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In Re: S.W.

October 14, 2011

IN RE: S.W.


T.C. CASE NO. 10JC1032 : (Criminal Appeal from Juvenile Court)

The opinion of the court was delivered by: Grady, P.J.:

Cite as In re S.W.,

OPINION

{¶1} S.W., a minor child, appeals from her delinquency adjudication and disposition for having committed the offense of disorderly conduct - persist after warning to desist.

{¶2} The evidence presented at the adjudicatory hearing demonstrates that on February 5, 2010, after running errands, S.W.'s legal guardian, Brittany High, and High's live-in fiance, Renato Robinson, returned home between 7:00-8:00 p.m. They discovered that S.W. had invited her boyfriend, D.J., to the house without first getting their permission, which was an on-going family issue. Robinson told D.J. that he could not spend the night and to call his mother and father and have them take him home. That resulted in a verbal altercation between S.W. and High and Robinson that escalated. S.W. and High both became angry and upset.

{¶3} During their argument, High threw a bottle of hydrogen peroxide at S.W., and after that went upstairs. S.W. went to the kitchen and removed a large knife from a kitchen drawer. While holding the knife in her hand, S.W. threatened to cut High's face.

S.W. also continued to yell at High and Robinson, who had also gone upstairs. S.W.'s conduct was witnessed by High's daughter,

T.D., who was frightened that S.W. might harm her or her mother.

T.D. told S.W. to put the knife away. Robinson heard T.D. yelling at S.W., and came downstairs to see what was going on. S.W. was in the kitchen holding the knife down by her side, and she continued to argue with Robinson when he told her to put the knife away.

{¶4} Eventually, S.W. put the knife away, after High had come downstairs and saw S.W. with it, but S.W. continued to yell and argue with Robinson because he had told D.J. to go home. High came downstairs enraged because S.W. was still yelling and arguing about D.J. not being allowed to stay. Robinson stood in the kitchen doorway between High and S.W.

{¶5} High threw some shoes at S.W., and High physically struggled with Robinson in an attempt to get at S.W. High got past Robinson and into the kitchen, where she physically attacked S.W., who defended herself. High and S.W. assaulted each other, and during their fight High received scratches on her neck and chest. High fell backwards when she tripped over one of the shoes she earlier threw at S.W. Robinson became upset when High fell, and told T.D. to call the police, which she did. When Robinson threatened to hit S.W., D.J. became involved and threatened Robinson.

{¶6} When police arrived everyone was in the kitchen, yelling at each other. Police observed the scratch marks on High's neck.

S.W. was eventually arrested for domestic violence.

{¶7} On February 5, 2010, a complaint was filed in juvenile court charging S.W. with being a delinquent child by reason of having committed domestic violence in violation of R.C. 2919.25(A), a misdemeanor of the first degree. An adjudicatory hearing was held on April 9 and 12, 2010. At the conclusion of that hearing, the magistrate found S.W. not responsible for the domestic violence offense charged in the complaint. The magistrate amended the complaint to charge two other offenses, and found S.W. delinquent by reason of having committed those other offenses: domestic violence in violation of R.C. 2919.25(C), a misdemeanor of the fourth degree, and disorderly conduct - persist after warning to desist, in violation of R.C. 2917.11(A)(1), (E)(3)(a), also a misdemeanor of the fourth degree. The magistrate immediately proceeded to disposition and ordered S.W. to complete six months of probation and participate in various counseling programs for anger management and parent-teen conflict.

{¶8} S.W. timely filed objections to the magistrate's decision. The State filed its response. On February 3, 2011, the Juvenile Court filed its Decision and Judgment, overruling in part and sustaining in part S.W.'s objections to the magistrate's decision. The Juvenile Court agreed that the evidence presented was legally insufficient to sustain a conviction for domestic violence in violation of R.C. 2919.25(C), because the victim, Brittney High, did not see S.W. with the knife and did not believe that S.W. would cause her imminent physical harm. Accordingly, the Juvenile Court dismissed the domestic violence charge in violation of R.C. 2919.25(C). The juvenile court further found that the evidence presented was sufficient to find that S.W. was responsible for committing the offense of disorderly conduct - persist after warning to desist in violation of R.C. 2917.11(A)(1), (E)(3)(a), and that the offense is a lesser included offense of domestic violence under R.C. 2919.25(A) as originally charged in the complaint. The court adjudicated S.W. a delinquent child based on that finding. Finally, the juvenile court ruled that, pursuant to Juv.R. 32, S.W. was not entitled to see, prior to the adjudicatory hearing, a social history or the Disposition Investigation Report (DIR) prepared in this case.

{¶9} S.W. timely appealed to this court from the Juvenile Court's Decision and Judgment overruling in part her objections to the magistrate's decision.

FIRST ASSIGNMENT OF ERROR

{¶10} "THE JUVENILE COURT ABUSED ITS DISCRETION BY FINDING (S.W.) RESPONSIBLE FOR DISORDERLY CONDUCT - PERSIST AFTER WARNING TO DESIST BECAUSE THE JUVENILE COURT INCORRECTLY HELD THAT PERSISTENT DISORDERLY CONDUCT WAS A LESSER INCLUDED OFFENSE OF DOMESTIC VIOLENCE."

{¶11} A criminal defendant may be found guilty not only of the offense(s) charged in the complaint of indictment, but also lesser included offenses as well, even though the lesser included offense was not separately charged. R.C. 2945.74; State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, at ¶8; State v. Smith, 121 Ohio St.3d 409, 2009-Ohio-787, at ¶14.

{¶12} Juv.R. 22(B) provides, in part:

{ΒΆ13} "Amendment of pleadings. Any pleading may be amended at any time prior to the adjudicatory hearing. After the commencement of the adjudicatory hearing, a pleading may be amended upon agreement of the parties or, if the interests of justice require, upon order of the court. A complaint charging an act of delinquency may not be amended unless agreed by the parties, if the proposed amendment would change the name or identity of the ...


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