Lead Opinion
I. Facts and Procedural History
{¶ 2} A complaint was filed in the juvenile court charging 16-year-old R.W. with two counts of felonious assault, each with one-and three-year firearm specifications. The trial court held an adjudicatory hearing during which two witnesses testified for the State.{¶ 3} Sakisha Curlee testified that she was at home on June 6, 2008, when she heard people talking outside her mother's first-floor bedroom window. When she pulled back the curtain on the window, she saw R.W., who was standing close to the window. When Curlee told him to get out of the yard, R.W. responded "f — you," then pointed a gun straight up in the air and fired it four or five times. Curlee testified that R.W. was not trying to shoot her or harm her "at all." Curlee's three-year-old niece, Lanajah Bradley, was standing in the upstairs hallway by a window when R.W. fired the shots.
{¶ 4} Curlee called the police, and then went outside. She saw R.W. walking down the street to a neighbor's house, carrying the gun in a bag, so she *4 called the neighbor and told her that R.W. was coming. When the police arrived, Curlee told them where they could find R.W.
{¶ 5} Cleveland police officer Mathias Varga found R.W. at the neighbor's house. After obtaining the owner's permission to search the house, he found a handgun inside a backpack in a corner of an upstairs bedroom that was shared by R.W.'s friend and his girlfriend.
{¶ 6} R.W. was subsequently arrested and charged with two counts of felonious assault, each with one-and three-year firearm specifications; the victims were listed as Curlee and Bradley.
{¶ 7} The juvenile court found R.W. delinquent of the two charges and sentenced him to one year in the custody of the Ohio Department of Youth Services on the felonious assault charges and one year consecutive on the firearm specification.
{¶ 8} On appeal, R.W. challenges both the sufficiency and manifest weight of the evidence to support the adjudication.
II. Final Appealable Order
{¶ 9} At the outset, we address the dissent's conclusion that this case does not involve a final appealable order. {¶ 10} The dissent opines that since the disposition in this juvenile matter was omnibus, i.e., it did not resolve each adjudication of delinquency by separate *5
disposition, and additionally, since there was no separate disposition of the three-year firearm specification, pursuant to Crim. R. 32(C) andState v. Baker,
{¶ 11} As to the firearm specification, this matter is controlled by R.C.
{¶ 12} As to the dissent's requirement that there be separate dispositions for each adjudicated act of delinquency, we likewise disagree. Baker, supra, and Crim. R. 32(C) involve rules of criminal procedure; they apply to cases involving adults, not juveniles. Proceedings in juvenile court are governed by the Rules of Juvenile Procedure.
{¶ 13} The Rules of Juvenile Procedure "prescribe the procedure to be followed in all juvenile courts of this state in all proceedings within the jurisdiction of such courts ***." Juv. R. 1. For instance, juveniles do not "commit crimes"; they "engage in delinquent acts." They are not sentenced to jail or prison; they are "committed to the legal custody of the department of youth *6
services," generally for indeterminate periods. R.C.
{¶ 14} The dissent cites Huckleby, supra, which uses Crim. R. 32(C) to interpret Juv. R. 29(F). Huckleby cites no case or statute in support of this proposition, however, nor does it advance any argument or analysis in support. Further, Huckleby is not binding upon this court; it is only persuasive. Rep.R. 4(B). We are not persuaded that we should apply the Ohio Rules of Criminal Procedure and the cases decided thereunder to juvenile matters. Juvenile procedure is adequately governed by the juvenile rules, and we discern no purpose in imposing felony sentencing procedure upon juvenile delinquency dispositions.
{¶ 15} Accordingly, we hold that this case involves a final appealable order. *7
III. Sufficiency and Manifest Weight of the Evidence
{¶ 16} An appellate court's function in reviewing the sufficiency of the evidence to support a criminal conviction 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 a reasonable doubt. 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. State v. Jenks (1991), {¶ 17} While the test for sufficiency requires a determination of whether the State has met its burden of production at trial, a manifest weight challenge questions whether the State has met its burden of persuasion. State v. Thompkins,
{¶ 18} Under R.C.
{¶ 19} "Felonious assault requires a case by case analysis of the facts concurrent to the pointing of a gun." State v. Clark (June 27, 1991), 8th Dist. No. 58270. Here, the facts do not demonstrate that R.W. knowingly attempted to cause physical harm to either Curlee or Bradley, the alleged victims, when he pointed his gun straight in the air and fired several shots.
