In re J.H.
Decided: February 22, 2013
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Beverly Newell Hancock, for appellant.
Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellee.
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SINGER, P.J.
{¶ 1} Appellant appeals his adjudication as delinquent by the Erie County Court of Common Pleas, Juvenile Division. Because we conclude that there was sufficient evidence to find appellant committed what would have been the offense of attempted vandalism, had he been an adult, we affirm.
{¶ 2} On July 18, 2010, then 16-year-old appellant, J.H., was being watched in a cell at the Erie County Juvenile Detention Center because he had attempted to harm himself. According to the correction officer watching appellant, at some point the youth became agitated and began to “rant and rаve.” Later, appellant stood on his bed and began to repeatedly strike the fire sprinkler in his cell with a book. He continued this behavior for some time until the book disintegrаted. The sprinkler was undamaged.
{¶ 3} On August 6, 2010, authorities file a delinquency complaint against appellant, alleging that his behavior on July 18 constituted the offense of attempted vandalism in violation of
{¶ 4} At the hearing, the correction officer testified to appellant‘s mistreatment of the fire sprinkler. The administrator of the detention center testified that, if the sprinkler head had been broken, the water tо the system would need to be shut off and a contractor engaged to replace the sprinkler. During the time it took to get someone to replace the sprinkler head, the operation of the facility would be disrupted as staff would be required to stand fire watch and the fire department would need to be on standby. The administrator testified that the detention center is a governmental function.
{¶ 5} At the conclusion of the state‘s evidence, appellant moved to dismiss the complaint. Appellant argued that appellant had been charged under the portion of the statute that dealt with business entities rather than governmental facilities. The
{¶ 6} When the magistrate issued his decision, he was persuaded by appellant‘s argument that the section of the vаndalism statute under which appellant was charged was inapplicable on these facts. Nonetheless, the magistrate recommended that appellant be аdjudicated delinquent, finding he violated the lesser included offense of criminal damaging.
{¶ 7} Appellant filed objections to the magistrate‘s decision. On review, the court concluded that the magistrate erred in finding that
{¶ 8} From this judgment, appellant now brings this appeal. Appellant sets forth the following two assignments of error:
I. The trial court erred in finding that magistrate‘s finding that criminal damaging in violation of
R.C. 2909.05(A)(1) is lessеr [sic] included offense of attempted vandalism in violation ofR.C. 2909.05(B)(1)(b) was permissible and using improper finding as a basis to find the youth delinquent for the initial offense[.]II. The juvenile trial court‘s finding that one “sprinkler” in one cell that was not broken was necessary in order for Erie County to engage in its
business to run a juvenile detention center was against the manifest weight of thе evidence and insufficient as a matter of law and the court erred in finding that the juvenile was delinquent for violating R.C. 2909.05(B)(1)(b) [.]
I. Magistrate‘s Decision
{¶ 9} As nearly as we can interpret appellant‘s first assignment of еrror, appellant argues: 1) criminal damaging is not a lesser included offense of vandalism, 2) the magistrate acted improperly in finding a lesser included offense, and 3) the finding of сriminal damaging was an improper basis to find appellant delinquent.
{¶ 10} Criminal damaging is a lesser included offense of vandalism. In re J.W., 12th Dist. Nos. CA2004-02-036, CA2004-03-061, 2004-Ohio-7139, ¶ 14-15. A trier of fact may consider lesser included offenses. State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), paragraph one of the syllabus. Any child, except a juvenile traffic offender, may be adjudicated delinquent if he or she violates a state or federal law or local ordinance and such violation would be an offense if committed by an adult.
{¶ 11} Accordingly, appellant‘s first assignment of error is not well-taken.
{¶ 12} A verdict or finding may be overturned on appeal if it is either against the manifest weight of the evidence or because there is an insufficiency of evidence. In the former, the appeals court acts as a “thirteеnth juror” to determine whether the trier of fact lost its way and created such a manifest miscarriage of justice that the conviction must be overturned and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In the latter, the court must determine whether the evidence submitted is legally sufficient to support all of the elements of the offense charged. Id. at 386-387. Specifically, we must determine whether the state has presented evidence which, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The test is, viewing thе evidence in a light most favorable to the prosecution, could any rational trier of fact have found the essential elements of the crime proven beyond а reasonable doubt. Id. at 390 (Cook, J., concurring); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. See also State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978); State v. Barnes, 25 Ohio St.3d 203, 495 N.E.2d 922 (1986).
{¶ 13} In material part,
(B) (1) No person shall knowingly cause physical harm to property that is owned or possessed by another, when either of the following applies:
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(b) Regardless of the value of the property or the amount of damage done, the property or its equivalent is necessary in order for its owner or possessor to еngage in the owner‘s or possessor‘s profession, business, trade, or occupation.
{¶ 14} This provision is applicable to damages inflicted upon property used in gоvernmental operations. State v. Dunfee, 177 Ohio App.3d 239, 2008-Ohio-3615, 894 N.E.2d 359, ¶ 28 (2d Dist.).
{¶ 15} One acts knowingly “when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature * * *.”
{¶ 16} In this matter, construing the evidence in a light most favorable to the prosecution, reasonable minds could conclude that appellant repeatedly struck the fire sprinkler in his cell with a book, knowing that this act would likely damage the sprinkler. There was no suggestion that appellant lacked the intеlligence or comprehension to appreciate this likelihood. It appears that, if the book had not fallen apart, he would have succeeded.
{¶ 17} The detention center administrator testified that had appellant been successful in damaging the sprinkler in his cell, the water would need to be turned off to
{¶ 18} With respect to the weight of the evidence, we have carefully reviewed the record of these proceedings and find nothing to suggest that the trier of fact lost his way or any manifest injustice resulted. Appellant‘s second assignment of error is not well tаken.
{¶ 19} On consideration whereof, the judgment of the Erie County Court of Common Pleas, Juvenile Division, is affirmed. It is ordered that appellant pay the court costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
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JUDGE
Arlene Singer, P.J.
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JUDGE
Stephen A. Yarbrough, J.
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JUDGE
CONCUR.
This decision is subject to further editing by the Supremе Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.