IN RE: R.H.
C.A. No. 28319
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
September 27, 2017
[Cite as In re R.H., 2017-Ohio-7852.]
CALLAHAN, Judge.
STATE OF OHIO COUNTY OF SUMMIT ) ss: ) APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DL 14-10-1808
CALLAHAN, Judge.
{¶1} R.H. appeals a judgment from the Summit County Court of Common Pleas, Juvenile Division, that adjudicated him delinquent for aggravated riot. This Court affirms.
I.
{¶2} R.H. assaulted another juvenile while residing in the Summit County Juvenile Detention Facility. R.H. and a number of other juveniles were in a classroom when the altercation occurred. One of the juveniles was being disruptive and punched another juvenile. Immediately, multiple fights erupted in the classroom including one in which R.H. was participating.
{¶3} A complaint was filed alleging that R.H. was delinquent by reason of assault and aggravated riot. R.H. admitted that he assaulted another juvenile, but denied engaging in conduct that constituted aggravated riot. The trial court adjudicated him delinquent on both counts.
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED TO FIND AND RULE THAT
R.C. 2917.02(B)(2) IS UNCONSTITUTONAL ON ITS FACE AND/OR AS APPLIED TO APPELLANT, WHICH CONSITUTES ERROR REQUIRING REVERSAL IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE [I], SECTIONS 1, 10, & 16 OF THE OHIO CONSTITUTION.
{¶5} In his first assignment of error, R.H. challenges the constitutionality of Ohio‘s aggravated riot statute,
{¶6} Legislative enactments are entitled to “a strong presumption of constitutionality” and “will be upheld unless proven beyond a reasonable doubt to be unconstitutional.” State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, ¶ 7. The party challenging the constitutionality of a statute bears the burden of proving the statute is unconstitutional beyond a reasonable doubt. State v. Schneider, 9th Dist. Medina No. 06CA0072-M, 2007-Ohio-2553, ¶ 5.
{¶7} R.H. was adjudicated delinquent for violating
{¶8} This Court initially addresses the State‘s contention that R.H. did not challenge the words in
{¶9} In his oral motion, R.H. argued that the disorderly conduct statute, and consequently the aggravated riot statute, was overbroad and vague because it did not give notice to people of “what inconvenience, annoyance, or alarm is” and “encompasses more protected behavior than unprotected behavior.” R.H. did not mention the language in
{¶10} Because R.H. did raise his argument regarding the phrase “inconvenience, annoyance, or alarm” in
Vagueness
{¶11} R.H. first challenges that
{¶12} In support of his argument that the phrase “inconvenience, annoyance, or alarm” neither provides fair warning of what is prohibited nor an enforceable standard, R.H. relies on State v. Neal, 10th Dist. Franklin No. 97APA12-1676, 1998 WL 614628 (Sept. 1, 1998) and State v. Behling, 10th Dist. Franklin No. 87AP-435, 1987 WL 17519 (Sept. 24, 1987). Neither Neal nor Behling presented a constitutional challenge to the disorderly conduct statute.
{¶13} The Ohio Supreme Court specifically rejected a void-for-vagueness challenge to Ohio‘s disorderly conduct statute in State v. Carrick, 131 Ohio St. 3d 340, 2012-Ohio-608. In Carrick, this Court certified a conflict to the Ohio Supreme Court concerning the constitutionality of
{¶14}
{¶15} When examining the noise provision in
{¶16} Moreover, when Carrick was before this Court, this Court noted “‘in the usual course of events, it appears doubtful that a person of ordinary intelligence would fail to understand what is meant by inconvenience, alarm, or annoyance * * *‘” (Internal quotation marks omitted.) State v. Carrick, 9th Dist. Wayne No. 09CA0077, 2010-Ohio-6451, ¶ 8, quoting
{¶17} In addition, when examining “the challenged phrase [‘inconvenience, annoyance, or alarm‘] in the context it is used in [
{¶18} As a final matter on vagueness, this Court notes that while R.H. recognizes that under the void-for-vagueness doctrine a statute cannot unreasonably impinge on constitutionally protected freedoms, he does not develop an argument in this regard. R.H. merely makes the conclusory assertion “the wording [of
Overbreadth
{¶19} R.H. next argues that
{¶20} This Court rejects R.H.‘s overbreadth challenge because his argument focuses on the potential effect of certain behavior rather than the conduct prohibited by the statute. As with his vagueness challenge, R.H. challenges the use of the terms “inconvenience, annoyance, or alarm” and “turbulent” in the statute. This Court again notes that R.H. failed to make any argument regarding the term “turbulent” before the trial court and, therefore, cannot raise that issue for the first time on appeal. See Schneider, 2007-Ohio-2553, at ¶ 18, citing Awan, 22 Ohio St. 3d 120, at syllabus.
{¶21} To the extent that R.H. bases his overbreadth argument on the terms “inconvenience, annoyance, or alarm,” his analysis is flawed because those terms address an effect that certain conduct might have, but not the conduct itself.
{¶22} By failing to examine the statutorily prohibited conduct, R.H. has failed to establish that
{¶23} R.H.‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
APPELLANT‘S ADJUDICATION OF DELINQUENCY WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶24} In his second assignment of error, R.H. argues that he did not participate in an aggravated riot because, although “other altercations were occurring simultaneously,” the assault he committed “occurred spontaneously and alone.” This Court disagrees.
