In re F.F.
Court of Appeals No. WD-16-031
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
November 10, 2016
2016-Ohio-7695
Trial Court No. 2016 JA 0374
Pаul A. Dobson, Wood County Prosecuting Attorney, Charles S. Bergman, Chief Assistant Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
SINGER, J.
{¶ 1} Appеllant, F.F., appeals the May 26, 2016 judgment of the Wood County Court of Common Pleas, Juvenile Division, finding her delinquent under
Assignment of Error
{¶ 2} Appellant sets forth the following assignment of error:
- THE TRIAL COURT ERRED BY ABUSING ITS DISCRETION IN FINDING THAT THE STATE OF OHIO PROVED BEYOND A REASONABLE DOUBT ALL THE ELEMENTS OF DISORDERLY CONDUCT UNDER OHIO REVISED CODE SECTION 2917.11.
Background Facts
{¶ 3} On April 13, 2016, appellant was attending the Children‘s Residential Center (CRC) for children with behavioral issues. A teacher‘s aide, or para, testified that he asked appellant to сlean up her desk. Appellant did so, but not to the satisfaction of the para. Appellant was then asked to do a more thorough job. In respоnse, appellant became agitated and frustrated and had an outburst. Appellant called the para a “little bitch,” and continued to use profanity before leaving the classroom. Appellant was arrested for causing a disturbance.
{¶ 4} The complaint, filed April 14, 2016, states:
[F.F. violated
R.C. 2917.11(A)(5) because she] did knowingly and intentionally cause а disturbance in the school at CRC by screaming and threatening staff and other students, destroying school property, attemptingto leave the grounds without authоrization, and making threats to bring a gun to school and shoot a teacher and other staff members.
{¶ 5} The para‘s testimony was the only evidence prеsented against appellant at the April 19, 2016 adjudication hearing. The para testified that appellant screamed and used profanity. The para also testified he remained calm in response to appellant‘s outburst because he frequently, almost daily, dealt with similar outbursts from CRC students.
{¶ 6} The para testified appellant left his presence during the incident and, as a result, he did not witness her actions beyond her leaving. He stated, “[FF] then becаme angry, began using profanity and things of that nature, and then screamed a name at me and then ran out of the room.” The para testified that he did not fоllow her and everything that subsequently occurred was told to him by other support staff and his supervisor.
{¶ 7} The para specifically testified he did not hear аppellant make threats, he could not confirm why other children were crying, he did not see appellant destroy property, and he did not see appellant attempt to leave the CRC premises. No other staff or supervisor testified.
{¶ 8} At the April 19, 2016 hearing, the trial court found appellant dеlinquent for a disorderly conduct violation under
Law
{¶ 9} A sufficiency of the evidenсe argument challenges whether the state has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541 (1997). An appellate court‘s function is to examine evidence admittеd at trial to determine whether such evidence would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragrаph two of the syllabus. “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.” Jenks at paragraph two of the syllabus.
Analysis
{¶ 10} In the sole assignment of error, appellant аttacks the sufficiency of the evidence. Appellee contends there was sufficient evidence because the trial court amended thе charge to a general
Violation of R.C. 2917.11(A)(5)
{¶ 11}
{¶ 12} “A person may not be punished for speaking boisterous, rude or insulting wоrds, even with the intent to annoy another, unless the words by their very utterance inflict injury or are likely to provoke the average person to an immediate retaliatory breach of the peace.” Lamm at 513, citing Cincinnati v. Karlan, 39 Ohio St.2d 107, 110, 314 N.E.2d 162 (1974). To support a conviction of disorderly conduct, the words spoken must be “fighting words.” Id.; see also State v. Wylie, 19 Ohio App.3d 180, 482 N.E.2d 1301 (8th Dist.1984), citing Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).
{¶ 13} Here, the еvidence only reveals appellant used profanity and screamed during the April 13, 2016 incident. The para testified he stayed calm during the incident, deаlt with one to three outbursts daily at CRC, and heard similar profanity often by students at CRC. He spoke of how common such an occurrence is at CRC and that no one retaliated based on appellant‘s words. Viewing the evidence in a light most favorable to the prosecution, we find that there was insufficient evidence presented to find appellant delinquent under
{¶ 14} Accordingly, appellant‘s argument regarding
R.C. 2917.11(A)(1) and (2)
{¶ 15} Appellee further argues appellant was delinquent under
{¶ 16} Pursuant to
{¶ 17}
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 сhange 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 аn adult. Where requested, a court order shall grant a party reasonable time in which to respond to an amendment.
{¶ 19}
(A) No person shall recklessly cause inconvenience, annoyаnce, or alarm to another by doing any of the following:
(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior;
(2) Making unreasоnable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any pеrson[.]
{¶ 20} Here, the evidence presented was insufficient to prove disorderly conduct, under
{¶ 21} Accordingly, appellant‘s sole assignment of error is wеll-taken.
Conclusion
{¶ 22} The adjudication of delinquency is vacated and the judgment of the Wood County Court of Common Pleas, Juvenile Division, is remanded for further proceedings consistent with this decision. Appellee is ordered to pay the costs of this appeal pursuant to
Judgment reversed.
Arlene Singer, J.
JUDGE
Stephen A. Yarbrough, J.
JUDGE
James D. Jensen, P.J. CONCUR.
JUDGE