{¶ 20} It is common knowledge that a firearm is an inherently dangerous instrumentality, use of which is reasonably likely to produce serious injury or death. State v. Widner (1982),
{¶ 21} But in this case, both Curlee and Bradley were in the house when R.W. fired. Although bullets shot in the air will obviously come down somewhere, Curlee and Bradley could not have been injured when the bullets came down. As there was no risk of injury to the victims alleged in the indictment, R.W. did not knowingly attempt to cause them physical harm when he fired his gun into the air.
{¶ 22} Further, to constitute felonious assault "there must be some overt act directed toward physical harm which is beyond behavior that merely causes another to believe physical harm is imminent [the offense of aggravated menacing]." Clark, supra. Here, not only was there no overt act directed toward harming Curlee or Bradley, Curlee did not feel threatened by R.W.'s conduct and in fact testified that he was not trying to hurt her or Bradley "at all."
{¶ 23} On these facts, the State failed to produce sufficient evidence that R.W. knowingly attempted to cause physical harm to Curlee or Bradley. Accordingly, there was insufficient evidence to support the trial court's finding of delinquency on the felonious assault charges. As there was insufficient evidence, we need not address R.W.'s manifest weight of the evidence argument.
{¶ 24} Appellant's assignment of error is sustained.
Reversed; convictions ordered vacated.
It is ordered that appellant recover from appellee costs herein taxed. *10
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, J., CONCURS.
ANN DYKE, J., DISSENTS WITH SEPARATE OPINION.
Dissenting Opinion
{¶ 25} I respectfully dissent. I would decline to address the merits of this appeal, and instead, dismiss the matter for lack of a final, appealable order.
{¶ 26} This court's jurisdiction is limited to reviewing only final orders. "Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district ***." Section
{¶ 27} Juv. R. 291 governs the procedures during an adjudicatory hearing and provides in relevant part the following:
{¶ 28} "(F) Procedure upon determination of the issues.
{¶ 29} Upon the determination of the issues, the court shall do one of the following:
(1) If the allegations of the complaint, indictment, or information were not proven, dismiss the complaint;
(2) If the allegations of the complaint, indictment, or information are admitted or proven, do any one of the following, unless precluded by statute:
(a) Enter an adjudication and proceed forthwith to disposition * * *."
{¶ 30} As the majority correctly points out, two of the overriding purposes for dispositions under the juvenile chapter are to "protect the public interest and safety," and to "hold the offender accountable for the offender's actions." R.C.
{¶ 31} Accordingly, it is correct to liken Juv. R. 29(F) to Crim. R. 32(C) insofar as Crim. R. 32(C) mandates that a trial court "set forth the plea, verdict or findings, and the sentence" of a judgment of conviction. Huckleby, supra.
{¶ 32} The Supreme Court of Ohio recently interpreted Crim. R. 32(C) inState v. Baker,
{¶ 33} Thus, a trial court's ruling is interlocutory and not a final appealable order when it fails to provide a sentence on each and every offense for which a defendant is convicted. State v. Abel, 9th Dist. No. 08CA009310,
{¶ 34} As did the Third District in Huckleby, supra, I would find that Juv. R. 29(F), like Crim. R. 32(C), requires a juvenile court to render a disposition as to each count in which a juvenile is adjudicated a delinquent and the absence of a disposition on each and every count renders the juvenile court's judgment interlocutory and not a final, appealable order.
{¶ 35} In the instant matter, at the adjudicatory hearing and in its journal entry dated August 5, 2008, the juvenile court provided a blanket disposition of 12 months *13
commitment at ODYS and not separate dispositions for each of the two felonious assault adjudications. Additionally, the trial court provided a one-year commitment for the one-year firearm specification (R.C.
{¶ 36} The majority cites Rep.R. 4 for the assertion that"Huckleby is not binding upon this court; it is only persuasive." Rep.R. 4(B), however, states "(B) All court of appeals opinions issued after the effective date of these rules may be cited as legal authority and weighted as deemed appropriate by the courts." Accordingly, becauseHuckleby, supra, is the only case in the state addressing this issue, the appropriate amount of support was applied in this instance. While the majority disregards Huckleby, this case reasons through the controlling rules and advances the objective of establishing finality as set forth in Baker, supra. Moreover, it goes *14 without saying that an appellant should be informed with precision about the disposition of all of the charges leveled against him so that he may effectively mount an appeal. Accordingly, I would dismiss the appeal for lack of a final, appealable order.