State of Ohio v. Sherry Howard
Court of Appeals No. F-17-003
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT FULTON COUNTY
October 6, 2017
2017-Ohio-8119
Trial Court No. 2143059
Gary L. Smith, for appellant.
DECISION AND JUDGMENT
JENSEN, P.J.
{¶ 1} Defendant-appellant, Sherry Howard, appeals the June 16, 2017 judgment of the Fulton County Court of Common Pleas, Juvenile Division, sentencing her for a conviction of contributing to the delinquency of a child. For the following reasons, we affirm.
{¶ 2} On November 17, 2016, the Delta police filed a complaint against Howard in the Fulton County Court of Common Pleas, Juvenile Division, alleging that she violated former
{¶ 3} Howard raises two assignments of error:
I. The Trial Court Erred When Finding Defendant/Appellant Guilty of a Violation of
O.R.C. Section 2919.24(A)(1) Based Upon Evidence Which, if Believed, Was Legally Insufficient to Support a Conviction[.]II. The Trial Court‘s Verdict of Guilty Was Against the Manifest Weight of the Evidence[.]
II. Facts
{¶ 4} The complaint against Howard arose from two events in October 2016: a shopping trip and a high school dance.
{¶ 5} On October 15, 2016, Pike-Delta-York High School held its homecoming dance. A.M.C., the minor daughter of Howard‘s cousin, Angela Miller, and J.W., Howard‘s minor daughter, attended the dance. They drove together in A.M.C.‘s car.
{¶ 6} Officer Drew Walker of the Delta Police Department was patrolling the high school parking lot during the dance. While patrolling, Officer Walker saw a white Impala with the backseat partially folded down, allowing him to see into its trunk. Two bottles of liquor were plainly visible through the opening in the back seat. He traced the car to A.M.C., who agreed to open the car for him. Officer Walker found four bottles of liquor, four wine coolers, drugs, and drug paraphernalia during his search. While Officer Walker investigated the situation, school officials found J.W. and brought her to the car because she and A.M.C. came to the dance together.
{¶ 7} Officer Walker eventually had the girls contact their parents to pick them up. Miller testified that Howard called her after learning that the girls were in trouble and asked Miller to take the blame for the alcohol. Howard, on the other hand, testified that Miller was screaming and cursing on the phone while Howard told Miller that the bottles belonged to Howard and Howard did not understand why there was a problem. She explained that she thought that Miller—not A.M.C.—drove to the dance and thought that the bottles were left in Miller‘s trunk by mistake. Howard later realized that the bottles were found in A.M.C.‘s car.
B. The Shopping Trip
{¶ 9} Prior to the homecoming dance, on October 13, 2016, Howard, Miller, A.M.C., and J.W. went shopping. During the trip, Howard purchased the liquor that Officer Walker found in A.M.C.‘s trunk. Howard, Miller, A.M.C., and J.W. each provide a different version of the evening‘s events, but they all agree on several pertinent details. First, they agree that Howard purchased the bottles of liquor at the Rite-Aid store in Wauseon on October 13, 2016. Second, they agree that Miller drove all of them to Rite-Aid and Wal-Mart that night in her car. Third, they agree that the bottles of liquor were removed from Miller‘s car and placed in Howard‘s garage before Miller left Howard‘s home after the shopping trip. And finally, they agree that a post-homecoming party for high school students at Howard‘s house did not happen. Why Howard purchased the alcohol and how the bottles of liquor ended up in A.M.C.‘s trunk are disputed.
{¶ 10} Miller was the first to testify to her version of the story. According to her, the purpose of the trip to Rite-Aid was “to get alcohol for the girls” for a post-homecoming party that Howard planned to hold at her house. Miller claimed that the girls were talking about the party and were excited to be shopping for supplies. Howard never told Miller that she was purchasing alcohol for the post-homecoming party. Although Miller was at Rite-Aid, she was not in the liquor section for the majority of the time that Howard and the girls were shopping.
