State v. VertreesState v. Vertrees
Howard A. Elliot for Appellant
Heather M. Pendleton for Appellee
{1} Defendant-appellant, Hannah R. Vertrees (“Vertrees“), appeals the August 19, 2020 judgment entry of sentence of the Hancock County Court of Common Pleas, Juvenile Division. For the reasons that follow, we affirm.
{2} On March 2, 2020, Vertrees was charged by complaint with one count of contributing to unruliness or delinquency in violation of
{3} The case proceeded to a bench trial on June 16, 2020. (Doc. No. 12); (June 16, 2020 Tr. at 5). During trial, Vertrees orally moved to dismiss the complaint, arguing that she could not be prosecuted under
{4} On August 19, 2020, the trial court sentenced Vertrees to six months in jail and ordered her to pay a fine. (Doc. No. 13). Further, the trial court suspended
{5} Vertrees filed her notice of appeal on September 17, 2020 and raises two assignments of error for our review. (Doc. No. 15).
Assignment of Error No. I
Where a complaint sets forth an offense, utilizing a code section which does not specify an offense, a conviction based upon the complaint when a court did not file an amendment to the complaint was improper and void and must be set aside.
{6} In her first assignment of error, Vertrees argues that the trial court erred by denying her motion to dismiss the complaint. Specifically, Vertrees argues the trial court erred by amending the numerical designation of the applicable statute after trial.
Standard of Review
{7} An appellate court reviews de novo a trial court‘s denial of a motion to dismiss a complaint. See State v. Robertson, 3d Dist. Henry No. 7-14-16, 2015-Ohio-1758, ¶ 17; State v. Fields, 2d Dist. Greene No. 2016-CA-5, 2017-Ohio-400, ¶ 19. “De novo review is independent, without deference to the lower court‘s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27.
Analysis
{8} “‘The purpose of an indictment [or complaint] is to give the accused adequate notice of the crime charged.‘” Fields at ¶ 17, quoting State v. Cassel, 2d Dist. Montgomery No. 26708, 2016-Ohio-3479, ¶ 19. Importantly, “[a] complaint must contain ‘a written statement of the essential facts constituting the offense charged,’ and ‘the numerical designation of the applicable statute or ordinance.‘” Id., quoting
{9} In this case, Vertrees argues that the trial court erred by denying her motion to dismiss the complaint because it contained an incorrect numerical designation of the applicable statute. Specifically, Vertrees contends that the “[t]he complaint used to charge her specified that she had violated Ohio Revised Code §2919.24(A)(2)” but that “even cursory examination of the statute reveals that the subsections [sic] (A)(2), is a definitional section and does not set forth the element in any offense.” (Appellant‘s Brief at 8). Instead, Vertrees argues that the correct numerical designation of the applicable statute is
{10} However,
{12} Under
{13} It was not plain error for the trial court to amend the complaint to reflect the correct numerical designation of the applicable statute because Vertrees was not prejudiced by the amendment. See State v. Phillips, 10th Dist. Franklin No. 99AP-641, 2000 WL 350509, *2 (Apr. 6, 2000). Importantly, the amendment did not change the name or the identity of the crime charged. Indeed, the charging language utilized in the complaint provided Vertrees adequate notice of what the State intended to prove at trial—that is, Vertrees was not prejudiced in preparing for her defense. See State v. Smoot, 6th Dist. Wood No. WD-19-034, 2020-Ohio-838, ¶ 49, citing State v. Brown, 12th Dist. Preble No. CA2003-02-004, 2004-Ohio-424, ¶ 43. Specifically, the charging language utilized in the complaint provides, in its relevant part, that “Vertrees * * * did act in a way tending to cause a child * * * to become an unruly child * * * or delinquent child * * * .” (Doc. No. 1). That
{14} Vertrees‘s first assignment of error is overruled.
Assignment of Error No. II
In order to sustain a conviction for a parent contributing to the delinquency of their child, arising out of the child‘s truant behavior there must be a finding of some act of the Defendant-Appellant which cause [sic] such truant behavior and without such a finding the conviction cannot stand as it is both based upon the insufficiency of the evidence and the manifest weight of the evidence.
{15} In her second assignment of error, Vertrees argues that her contributing-to-unruliness-or-delinquency conviction is based on insufficient evidence and is against the manifest weight of the evidence. In particular, Vertrees contends that her contributing-to-unruliness-or-delinquency conviction is based on insufficient evidence because the State presented insufficient evidence that she acted in such a way to cause J.S.‘s failure to attend school without an excuse. Likewise, Vertrees contends that the trier of fact lost its way in concluding that she acted in such a way as to cause J.S.‘s failure to attend school.
