In re S.K.H.
- Reporters:
- ,
- Before:
- Hendrickson, S. Powell, Piper
Holly Simpson, 6284 Taylor Pike, Blanchester, Ohio 45107, for appellant
O P I N I O N
HENDRICKSON, P.J.
{¶ 1} Appellant, S.K.H., appeals from a judgment of the Clinton County Court of Common Pleas, Juvenile Division, adjudicating her a delinquent child for committing acts, which if committed by an adult, would constitute assault.
{¶ 2} S.K.H. attended school with A.N. On April 10, 2012, after class ended, S.K.H. waited for A.N. outside the classroom. When A.N. exited the classroom, S.K.H. struck A.N.
{¶ 3} As a result of this incident, the State of Ohio filed a complaint alleging S.K.H. was a delinquent child for an offense that would constitute an assault if committed by an adult, pursuant to
{¶ 4} A contested adjudicatory hearing was held on September 24, 2012. S.K.H., A.N., the investigating officer, Corey Pratt of the Wilmington Police Department, and S.K.H.‘s mother, Barbara Wilson, all testified at this hearing. After hearing the evidence, the magistrate adjudicated S.K.H. a delinquent child as alleged in the complaint. The magistrate, without objection, proceeded to disposition. S.K.H. was placed on probation, given 10 days of house arrest, ordered to undergo a mental health assessment and follow through with all treatment recommendations, complete the STAR program, and pay court costs. On September 25, 2012, the juvenile court adopted the magistrate‘s decision. S.K.H. filed this appeal on October 4, 2012, raising three assignments of error for our review.
{¶ 5} As an initial matter, we note S.K.H. did not file any objections to the magistrate‘s decision. S.K.H.‘s failure to object limits the scope of our review.
{¶ 6} Juvenile proceedings are civil, rather than criminal, in nature. In re Anderson (2001), 92 Ohio St.3d 63, 65 (2001); In re Johnson at *2. The Ohio Supreme Court defined plain error in the civil context as an error that “seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus. Because the plain error doctrine originated as a criminal law concept,
in applying the doctrine of plain error in a civil case, reviewing courts must proceed with the utmost caution, limiting the doctrine strictly to those extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect on the character of, and public confidence in, judicial proceedings.
In re B.J., 12th Dist. No. CA2011-10-192, 2012-Ohio-3127, ¶ 9, quoting Goldfuss at 121.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED IN ALLOWING INADMISSIBLE HEARSAY TO ESTABLISH AN ESSENTIAL ELEMENT OF THE OFFENSE OF ASSAULT.
{¶ 9} In her first assignment of error, appellant contends the juvenile court erred in allowing A.N. to testify as to her medical diagnosis as such evidence was inadmissible hearsay.
{¶ 10} At trial, the victim, A.N. testified that the day after the altercation with S.K.H., she went to the hospital and was told she “had a minor concussion.” In admitting this testimony, the court noted that it believed it was not being offered for the truth of the matter asserted. On appeal, appellant asserts it was improper for A.N. to testify as to the doctor‘s diagnosis because this statement was hearsay. Further, appellant argues that this was the only evidence presented by the state to establish the essential element of “physical harm.”
{¶ 11} After a review of the record, we find that any error in admitting A.N.‘s testimony as to her medical diagnosis would be harmless. S.K.H. was charged with assault, a misdemeanor in the first degree, a crime if committed by an adult, in violation of
{¶ 12} Moreover,
{¶ 13} For the foregoing reasons, appellant‘s first assignment of error is overruled.
{¶ 14} Assignment of Error No. 2:
{¶ 15} THE TRIAL COURT ERRED IN NOT ALLOWING APPELLANT TO TESTIFY
{¶ 16} In her second assignment of error, appellant maintains that it was error for the juvenile court to not allow her to testify as to her mental state at the time of the offense. On appeal, appellant asserts that such testimony was admissible pursuant to the hearsay exception found in
{¶ 17} Upon a review of the record, we find that S.K.H.‘s counsel attempted to elicit testimony regarding her mental state at the time of the incident as a means to establish a “diminished capacity” defense. In arguing for the admission of this testimony, counsel stated: “Your Honor, it goes to her mental state. The defense is offering in – a defense of diminished capacity as a factor to be considered in this delinquency determination and things that would bear on her sanity and her judgment-making ability would certainly be probative on the issues since this is a specific intent crime.” However, such testimony would have been inappropriate as the partial defense of diminished capacity is not recognized in Ohio. State v. Fulmer, 117 Ohio St.3d 319, 2008-Ohio-936, ¶ 66. It is well-settled that a defendant may not offer testimony in an effort to show that they lacked the mental capacity to form the specific mental state required for a particular crime. Id. at ¶ 67, citing State v. Cooey, 46 Ohio St.3d 20, 26 (1989).
{¶ 18} Moreover, contrary to S.K.H.‘s arguments, her testimony cannot be classified as hearsay. It therefore could not be admitted under the hearsay exception found in
{¶ 19} Assignment of Error No. 3:
{¶ 20} APPELLANT‘S COUNSEL WAS INEFFECTIVE THUS VIOLATING HER SIXTH AMENDMENT RIGHT TO COUNSEL AND HER SIXTH AMENDMENT RIGHT TO COMPULSORY PROCESS.
{¶ 21} In her third and final assignment of error, S.K.H. contends her trial counsel was ineffective and therefore violated her Sixth Amendment rights by failing to present the testimony of a material witness, T.N. According to appellant, a subpoena duces tecum was served upon the mother of T.N., however, neither T.N. nor her mother were present at the hearing. Appellant contends that trial counsel‘s failure to request a continuance to secure the presence of this witness and counsel‘s failure to proffer the anticipated testimony of T.N., amounted to ineffective assistance of counsel.
{¶ 22} Before reaching the merits of this assignment of error, we note that
{¶ 23} To resolve appellant‘s claim of ineffective assistance of counsel, we must apply the two-prong test of Strickland v. Washington, 466 U.S. 668, 687-688, 693, 104 S.Ct. 2052 (1984). In re Z.C. at ¶ 22. In order to prevail on an ineffective assistance of counsel claim, S.K.H. must show that counsel‘s performance fell below an objective standard of reasonableness and that she was prejudiced as a result. State v. Ward-Douglas, 12th Dist. No. CA2011-05-042 , ¶ 96, citing Strickland at 687-688, 693; State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, ¶ 6. In order to demonstrate prejudice, an appellant must establish that, but for counsel‘s errors, there is a reasonable probability that the result of trial would have been different; a “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Burke at ¶ 6. The failure to make an adequate showing on either prong is fatal to an ineffective assistance of counsel claim. State v. Zielinski, 12th Dist. No. CA2010-12-121, 2011-Ohio-6535, ¶ 50.
{¶ 24} Here, S.K.H has failed to point to any prejudice that she suffered as a result of her counsel‘s failure to call T.N. as a witness or failure to proffer T.N.‘s testimony. S.K.H.‘s mere conjecture that T.N.‘s testimony “may have corroborated [a]ppellant‘s version of events” is simply insufficient to establish by a reasonable probability that the result of the trial would have been different. Moreover, even if T.N. had corroborated S.K.H.‘s version of the incident, such testimony would not discount S.K.H.‘s admission that she had “hit” A.N. and puller her hair. Appellant has therefore failed to make an adequate showing of prejudice under the second prong of Strickland. Accordingly, appellant has failed to establish that she received ineffective assistance of counsel.
{¶ 25} Appellant‘s third and final assignment of error is overruled.
{¶ 26} Judgment affirmed.
S. POWELL and PIPER, JJ., concur.