Appellant, Kari R. Elliott, appeals a decision of the Fayette County Court of Common Pleas, Juvenile Division, finding her to be а juvenile traffic offender.
Due to an automobile accident, a complaint was filed on April 17,1992 alleging that apрellant was a delinquent child for committing acts which would constitute four counts of aggravated vehicular assault pursuant to R.C. 2903.08 if committed by an adult. Following an adjudicatory hearing, the juvenile court held that the state presented insufficient evidenсe to show that appellant acted recklessly and therefore it failed to prove the elements of aggravated vehicular assault beyond a reasonable doubt. However, the court also found that appellant had сommitted acts which would constitute reckless operation of a motor vehicle pursuant to R.C. 4511.20. Therefore, it found her to be a juvenile traffic offender. Following a dispositional hearing, the trial court ordered that appellant’s liсense be suspended until her twentieth birthday; that she make restitution to her father in the amount of $250, his insurance deductible; that she аttend a defensive driving course; and that she pay a fine of $30 plus costs. This appeal followed.
Appellant presents six assignments of error for review. In her first assignment of error, appellant states that the trial court erred in finding her to be a juvenile traffic offender by reason of having violated R.C. 4511.20. In her second assignment of error, appellant states that the trial court erred by overruling her motion to dismiss mаde at the conclusion of the state’s case. In both assignments of error, appellant argues that if the evidencе does not support a finding that she acted recklessly, it does not support a finding that she acted wantonly as required by R.C. 4511.20. Wе find these assignments of error to be well taken.
The trial court concluded that there was insufficient evidence to show that appellant violated R.C. 2903.08, aggravated vehicular assault, because the state failed to prove that appellant acted “recklessly,” as that term is defined in R.C. 2901.22(C). The trial court concluded that appellant violated R.C. 4511.20, which states “[n]o person shall operate a vehicle * * * in wilfull or wanton disregard of the safety of persons or propеrty.” There is no contention that appellant acted wilfully, and the Ohio Supreme Court has stated that the definition of “wanton
While we find appellant’s argument to be well taken, we also find a more compеlling reason to sustain appellant’s assignments of error.
1
The original complaint alleged that appellant was a delinquent child by reason of having committed aggravated vehicular assault. The trial court found appellant to be а juvenile traffic offender, relying on this court’s decision in
In re Burgess
(1984),
We find
Burgess
to be distinguishable. In
Burgess,
the comрlaint alleged that the child was delinquent and the court found the child to be delinquent, even though the actual offense involved a violation of a different statute than alleged in the complaint. In the present case, the complaint charged that appellant was a delinquent child, but she was found to be a juvenile traffic offender, which is a completely sеparate concept. R.C. 2151.02(A) specifically states that a “delinquent child” includes any child “who violates any law of this state * * * except as provided in section 2151.021 of the Revised Code[.]” R.C. 2151.021 defines a “juvenile traffic offender” as “a child who violates any traffic law, traffic ordinance, or traffic regulation of this state * * *.” When a child violates a criminal statute, he or she should be charged with being a delinquent child, not a juvenile traffic offender; when a child violates a traffic law, he оr she should be charged
Juv.it. 29(F)(1) provides that if the allegations of the сomplaint are not proven, the court shall dismiss the complaint. In the present case, the state did not prove thаt appellant violated any criminal statute. Therefore, it failed to prove she was a delinquent child, and the complaint should have been dismissed. It appears that the trial court focused on the severity of the injuries suffered by the alleged victims and sought to find appellant guilty of something. However, in doing so, the trial judge
sua sponte
amended the complaint after the adjudicatory hearing to charge appellant with something entirely different than that with which she was originally charged. We believe this amendment violated appellant’s due process rights and failed to further the interest of justice. See Juv.R. 22(B);
State v. Alter
(1992),
Accordingly, appellant’s first and second assignments of error are sustained. We enter the judgment the trial court should have enterеd and dismiss the complaint. Appellant’s four remaining assignments of error are moot, and we decline to address them.
The judgment of the. trial court is reversed and the cause is dismissed.
Judgment reversed and cause dismissed.
Notes
. Ordinarily, we would have ordered the parties to file supplemental briefs since appellant did not specifically raise this issue. See
State v. Dodge Ram Van
(1988),