Standard of Review
{16} Manifest “weight of the evidence and sufficiency of the evidence are clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). Therefore, we address each legal concept individually.
{18} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, “weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier
Sufficiency of the Evidence Analysis
{19} Vertrees was convicted of contributing to unruliness or delinquency under
A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person‘s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.
{21} On appeal, Vertrees argues only that there is insufficient evidence that she acted in such a way as to cause J.S. to become an unruly child. Because it is the only element that Vertrees challenges on appeal, we will review the sufficiency of the evidence supporting only as to whether she acted in such a way as to cause J.S. to become an unruly child.
{22} We conclude that the State presented sufficient evidence that Vertrees acted in such a way as to cause J.S. to become an unruly child. That is, the State presented sufficient evidence that Vertrees acted recklessly as to J.S.‘s school attendance. Ben Gerken (“Gerken“), principal of Liberty Benton High School, testified that a pre-court conference is conducted for students with excessive
{23} According to Gerken, if a student‘s attendance does not improve following the pre-court conference, he conducts a school conference. (Id. at 30). Gerken testified that, because J.S.‘s attendance issues continued after the commencement of the 2019-2020 school year, he conducted a school conference on December 10, 2019 during which he discussed J.S.‘s school attendance with Vertrees by phone. (Id. at 33). (See also State‘s Ex. 3). Likewise, Lori Betsscher (“Betsscher“), a truancy officer with the Hancock County Educational Service Center, testified that she sent a letter to Vertrees on November 19, 2019 advising her that J.S. “had 67 unexcused absence[]” hours from school. (June 16, 2020 Tr. at 9, 12-13). (See also State‘s Ex. 2).
{24} Gerken testified that the school‘s attendance policy requires the school to call a student‘s home “by 9:00 a.m. every day any time a student isn‘t in school.” (June 16, 2020 Tr. at 35). He further testified that the “school attendance officer, [the] secretary, call[ed] everyday [and that he] made a home visit to see why [J.S.] wasn‘t in school.” (Id. at 34). He testified that he conducted a home visit “because
{25} Moreover, Betsscher testified that Vertrees failed to cooperate with the school by failing to call the school to report J.S.‘s absence or to return the school‘s phone calls on “23 days” [sic]—13 days “that the school had called the parent * * * and the number of no-call days altogether were [sic] 11 days * * * .” (June 16, 2020 Tr. at 18). (See also State‘s Ex. 1).
{26} Based on this evidence, a rational trier of fact could have found beyond a reasonable doubt that Vertrees acted with a heedless indifference to the consequences—that is, that Vertrees disregarded a substantial and unjustifiable risk that she was acting in such a way that was causing J.S. to become an unruly child. Specifically, the State presented evidence that Vertrees was aware of her responsibilities for reporting J.S.‘s absence from school and that she disregarded those responsibilities which caused J.S. to be habitually truant from school. Compare State v. Stiles, 5th Dist. Licking No. 18CA0099, 2019-Ohio-3852, ¶ 36 (“We find the record is contrary to appellant‘s assertion that she ‘was in significant contact’ with the school regarding the absences.“); Lewis, 2017-Ohio-9311, at ¶ 21-22 (concluding that “the trial court reasonably could have found that she acted
{27} Having concluded that Vertrees‘s contributing-to-unruliness-or-delinquency conviction is based on sufficient evidence, we next address Vertrees‘s arguments that her contributing-to-unruliness-or-delinquency conviction is against the manifest weight of the evidence. Velez, 2014-Ohio-1788, at ¶ 76.
Manifest Weight of the Evidence
{28} Although Vertrees contends that her contributing-to-unruliness-or-delinquency conviction is against the manifest weight of the evidence, her argument pertains to the sufficiency of the evidence supporting that conviction. See State v. Frye, 3d Dist. Allen No. 1-17-30, 2018-Ohio-894, ¶ 44 (“Although Frye asserts that he is challenging the weight of the evidence supporting his convictions * * *, his argument pertains only to the sufficiency of the evidence supporting those convictions.“). Indeed, the entirety of her argument that her contributing-to-unruliness-or-delinquency conviction is against the manifest weight of the evidence is whether “the evidence herein supports the conclusion that [Vertrees] acted in such a way as to the cause of the child‘s nonattendance in school.” (Appellant‘s Brief at 11). (See also Appellant‘s Brief at 12). Because Vertrees presented only a
{29} For these reasons, Vertrees‘s second assignment of error is overruled.
{30} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
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