{¶25} This Court notes that R.H.‘s argument could be read as a challenge to the sufficiency of the evidence rather than the weight of the evidence. A challenge to the sufficiency of the evidence concerns the State‘s burden of production, while a challenge to the manifest weight of the evidence concerns the State‘s burden of persuasion. State v. Thompkins, 78 Ohio St. 3d 380, 390 (1997) (Cook, J., concurring). To the extent that R.H. argues that the State failed to meet its burden of persuasion in demonstrating his participation, this Court will address the manifest weight of the evidence as challenged in his captioned assignment of error. See State v. Hayes, 9th Dist. Summit No. 26388, 2013-Ohio-2429, ¶ 9.
{¶26} Weight of the evidence concerns whether the greater amount of credible evidence produced at trial supports one side over the other side. Thompkins, 78 Ohio St. 3d at 387. When considering a manifest weight challenge,
State v. Otten, 33 Ohio App. 3d 339, 340 (9th Dist.1986). This discretionary power is reserved for exceptional cases in which the evidence weighs heavily against the conviction. Id.
{¶27} R.H. was adjudicated delinquent for violating
{¶28} R.H. stipulated that he was an inmate in a detention facility and that he committed an assault, which is an offense of violence. The only issue he raises is whether the evidence supports the conclusion that he “participate[d]” as required in
{¶29} The evidence presented at trial consisted of the testimony of Detention Officer Jimmy Oliver and a surveillance video of the classroom. Officer Oliver testified that initially he was the only detention officer in the classroom. Shortly before class was to begin, he was issuing a violation to a juvenile who was being disruptive. That juvenile, then, punched another juvenile. At that point, “everything just sprung off” with fights happening around the room.
{¶31} On cross-examination, Officer Oliver testified that he was not sure how long R.H. had been in the detention center prior to the altercation. When asked if he knew whether R.H. knew any of the other juveniles, Officer Oliver responded that he did not “know who they associate with when they‘re out.” He further indicated that taunting, teasing, and bullying occur in the detention hall, but he did not know if there had been any between R.H. and the juvenile he assaulted.
{¶32} The video shows Officer Oliver, a teacher, and multiple juveniles in the classroom. After the first juvenile throws a punch, other juveniles begin fighting. The video also shows some juveniles backed away, in an apparent attempt to stay out of the melee.
{¶33} R.H. acknowledges that Officer Oliver was present during the incident, but he contends that Officer Oliver “was only able to testify to what other detention officers had told him and what he had viewed on the video after the incident had occurred.” R.H. did not object to Officer Oliver‘s testimony concerning what the other officers told him and the parties stipulated to the video. Moreover, Officer Oliver testified to his personal observations that morning describing the sequence of events including his observation of multiple juveniles fighting.
{¶34} Officer Oliver‘s testimony as to what the other officers told him was limited. He stated that “they said it was difficult to separate the two [and R.H.] was the aggressor.” Whether R.H. was the aggressor relates to the assault charge, which he admitted.
{¶35} With respect to the video, Officer Oliver testified that “as the fight was going on, [he] couldn‘t distinguish which kid[] was doing what.” He further testified that, when the video
{¶36} R.H. makes much of the fact that Officer Oliver was unaware of any relationships among the juveniles. R.H. argues that an aggravated riot requires a relationship among the participants and a plan to act in a unified fashion.
{¶37} While acknowledging the existence of
{¶38} R.H. and the dissent note the “corporate” nature or purpose of an aggravated riot. In doing so, they rely respectively on In re Jesse S., 129 Ohio App. 3d 394 (6th Dist.1998) and State v. Brandon, 2d Dist. Greene No. 88 CA 57, 1989 WL 72232. Both In re Jesse S. and
{¶39} A primary distinction between disorderly conduct and aggravated riot is the number of people involved. Compare
{¶40} Prior to the disruption, Officer Oliver was the only detention officer in the classroom along with the teacher and the juveniles. He indicated that he separated the two individuals involved in the initial fight, but other detention officers had to respond to help separate the remaining individuals. The danger posed by this increased level of participation among the juveniles is self-evident. Contrary to R.H.‘s argument, he was not merely involved “in a separate physical altercation.” He participated with four or more others in the course of disorderly conduct, which constitutes an aggravated riot.
{¶42} In the present case, the evidence supports the trial court‘s determination that R.H. “participate[d] with four or more others in a course of disorderly conduct.” See
{¶43} R.H.‘s second assignment of error is overruled.
III.
{¶44} R.H.‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
SCHAFER, P. J.
CONCURS.
CARR, J.
DISSENTING.
{¶45} I respectfully dissent in regard to the second assignment of error.
{¶46} This Court has previously held that the aggravated riot statute does not require that the State prove that the participants “acted in concert” throughout the entirety of the pertinent factual sequence. State v. Covey, 9th Dist. Lorain No. 03CA008272, 2004-Ohio-30, ¶ 6. In reaching this conclusion, we relied on the Second District‘s decision in State v. Brandon, 2d Dist. Greene No. 88 CA 57, 1989 WL 72232 (June 28, 1989). Brandon involved a scenario where a group of six men, armed with guns, traveled to a local college campus to confront a rival
{¶47} Here, Officer Oliver admitted during his testimony that as the incident was ongoing, he “couldn‘t distinguish which kid[] was doing what.” Even upon reviewing the video and conferring with his fellow officers, Officer Oliver‘s testimony established that, at most, R.H. engaged in a fight with one other individual. Significantly, there is no evidence that R.H.‘s actions were connected to the actions of the other individuals involved in the classroom incident. The State did not present evidence in this case that the scope of R.H.‘s participation extended beyond his involvement in a one-on-one altercation, nor did the State establish that R.H. acted with the same corporate purpose as other individuals involved in the incident. Under these circumstances, I would conclude that the State failed to present sufficient evidence to demonstrate that R.H. “participate[d] with four or more others in a course of disorderly conduct” with the purpose of facilitating the assault in violation of
JASON D. WALLACE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.