IN RE: E.B., ADJUDICATED DELINQUENT CHILD
CASE NO. 2-17-21
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
April 30, 2018
[Cite as In re E.B., 2018-Ohio-1683.]
SHAW, J.
Aрpeal from Auglaize County Common Pleas Court Juvenile Division Trial Court No. 2017 DEL 140 Judgment Affirmed
Rob C. Wiesenmayer, II for Appellant
Nicholas A. Catania and Andrew J. Hinders for Appellee
SHAW, J.
{¶1} Appellant, E.B., appeals the October 2, 2017 judgment of the Auglaize County Court of Common Pleas, Juvenile Division, committing her to the custody of a juvenile detention center for a period of 30 days, with 20 days suspended, and placing her on community control and intensive probation for an indefinite period of time up to age 21, following her adjudication as a delinquent child for her сonduct comprising the offense of felonious assault, in violation of
Adjudication in Mercer County
{¶2} On January 9, 2017, a complaint was filed in Mеrcer County Juvenile Court was filed alleging E.B. to be a delinquent child based upon allegations that she knowingly committed serious physical harm to the victim, L.M., also a minor, by striking L.M. in the head causing her to suffer from a concussion, lacerations, bruises and eye injuries. The complaint specified this allegation as Count One, Felonious Assault, in violation of
{¶3} On January 23, 2017, E.B. appeared in court with her parents, where she was advised of her rights and the possible penalties and a denial was entered on her behalf.
{¶4} On April 18, 2017, E.B. filed a motion requesting the Mercer County Juvenile Court to determine the admissibility of cell phone video, which purportedly depicted the incident between E.B. and L.M. and was being proffered as evidence by the prosecution. The Mercer County Juvenile Court subsequently held a hearing on the matter and based upon the testimony presented, determined the video to be authenticated pursuant to Evid.R. 901, and permitted it to be used as evidence during the adjudicatory hearing. (See Doc. No. 1-HH).
{¶5} On July 10, 2017, the matter proceeded to trial. Several witnesses testified for both sides, including L.M.‘s pediatrician who testified to the causes and nature of her injuries, and the cell phone video was presented over E.B.‘s objection. At the conclusion of the еvidence, the Mercer County Juvenile Court found beyond
Disposition in Auglaize County
{¶6} On September 28, 2017, E.B. appeared with her parents and legal counsel before the Auglaize County Juvenile Court for disposition of the case. The Auglaize County Juvenile Court heard closing arguments from each side and reviewed a confidential file containing reports of E.B.‘s conduct since the December 2, 2016 incident, which contained indicia of E.B.‘s continued poor decision making and lack of progress in academics at school.
{¶7} As part of disposition, the Auglaize County Juvenile Court committed E.B. to the legal custody of the Ohio Department of Youth Services (“DYS“) for institutionalization for an indefinite term consisting of a minimum of one year and a maximum period not to exceed her attainment of age 21. However, the Auglaize County Juvenile Court suspended the DYS commitment, and instead committed her to the custody of a juvеnile detention center for a period of 30 days, with 20 days
{¶8} E.B. filed this appeal, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN ADJUDICATING THE MINOR CHILD DELINQUENT AS THERE WAS NOT A SUFFICIENT AMOUNT OF EVIDENCE FOR THE TRIAL COURT TO FIND THAT THE STATE HAD ESTABLISHED ALL THE ELEMENTS OF
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT‘S DECISION ADJUDICATING THE MINOR CHILD DELINQUENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR NO. 3
THE ATTORNEY APPOINTED TO REPRESENT THE MINOR CHILD IN THIS CASE DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL.
{¶9} For ease of discussion, we elect to address the first and second assignments of error together.
First and Second Assignments of Error
{¶10} In hеr first and second assignments of error, E.B. challenges the Mercer County Juvenile Court‘s adjudication of her as a delinquent child.
Standard of Review
{¶11} The standard of review employed by this Court in determining whether a juvenile‘s adjudication as a delinquent child was supported by sufficient evidence is the same as the standard usеd in adult criminal cases. In re Washington, 81 Ohio St.3d 337, 339 (1998); In re B.T.B., 12th Dist. Butler No. CA2014-10-199, 2015-Ohio-2729, ¶ 16. The relevant inquiry in reviewing a claim of insufficient evidence 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. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 70, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. In other words, sufficiency of evidence is a “legal standard that tests whether the evidence introduced at trial is legаlly sufficient to support a verdict.” In re D.M., 10th Dist. Franklin No. 15AP-763, 2016-Ohio-3270, ¶ 29, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52 (1997).
