Case Information
*1
[Cite as
In re T.S.
,
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. Earle E. Wise, Jr., P. J.
Hon. William B. Hoffman, J.
T.S. Hon. John W. Wise, J.
Case No. 21 CAF 08 0039 O P I N I O N CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Juvenile Division, Case No. 20-10-119-DL JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 24, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant MELISSA A. SCHIFFEL BRADLEY P. KOFFEL PROSECUTING ATTORNEY KOFFEL BRININGER NESBITT MEGAN A. HAMMOND 1801 Watermark Drive, Suite 350 ASSISTANT PROSECUTOR Columbus, Ohio 43215 145 North Union Street
3 rd Floor PAUL GIORGIANNI Delaware, Ohio 43015 GIORGIANNI LAW LLC
1538 Arlington Avenue Columbus, Ohio 43212 *2 Wise, John, J.
{¶1} Defendant-Appellant T.S. appeals the judgment entered by the Delaware County Court of Common Pleas, Juvеnile Division, on July 2, 2021. Plaintiff-Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.
FACTS AND PROCEDURAL HISTORY On October 21, 2020, a complaint was filed in the Court of Common Pleas of Delaware County, Juvenile Division, charging Appellant with one count of delinquency based upon felonious assault. On Marсh 15, 2021, the magistrate held an adjudicatory hearing. At the
hearing, Appellee submitted video surveillance of the incident in question. On July 31, 2020, Appellant and the victim were playing basketball at an
open gym supervised by Andy Gast and Josh Gast. The video showed Appellant, after making a basket, taking the basketball, searching for the victim and throwing the ball to him in a taunting manner. Testimony showed Appellant said, “and one bitch” to the victim. The victim, while standing several feet away from Appellant, threw the ball hard at Appellant’s head. Appellant then aggressively charged the victim in a manner to strike him.
The victim, apparently in an effort to defеnd himself from the charging Appellant, jabbed at Appellant’s face. Appellant then landed several punches on the victim, including one to the victim’s face which broke his jaw. The victim’s medical records and photos of his injuries were submitted into evidence. Appellant was not injured in the incident.
{¶7} On March 31, 2021, the magistrate filed its decision regarding the disposition.
{¶8} On April 2, 2021, Appellant filed an objection to the Magistrate’s Decision regarding adjudication.
{¶9} On May 17, 2021, Appellant filed another objection to the Magistrate’s Decision.
{¶10} On July 2, 2021, the juvenile court judge filed an entry adopting the March 18 Magistrate’s Decision regarding adjudication.
{¶11} On August, 11, 2021, the juvenile court judge filed an entry regarding disposition.
ASSIGNMENTS OF ERROR {¶12} On August 23, 2021, Appellant filed a notice of appeal raising the following eight Assignments of Error: “I. THE JUDGE ERRED IN FINDING THAT APPELLANT “WAITED FOR
THE BALL TO FALL THROUGH THE NET. “II. THE COURT ERRED IN FINDING THAT APPELLANT THREW THE
BALL AT J. “III. THE COURT ERRED IN FINDING THAT APPELLANT “‘SHOVED’ THE
BALL INTO [J.’S] CHEST.’ ” “IV. THE COURT ERRED IN FINDING THAT J. DID “THE SAME THING”
WITH THE BALL THAT APPELLANT DID TO HIM. “V. THE COURT ERRED IN FINDING THAT J. RAISED HIS ARMS ONLY
AFTER BEING HIT AND ONLY FOR THE PURPOSE OF DEFENSE. *4 “VI. THE COURT’S FINDING THAT APPELLANT DID NOT ACT IN SELF
DEFENSE IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. “VII. THE COURT ERRED IN FAILING TO ACKNOWLEDGE THE DEFENSE OF MUTUAL COMBAT. “VIII. ADJUDICATING APPELLANT DELINQUENT FOR FELONIOUS
ASSAULT WITHOUT ADJUDICATING J. DELINQUENT FOR FELONIOUS ASSAULT VIOLATES APPELLANT’S FEDERAL AND OHIO CONSTITUTIONAL GUARANTEES OF DUE PROCESS AND EQUAL PROTECTION.”
