In Re Good
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- Before:
- Powell
Lead Opinion
On January 30, 1996, the Butler County Court of Common Pleas, Juvenile Division, held that defendant-appellant, Milton Good, Jr., was a delinquent child. Appellant was found to have violated
On January 12, 1996, Chris Williams got into his truck and attempted to leave his grandfather’s house. Appellant, who Williams knew, approached Williams while he was starting the truck. Appellant brandished a “shiny hand pistol” and demanded that Williams turn over all of his money. Williams could not immediately drive away because his truck was in snow piled on the side of the street. Appellant then took money and jewelry from Williams. After appellant left, Williams immediately called the police and gave a description of the clothes appellant was wearing at the time of the robbery. The police arrested appellant approximately forty to fifty minutes after the robbery. Appellant’s clothing at the time of the arrest matched the description Williams had given to the police. Appellant assigns four errors in this appeal.
Assignment of Error No. 1:
“The trial court erred by denying him due process and equal protection of the law as guaranteed to him by the Sixth and Fourteenth Amendments of the United States Constitution.”
The complaint on file (“original complaint”) does not contain a firearm specification. Appellant argues that since the original complaint does not contain a firearm specification, it was improper for the court to find that appellant
In a criminal case, a court has no authority to impose the three-year sentence for offenses involving a firearm as provided in
Being found a juvenile delinquent is different from being found guilty of a crime in Ohio.
In re Agler
(1969), 19 Ohio St.2d 70, 80, 48 O.O.2d 85, 91, 249 N.E.2d 808, 814. A juvenile delinquency proceeding has different rules than a criminal trial. For example, a juvenile court hears and determines all cases without a jury,
State v. Ostrowski
(1972), 30 Ohio St.2d 34, 44, 59 O.O.2d 62, 68, 282 N.E.2d 359, 365, certiorari denied (1972), 409 U.S. 890, 93 S.Ct. 130, 34 L.Ed.2d 147, a juvenile court can conduct its hearings in an informal manner,
In the present case, the court did not commit error by finding that appellant violated
Further, even if the strict requirements of
Appellant also alleges that his due process rights were violated. Due process requires that before being found delinquent, a juvenile must be given a written notice of the alleged misconduct.
In re Gault
(1967), 387 U.S. 1, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527, 549. See, also,
The original complaint (written on the day of appellant’s arrest) states that appellant is accused of “aggravated armed robbeiy.” At the January 19, 1996 hearing, the court stated the nature of the charges against appellant and their numerical designations. At the delinquency hearing on January 30, 1996, the court again informed appellant of the possible consequences “just so it is clear for [appellant] and his mother.” There is no evidence that indicates that appellant did not receive sufficient notice of the charges against him or of the penalties. Based upon the record that exists, appellant was not denied due process. Appellant’s first assignment of error is accordingly overruled.
Assignment of Error No. 2:
“The trial court erred by finding that the offense of aggravated burglary was committed with a firearm.”
Appellant contends that the state did not prove that appellant had an operable firearm in his possession. Appellant states that the trial court could not find this fact because the weapon was never recovered, and there was no proof that the weapon was operable.
This court has previously followed the reasoning of Vondenberg in State v. Roettgers (Apr. 18, 1988), Clermont App. No. CA87-10-081, unreported, 1988 WL 38050. In a similar case, the Hamilton County Court of Appeals upheld a conviction for aggravated robbery where the victim testified that the defendant demanded money at gunpoint and the handgun was not recovered. State v. Price (1989), 52 Ohio App.3d 49, 51, 556 N.E.2d 1200, 1202-1203. It is even possible for a defendant to be convicted of aggravated robbery when the handgun used in the robbery was unloaded. State v. Meek (1978), 53 Ohio St.2d 35, 37, 7 O.O.3d 121, 122, 372 N.E.2d 341, 343.
In the present case, the victim testified that he was robbed at gunpoint with a “shiny hand pistol.” The victim also testified that he believed that the handgun was capable of being fired. Although the handgun was not recovered, the testimony of the victim is sufficient to prove that appellant possessed a firearm while committing a felony as required by
Assignment of Error No. 3:.
“The trial court erred by finding him delinquent by reason of having committed the offense of aggravated burglary.”
Appellant contends that the identification of him as the robber is not supported by the weight of the evidence. The weight to be given the evidence and the credibility of the witnesses are primarily issues to be decided by the trier of fact. State v. Hunt (Nov. 25, 1996), Butler App. No. CA96-03-044, unreported, 1996 WL 679688, following State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212. The trier of the fact has the benefit of seeing and hearing the witnesses testify, and is in the best position to determirie the facts of the case. The role of an appellate court 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 reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, 503. The trial court’s decision is not subject to reversal on appeal unless the appellate court finds that “reasonable minds could not reach the conclusion reached by the trier of facts.” Id.
Assignment of Error No. 4:
“The trial court erred by permitting testimony regarding the gun found at Bethlehem Temple.”
On the day after the robbery, a handgun was found approximately one block, from the robbery location. This evidence was presented during the trial. Appellant contends that it was improper for the handgun testimony to have been presented. Appellant reasons that since the prosecution did not link the handgun with the crime, the testimony should have been excluded.
The prosecution never argued that the handgun that was found was the same handgun used in the robbery, and the prosecutor did not move to have the handgun admitted into evidence. Appellant did not object to the handgun testimony at trial and has not shown how the evidence affected the outcome of the trial. If counsel does not object to testimony, it can be excluded only if it constitutes plain error. State v. Broom (1988), 40 Ohio St.3d 277, 288-289, 533 N.E.2d 682, 695-696, certiorari denied (1989), 490 U.S. 1075, 109 S.Ct. 2089, 104 L.Ed.2d 653. Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise. State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894, certiorari denied (1990), 498 U.S. 882, 111 S.Ct. 231, 112 L.Ed.2d 185.
The evidence relied upon by the trial judge in his finding of delinquency was the victim’s testimony. The victim testified that appellant used a small shiny pistol. While inclusion of the testimony pertaining to the found handgun has a tendency to prove that appellant committed the crime, exclusion of the evidence does not change the outcome of the trial. Appellant’s fourth assignment of error is overruled.
Each of appellant’s assignments of error is without merit.
Judgment affirmed.
William W. Young, J., concurs. Walsh, P. J., concurs in part and dissents in part.
Dissenting Opinion
concurring in part and dissenting in part.
I concur with the majority’s rulings on the second and third assignments of error although the assignments of error should refer to robbery and not burglary. However, on the first and fourth assignments of error, I must respectfully dissent.
First, I believe the majority was wrong in affirming appellant’s three-year sentence, under
Second, with regard to the fourth assignment of error, I can only wonder what salutary reason the prosecutor had for eliciting testimony concerning the “found” handgun. The prejudicial nature of the testimony far outweighs its probative value, particularly since there was no attempt made to link the handgun to appellant or his actions.
A trial court is vested with broad discretion in the admission of evidence. See State v. Hymore (1967), 9 Ohio St.2d 122, 128, 38 O.O.2d 298, 302, 224 N.E.2d 126, 130. In the absence of an objection, it may strike evidence on its own motion. Oakbrook Realty Corp. v. Blout (1988), 48 Ohio App.3d 69, 70, 548 N.E.2d 305, 307. In light of the tenuous connection between the handgun and appellant, the trial court erred by failing to exclude this damaging testimony sua sponte.