{¶ 12} Next, A.M.C. testified to her version of events. She claimed that the alcohol was purchased for “after homecoming” when she and J.W. planned to “party” at Howard‘s house, during which they would drink the liquor. Although she and J.W. planned the party, A.M.C. claimed that Howard and Miller both knew about it. A.M.C. testified that she and J.W. were involved in choosing the alcohol Howard bought, and she recalled J.W. giving Howard money to purchase the alcohol. A.M.C. testified that she and J.W. took the alcohol from Howard‘s garage the night it was purchased and put it in A.M.C.‘s trunk, where it stayed until Officer Walker found it on October 15. She did not believe that Howard knew that the girls planned to steal the alcohol.
{¶ 13} The third version of events came from J.W. She denied that her mother planned a post-homecoming party and denied that Howard purchased the liquor for such a party. J.W. testified that she was at Rite-Aid on October 13 and that Howard purchased alcohol there, but denied that she and A.M.C. were involved in choosing the liquor.
{¶ 14} Finally, Howard testified to her own version of events. She claimed that the trip to Rite-Aid and Wal-Mart was for the purpose of purchasing food and alcohol for social events. She said that the girls had invited friends to come to her house after the homecoming dance on October 15 and she had invited other adults to her house to watch a football game the same evening. Howard admitted to buying liquor at Rite-Aid, claiming that is was for a Halloween party later in the month. She also admitted that the girls were with her in the liquor section, but claimed that she told them not to touch the liquor and smacked one girl‘s hand when she tried to touch a bottle.
{¶ 15} Howard explained that the money J.W. gave her came from J.W.‘s father. She claimed that it was meant for the purchase of hair extensions for J.W. to wear to the homecoming dance and that she asked J.W. for the money so that J.W. did not spend it while they were at Wal-Mart. Howard further testified that she purchased party food, beer, and wine coolers at Wal-Mart. Contrary to her testimony that the liquor was for a different party, Howard said that she purchased the beer for Miller to drink during the football game because Miller does not drink liquor.
{¶ 17} In addition to its witnesses, the state presented Rite-Aid surveillance video from the evening of October 13. The video shows Howard, J.W., and A.M.C. walking into the liquor section and shopping for approximately six minutes. During that time, J.W. and A.M.C. are seen browsing the shelves, pointing to bottles, and talking with Howard. Howard holds up one of the bottles to show the girls and then has several seconds of discussion with them before putting the bottle in the cart. Though the camera view of the group is blocked by shelves for brief periods, the girls do not appear to be touching or attempting to touch any alcohol, nor does the video show Howard smacking either girl‘s hand.
{¶ 18} As the group is leaving the liquor section, the video shows Howard saying something to J.W., who stops and pulls money out of her pocket. She hands some bills to Howard and, after several seconds of Howard speaking to her, hands Howard another bill before putting the money remaining in her hand back in her pocket. At the register, Howard removes her wallet from her purse, shows the cashier her ID, puts her wallet back in her purse, and pulls cash from her pocket to pay for the liquor. Afterward, she puts her change back in her purse. Howard and Miller each take a bag holding the bottles and the group leaves the store.
A. Sufficiency of the Evidence
{¶ 19} Howard first objects to the sufficiency of the evidence supporting her conviction. She argues that a conviction under
{¶ 20} In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the prosecution and determine whether “any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” (Internal quotations omitted.) State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In making that determination, the appellate court will not weigh the evidence or assess the credibility of the witnesses. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 132. Whether there is sufficient evidence to support a conviction is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 21} Under former
{¶ 22} Proof beyond a reasonable doubt of a child‘s delinquency is essential to a conviction under
{¶ 23} The delinquent act in this case is underage possession of alcohol.