I., II., III., IV., V. In Appellant’s First, Second, Third, Fourth, and Fifth Assignments of Error, Appellant argues his conviction is against the manifest weight of the evidence. We disagree. In his first five assignments of error, Apрellant fails to cite any statute, case
law, rules of evidence, or learned treatise from this or any jurisdiction to support his argument. Accordingly, Appellant’s brief does not comply with App.R.16(A)(7), which provides,
The appellant shall include in its brief, under the headings and in the order indicated, all of the following * * * An аrgument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies. The argument may be preceded by a summary. *5 “If an argument exists that can support [an] assignment of error, it is not this
court’s duty to root it out.”
Thomas v. Harmon
, 4 th Dist. Lawrence No. 08CA17, 2009-
Ohio-3299, ¶14, quoting
State v. Carman
, 8 th Dist. Cuyahoga No. 90512, 2008-Ohio-
4368, ¶31. “It is not the function of this court to construct a foundation for [an appellant’s]
claims; failure to comply with the rules governing practice in the appellate courts is a
tactic which is ordinarily fatal.”
Catanzarite v. Boswell
, 9 th Dist. Summit No. 24184, 2009-
Ohio-1211, ¶16, quoting
Kremer v. Cox
,
an assignment of error because of “the lack of briefing” on the assignment of error.
Hawley v. Ritley
,
a juvenile delinquency case that it applies in an adult criminal appeal.
See In re E.A.
Dist. Summit No. 28106,
Appellant delinquent because the evidence does not show that Appellant waited for the ball to drop through the net, that Appellant threw the ball at the victim, that Appellant shoved the ball into victim’s chest, that victim did the same thing with the ball that Appellant did, and that the victim raised his arms only after being hit. Appellant was judged delinquent for violating R.C. 2903.11(A), Felonious
Assault. R.C. 2903.11(A), in pertinent part, states:
(A) No person shall knowingly do either of the following: (1) Cause serious physical harm to another or to another’s unborn[.] *7 In the case sub judice , testimony and the surveillance video show Appellant taking the ball from the basket, transferring it in an aggressive and taunting manner toward the victim, charging the victim, striking the victim in the face, and braking the victim’s jaw. Even if, assuming arguendo , Appellant’s argument has merit, that the listed
facts were not supported by evidence, the record otherwise demonstrates the existence of substantial, probative evidence in the surveillance video to support the magistrate’s decision and trial court’s adjudication. Appellant’s First, Second, Third, Fourth, and Fifth Assignments of Error are
overruled.
VI. In Appellant’s Sixth Assignment of Error, Appellant alleges the trial court’s finding that Appellant did not act in self-defense is against the manifest weight of the evidence. We disagree. Again, an appellate court applies the same manifest weight standard of
review in a juvenile delinquency case that it applies in an adult criminal appeal.
See In
re E.A.
Dist. Summit No. 28106,
defense by a preponderance of the evidence. Effective March 28, 2019, Ohio’s self- defense law was changed to require the prosecution to establish the defendant did not act in self-defense where the defense could reasonably be found to apply. R.C. 2901.05(A), as amended states, in relevant part:
Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense other than self-defense * * * as described in (B)(1) of this section, is upon the accused. R.C. 2901.05(B)(1) further states: A person is allowed to act in self-dеfense, defense of another, or defense of that person’s residence. If, at the trial of a person who is accused of an offense that involved the person’s use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense, defense of another, or defense of that person’s residence, as the case may be. Since evidence was presented at trial in support that Appellant used non-
deadly force in self-defense, the State must now prove beyond a reasonable doubt that
the defendant did not use that force in self-defense.
State v. Jacinto
Dist. No. 108944,
*9
creating the situation giving rise to the affray, that Appellant did not have reasonable grounds to believe or an honest belief that he or she was in imminent danger of bodily harm, and that Appellant used more force than was reasonably necessary to defend against the imminent danger of bodily harm wаs against the manifest weight of the evidenc. “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.”
State v. DeHass
, 10 Ohio St.2d 230 (1967),
paragraph one of the syllabus;
Prince v. Jordan
, 9 th Dist. Lorain No. 04CA008423, 2004-
Ohio-7184, ¶15. The trier of facts is “free to believe all, part, or none of the testimony of
each witness.”
Id
. “This Court will not overturn the trial court’s verdict on a manifеst
weight of the evidence challenge only because the trier of fact chose to believe certain
witness testimony over the testimony of others.”
State v. Pittman
Dist. Summit No.
