garage by stealth. Admittedly, this is a close case. As appellant points out, the trespass occurred during the day (and not under the cover of darkness at night), and there was no testimony as to how he entered the garage.
{¶ 25} However, circumstantial evidence shows that appellant had not been invited into the garage by Mr. and Mrs. Foiles and that he entered the garage without permission. Appellant was first noticed by Foiles when he was observed walking between houses with Daniel before quickly disappearing. Such behavior triggered Foiles' suspicion. When Foiles got to her garage a minute later, appellant was already inside while Daniel was standing outside facing the street. While there was no direct evidence that Daniel acted as a lookout, this inference could have been reasonably drawn from his behavior.
{¶ 26} We therefore find that the state presented sufficient circumstantial evidence to prove that appellant entered the garage by stealth. See State v. Cayson (May 14, 1998), Cuyahoga App. No. 72712. But, see, State v. Pullen (June 25, 1992), Greene App. No. 91 CA 33.
{¶ 27} Appellant next argues that the state failed to prove that appellant entered the garage with the purpose to commit a criminal offense. Citing State v. Lewis (1992),
{¶ 28} The holding in Lewis was specifically rejected by the Ohio Supreme Court in State v. Fontes,
{¶ 29} The evidence presented at trial shows that when Foiles confronted appellant in the garage, he was holding a 12-pack of beer belonging to Foiles under his arm and was looking around at the shelves in the garage. When Foiles asked appellant to put the beer down, he refused by saying "no." It was only when he was told by Foiles that the police were going to be called that he dropped the beer and ran. Viewing this evidence in a light most favorable to the state, we find that the state presented sufficient evidence to prove that appellant entered the garage to commit a theft offense.
{¶ 30} Finally, appellant argues that the state failed to prove that he inflicted physical harm on Foiles.
{¶ 31} R.C.
{¶ 32} The evidence presented at trial shows that not long after appellant pushed her out of the way and into the van, Foiles had a red mark on her cheek. Foiles testified she did not realize she had a red mark until a neighbor noticed it after Daniel was apprehended. Foiles explained that when appellant "shoved" her, "my cheek right there had gotten hit some how. It was so quick I don't even know."
{¶ 33} Viewing this evidence in a light most favorable to the state, and in light of the clear definition of physical harm set forth in R.C.
{¶ 34} We therefore find that appellant's adjudication is supported by the sufficiency of the evidence. Accordingly, the juvenile court did not err by adjudicating appellant delinquent for committing aggravated burglary. Appellant's second assignment of error is overruled.
{¶ 35} Judgment affirmed.
Powell, P.J., and Walsh, J., concur.