{¶ 24} Regarding her role in J.W.‘s and A.M.C.‘s delinquency, Howard correctly argues that there must be some link between her conduct and a child‘s subsequent delinquency. But we disagree with her conclusion that the state failed to make that connection. The state presented evidence that: Howard planned a party for J.W. and A.M.C. where the girls would be allowed to drink alcohol; J.W. and A.M.C. chose the alcohol Howard purchased; J.W. gave her mother some—but not all—of the money that J.W. received from her father; Howard left the liquor bottles in the garage; and the girls stole the liquor while under Howard‘s supervision. Howard and J.W. testified that Howard never planned a party and that the girls had no part in picking out the liquor, but the trial court found Miller‘s and A.M.C.‘s testimony that Howard planned the party and
{¶ 25} Howard seems to argue that the girls’ act of stealing the liquor from the garage relieves her of culpability for helping the girls to obtain the liquor found in A.M.C.‘s trunk, thus making her actions—at worst—a violation of former
{¶ 26} We further disagree with Howard‘s argument that upholding her conviction will lead to an “abomination of justice” by creating “foreseeable criminal liability.” Howard misinterprets the trial court‘s decision. The court found that Howard was directly involved in J.W. and A.M.C. becoming delinquent children by possessing alcohol because Howard planned a party in her home where the girls would be allowed to drink (even though the party and drinking never happened), allowed the girls to choose the types of liquor they wanted, and purchased the liquor for the girls’ party. The trial court found particularly damning Miller‘s testimony that all four participants went to Rite-Aid to “get alcohol for the girls” and that Howard asked Miller to take the blame for the girls having the alcohol. This is not a finding of guilt based on some projected future occurrence of delinquency (i.e., the girls actually consuming alcohol in Howard‘s house), but a finding based on Howard‘s actions two days before the girls were caught possessing alcohol. If the facts of this case were different—if, for example, the girls simply stole liquor kept in Howard‘s home, without evidence that Howard planned a party and that the girls were involved in the liquor selection—we would be hard pressed to find that Howard violated
{¶ 27} Therefore, viewing the evidence in the light most favorable to the state, we find that Howard‘s conviction is supported by sufficient evidence. Accordingly, Howard‘s first assignment of error is not well-taken.
B. Manifest Weight of the Evidence
{¶ 28} In her second assignment of error, Howard contends that her convictions are against the manifest weight of the evidence. She disputes the witnesses’ credibility, claiming that the trial judge was biased against her, leading the court to “adopt facts premised upon the source of the testimony rather than its evidentiary value.” She also contends that she did not violate
{¶ 29} When reviewing a claim that a verdict is against the manifest weight of the evidence, the appellate court must weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether the trier of fact clearly lost its way in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. We do not view the evidence in a light most favorable to the state. Instead, we scrutinize the factfinder‘s resolution of the conflicting testimony.
{¶ 30} Howard‘s main argument is that her conviction is against the manifest weight of the evidence because the trial court wrongly assessed the witnesses’ credibility. Even though we consider credibility in a manifest weight analysis, we give special deference to the trial court because the trial court saw the testimony firsthand. Fell at ¶ 14. Although Miller and A.M.C. presented versions of the events that conflicted in some ways with the versions presented by Howard and J.W., we cannot find that the trial court lost its way in believing Miller and A.M.C. Howard contends that the trial court should have resolved the conflicting stories in her favor. But conflicting evidence,
{¶ 31} Howard complains in her brief that Miller committed the same crime as Howard, but was not prosecuted. This argument has no bearing on Howard‘s conviction, however, because the state—not the trial court—chooses who to prosecute. Insofar as Howard is arguing that the trial court improperly considered the state‘s charging decisions in assessing Howard‘s and Miller‘s characters, we find that this argument is not supported by the record.
{¶ 32} In addition to disputing the trial court‘s credibility determinations, Howard contends that her conviction is against the manifest weight of the evidence because there is no evidence that J.W. and A.M.C. are delinquent children. She claims that neither J.W. nor A.M.C. engaged in any illegal activity by choosing liquor at Rite-Aid because both girls were accompanied by their mothers, which takes their behavior at the store outside of the scope of
{¶ 33} As discussed above, the state need not present evidence of a formal delinquency adjudication to prove a violation of
{¶ 34} Considering the testimony and evidence, giving special deference to the trial court‘s determinations of credibility, we cannot find that the court lost its way and created a manifest miscarriage of justice by convicting Howard. This is not an exceptional case in which the evidence weighs heavily against the conviction. For these reasons, Howard‘s second assignment of error is not well-taken.
IV. Conclusion
{¶ 35} The June 16, 2017 judgment of the Fulton County Court of Common Pleas, Juvenile Division, is affirmed. Howard is ordered to pay the 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.
Arlene Singer, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
James D. Jensen, P.J.
CONCUR.
JUDGE