*10
29705,
showing Appellant taunting the victim and throwing the ball at him. Then, the victim throws the ball back at Appellant aggressively from several feet away. The victim makes no further move toward Appellant. The Appellant then charges the victim attacking him. The victim jabbed his hand out in an effort to stop the charging Appellant. Appellant then struck the victim several times, breaking the victim’s jaw. Upon review of the entire record, weighing the evidence and all reasonable
inferences as a thirteenth juror, including considering the credibility of witnesses, we cannot reach the conclusion that the trier of facts lost its way and creаted a manifest miscarriage of justice. Although Appellee only had to prove beyond a reasonable doubt one of the following, we do not find the trial court erred when it found Appellant was at fault for creating the situation giving rise to the affray, that Appellant did not have a reasonable belief he was in imminent danger of bodily harm, and that Appellant used more force than was reasonably necessary to defend against imminent danger of bodily harm against the manifest weight of the evidence. Appellant’s Sixth Assignment of Error is overruled.
VII. In Appellant’s Seventh Assignment of Error, Appellant argues the trial court
erred in applying the defense of mutual combat. We disagree. In putting forth his argument, Appellant cites Champer v. State , 14 Ohio St.
437 (1863). In its entirety, the Supreme Court of Ohio’s per curiam opinion states:
Held, an indictment against A. for assault and battery upon B., is not sustained by evidence that A. assaulted and beat B. in a fight at fisticuffs, by agreement between them.
An assault and battery and an affray are distinct offenses under the statutе, punishable by different penalties. Appellant contends this holding establishes mutual combat as a defense to
assault and battery. It does not. The Supreme Court merely makes a finding that in
Champer
, the State indicted A. under the wrong statute.
Id
. Since 1863, the State of Ohio
has codified the criminal code into statute. Appellant failed to cite to any current statute
in the State of Ohio listing “affray” as a crime. In
Davis v. State
,
(A) No person shall knowingly do either of the following: (1) Cause serious physical harm to аnother or to another’s unborn[.] In the case sub judice , the State provided testimony and a surveillance video showing Appellant taking the ball from the basket, transferring it in an aggressive *12 and taunting manner toward the victim, charging the victim, striking the victim in the face, and breaking the victim’s jaw, meeting the elements of Felonious Assault. Moreоver, this Court is unable to locate any evidence that mutual combat
as a defense exists in the State of Ohio. The Eighth District Court of Appeals also has
not recognized mutual combat as a defense in the State of Ohio.
State v. Lynch
, 8 th Dist.
Cuyahoga No. 95770,
never successfully established, only that defendants have tried and failed to argue it in
the past.
State v. Garner
, 5 th Dist. Stark No. 96CA0027,
First District Court of Appeals and the Tenth District Court of Aрpeals recognize that
“where two persons agree to fight each other in a non-competitive boxing situation, each
may be held guilty of * * * felonious assault * * * where the harm visited upon one of the
fighters constitutes serious physical harm.”
State v. McCurdy
, 10 Dist. Franklin No.
13AP-321,
VIII.
In Appellant’s Eighth Assignment of Error, Appellant argues adjudicating
Appellant delinquent for felonious assault without adjudicating the victim delinquent as
well violates Appellant’s federal and Ohio constitutional guarantees of due process and
equal protection. We disagree.
In support, Appellаnt cites
In re D.B.
,
was charged with R.C. 2907.02(A)(1)(b). In pertinent part, it states, “[n]o person shall engage in sexual conduct with another * * * when the other person is less than thirteen years of age.” R.C. 2907.02(A)(1)(b). This is a strict liability standard, where, as in the case of D.B. and M.G., it is impossible to discern which is the offender and which is the victim. The felonious assault statute, R.C. 2903.11(A)(1), requires a knowing standard which differentiates between victim and offender. In addition, a plain reading of the statute allows Appellant to be charged,
but not victim. R.C. 2903.11(A)(1) provides that an offender is guilty of felonious assault if he or she knowingly сauses serious physical harm, or attempts to knowingly cause serious physical harm with a deadly weapon. As applied Appellant committed felonious *14 assault by knowingly causing serious bodily harm to the victim by breaking the victim’s jaw with a punch. The victim did not knowingly cause serious bodily harm to Appellant, nor did he attempt to with a deadly weapon. Therefore, the victim did not commit felonious assault. Therefore, the trial court did not err in adjudicating Appellant delinquent for
Felonious Assault without also adjudicating the victim delinquent as well. Appellant’s Eighth Assignment of Error is overruled. For the foregoing reasons, the judgment of the Juvenile Division of the Court of Common Pleas of Delaware County, Ohio, is hereby affirmed.
By: Wise, John, J.
Wise, Earle, P. J., and
Hoffman, J., concur.
JWW/br 0322