{¶12} Just as with the sufficiency of the evidence standard of review, the standard of review employed by this Court in determining whether a juvenile‘s
Analysis
{¶13} In the case sub judice, E.B. was adjudicated a delinquent child by reason of violating
{¶14} Even though the teenagers’ testimonies varied to a degree regarding each individual‘s accountability giving rise to the altercation between E.B. and L.M., the facts distilled from the evidence indicated that L.M. and/or B.S. had exchanged words with E.B. over L.M.‘s cell phone immediately prior to the incident occurring. B.S. and L.M. had at that point already left the store and were travelling to another location, when B.S. drove bаck to the store‘s parking lot to engage E.B.
{¶15} The cell phone video clearly depicts the subsequent episode in the Walmart parking lot, which shows E.B. standing next to the opened passenger side door of B.S.‘s vehicle where L.M. is seated in the passenger seat. While being encouraged by the other teenagers standing around the vehicle, and aware of the incident being recorded, E.B. repeatedly tells L.M. to get out of the car. At one point, E.B. informs L.M. “if I have to pull you out, it‘s going to be worse. Like, you‘re going to be on the ground and give me an advantage.” (State‘s Ex. C at 0:00:12). Despite L.M. remaining in the vehicle and telling E.B. to leave her alone,
Sufficiency: Serious Physical Harm
{¶16} On appeal, E.B. maintains that the trial court‘s adjudication of her as a delinquent child by reason of committing felonious assault was erroneous because the prosecution failed to present sufficient evidence establishing that E.B. caused serious physical harm to L.M. Section 2901.01(A)(5) of the Revised Code defines “serious physical harm to persons” to mean any of the following:
(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.
{¶17} At the adjudicatory hearing, L.M. testified to her physical interaction with E.B. in B.S.‘s vehicle. L.M. recalled putting her hand up to protect her face from E.B. because the bystanders were tеlling E.B. to drag L.M. out of the car and hit her. L.M. recalled at that point E.B. began to strike her and tried to remove her from the car. L.M. described E.B. punching her and kneeing her in the head and pulling her hair during the altercation. L.M. recalled E.B. pulling L.M.‘s glasses off of her face and throwing them over the adjacently parked cars. L.M. explained that she propped her feet against the door so that E.B. could not remove her from the vehicle and then B.S. drove away with the door open.
{¶18} L.M. admitted that she refused medical treatment at the scene, however, she explained that she visited the emergency room hours later, on the morning of December 3, 2016, with complaints of severe headaches and eye pain.2 She returned to the emergency room on December 5, 2016, when her symptoms did not improve. L.M. recalled that she was given medication for her headaches and was referred to her pediatrician, Dr. Aganon.
{¶20} Dr. Aganon referred L.M. to an Ophthalmologist due to her complaints of pain in the periorbital region and to a Neurologist for the concussion. L.M. attended a concussion clinic eleven days after the incident and continued to report experiencing a great deal of pain. He recalled thаt L.M.‘s symptoms worsened after testing was done. Dr. Aganon opined that L.M. suffered from some temporary substantial incapacity as a result of the concussion. (Doc. No. 38-C at 74). He explained that, with a concussion, symptoms can be exacerbated by activity, either physical or mental, and that the remedy is to allow the brain to rest. Therefore, he advised L.M. not to go to school and to refrain from movies, texting, reading, homework, and television, until she was re-evaluated.
{¶21} L.M. recalled missing two weeks of school and work immediately after the incident with E.B. She saw an eye specialist who gave her eye drops for
{¶22} The prosecution‘s evidence demonstrated that L.M. suffered from prolonged periorbital pain and headaches, as well as a concussion, which involved L.M. having “some temporary, substantial incapacity.” See
{¶23} After reviewing the trial transcript and the evidence presented therein, we believe that the evidence of “serious physical harm” was established in the prosecution‘s case-in-chief such that reasonable minds could reach the conclusion
Manifest Weight
{¶24} Turning to her second assignment of error, E.B. claims that the trial court‘s adjudication of her as a delinquent child for felonious assault was against the manifest weight of the evidence. Notably, E.B. does not raise any particular argument under this assignment of error, nor does she specifically cite to any portion of the record to support this position on appeal. Rather, E.B. summarily argues that her adjudication was against the manifest weight of the evidence.3
{¶25} However, in reviewing the cross-examination of the prosecution‘s witnesses by E.B.‘s trial counsel and the evidence presented in her defense at the adjudicatory hearing, we can surmise that E.B. disputed she initiated the altercation with L.M., due to the fact that some of the defense witnesses testified to an acrimonious history between L.M. and E.B., which inсluded harsh words exchanged over the phone immediately prior to the incident. E.B. also challenged the allegation that she caused L.M. serious physical harm, based on the fact that the cell
{¶26} Notwithstanding E.B.‘s arguments, the trial court apparently accepted L.M.‘s testimony which, if believed, demonstrated that E.B. knowingly struck her in the head and resulted in her suffering prolonged eye pain, headaches, and a concussion, all of which caused and/or continues to cause L.M “some temporary, substantial incapacity.” See
{¶27} Specifically, the trial court stated the following when it announced its ruling and addressed E.B.:
[T]he court was disgustеd at the friends who were surrounding the car, and egging [E.B.] on. And at times due to the laughter and to some of statements, I got the distinct impression that at the time there was a little playing to the camera and to the friends.
Had you been scared, you could have called for help, you could have called your parents, you could have called a police officer instead of going to a car and issuing challenge after challenge.
You have a duty if someone is trying not to fight you, to move back and you didn‘t. Your anger at [L.M.], or whatever was causing it, you didn‘t seem to be irrational, or emotionally angry, was more wanting to settle the score, and the fact that when you did that, that [L.M.] was injured.
(Doc. No. 38-C at 131-32).
{¶28} In sum, the trial judge was free to weigh the evidence E.B. presented bearing on these issues, and to the extent it was not convincing, the trial court could assign the weight it deemed appropriate. After reviewing the recоrd, we cannot conclude that the trier of fact lost its way and committed a manifest miscarriage of justice in adjudicating E.B. a delinquent child by reason of committing felonious assault. Accordingly, the second assignment of error is overruled.
Third Assignment of Error
{¶29} In her third assignment of error, E.B. claims that she received ineffective assistance of trial counsel because counsel failed: (1) to object to “the testimony of [L.M.‘s] father” because “he was present in the courtroom and not separated from the proceedings;” (2) to object to L.M.‘s testimony regarding how the cell phone video was received as “speculation;” and (3) to object to Dr. Aganon‘s testimony because there was no request for him to be deemed an expert by the court.
{¶30} To establish an ineffective assistance of counsel claim, E.B. must show that her trial counsel‘s performance was deficient and that counsel‘s performance prejudiced her. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to make either showing defeats a claim of ineffective assistance of counsel. State v. Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.“).
{¶31} At the outset, we note that ” ‘the failure to object to error, alone, is not enough tо sustain a claim of ineffective assistance of counsel.’ ” State v. Fears, 86 Ohio St.3d 329, 347 (1999), quoting State v. Holloway, 38 Ohio St.3d 239, 244 (1988). A defendant must also show that he was materially prejudiced by the failure to object. Holloway at 244; State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 233. Additionally, tactical decisions, such as whether and when to object, ordinarily do not give rise to a claim for ineffective assistance. State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶¶ 139-40.
{¶32} Moreover, despite E.B.‘s summary assertions on appeal, the record reflects that, in addition to maintaining a physician-patient relationship with L.M.
{¶33} With respect to L.M.‘s testimony regarding the delivery of the cell phone video frоm a friend, the record demonstrates that E.B.‘s trial counsel filed a motion to determine the admissibility of the cell phone video, which resulted in a pre-trial hearing, where the trial court heard extensive testimony as to the origin and chain of custody of the video and ultimately determined the video to be admissible, thereby casting doubt on the success of an objection based upon “speculation” to L.M.‘s testimony regarding the method of delivery of the video. Notably, E.B.‘s counsel renewed his objection to the admissibility of the video at the adjudication, which was overruled by the trial court.
{¶34} Finally, there is no indication in the record that that L.M.‘s father testified, therefore E.B.‘s complaint on appeal regarding a lack of separation of witnesses appears to be unsubstantiated. Rather, the record suggests that E.B.‘s father was present during the course of the proceedings, despite providing testimоny in her defense.
{¶36} Based on the foregoing, the assignments of error are overruled and the judgment is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
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