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In re E.B.

Court of Appeals of Ohio, Third District, Auglaize

April 30, 2018

IN RE: E.B., ADJUDICATED DELINQUENT CHILD

          Appeal from Auglaize County Common Pleas Court Juvenile Division Trial Court No. 2017 DEL 140

          Rob C. Wiesenmayer, II for Appellant

          Nicholas A. Catania and Andrew J. Hinders for Appellee

          OPINION

          SHAW, J.

         {¶1} Appellant, E.B., appeals the October 2, 2017 judgment of the Auglaize County Court of Common Pleas, Juvenile Division, committing her to the custody of a juvenile detention center for a period of 30 days, with 20 days suspended, and placing her on community control and intensive probation for an indefinite period of time up to age 21, following her adjudication as a delinquent child for her conduct comprising the offense of felonious assault, in violation of R.C. 2903.11(A)(1), a felony of the second degree, if committed by an adult. On appeal, E.B. argues that the Mercer County Juvenile Court's adjudication of her as a delinquent child was not supported by sufficient evidence and was against the manifest weight of the evidence. E.B. also claims that she received ineffective assistance from her trial counsel.

         Adjudication in Mercer County

         {¶2} On January 9, 2017, a complaint was filed in Mercer County Juvenile Court was filed alleging E.B. to be a delinquent child based upon allegations that she knowingly committed serious physical harm to the victim, L.M., also a minor, by striking L.M. in the head causing her to suffer from a concussion, lacerations, bruises and eye injuries. The complaint specified this allegation as Count One, Felonious Assault, in violation of R.C. 2903.11(A)(1), a felony of the second degree, if committed by an adult. The complaint also alleged under Count Two that E.B. did knowingly obtain or exert control over property of another, without the consent of the owner or person authorized to give consent, with the property having a value of less than a thousand dollars, constituting the offense of Theft, in violation of R.C. 2913.02(A), a misdemeanor of the first degree, if committed by an adult. The allegations in the complaint arose from an altercation between E.B. and L.M. in a Walmart parking lot in Celina, Ohio on December 2, 2016.

         {¶3} On January 23, 2017, E.B. appeared in court with her parents, where she was advised of her rights and the possible penalties and a denial was entered on her behalf.

         {¶4} On April 18, 2017, E.B. filed a motion requesting the Mercer County Juvenile Court to determine the admissibility of cell phone video, which purportedly depicted the incident between E.B. and L.M. and was being proffered as evidence by the prosecution. The Mercer County Juvenile Court subsequently held a hearing on the matter and based upon the testimony presented, determined the video to be authenticated pursuant to Evid.R. 901, and permitted it to be used as evidence during the adjudicatory hearing. (See Doc. No. 1-HH).

         {¶5} On July 10, 2017, the matter proceeded to trial. Several witnesses testified for both sides, including L.M.' s pediatrician who testified to the causes and nature of her injuries, and the cell phone video was presented over E.B.'s objection. At the conclusion of the evidence, the Mercer County Juvenile Court found beyond a reasonable doubt E.B. to be a delinquent child on the grounds that she knowingly caused serious physical harm to L.M., to wit-felonious assault, in violation of R.C. 2903.11(A)(1), a felony of the second degree, if committed by an adult. The trial court did not find that the evidence supported a finding beyond a reasonable doubt that E.B. committed theft of L.M.'s property and dismissed Count Two of the complaint. The Mercer County Juvenile Court transferred the case to Auglaize County, where E.B. was a resident, for disposition.

         Disposition in Auglaize County

         {¶6} On September 28, 2017, E.B. appeared with her parents and legal counsel before the Auglaize County Juvenile Court for disposition of the case. The Auglaize County Juvenile Court heard closing arguments from each side and reviewed a confidential file containing reports of E.B.'s conduct since the December 2, 2016 incident, which contained indicia of E.B.'s continued poor decision making and lack of progress in academics at school.

         {¶7} As part of disposition, the Auglaize County Juvenile Court committed E.B. to the legal custody of the Ohio Department of Youth Services ("DYS") for institutionalization for an indefinite term consisting of a minimum of one year and a maximum period not to exceed her attainment of age 21. However, the Auglaize County Juvenile Court suspended the DYS commitment, and instead committed her to the custody of a juvenile detention center for a period of 30 days, with 20 days suspended, and placed her on community control and intensive probation for an indefinite period of time up to age 21, subject to numerous terms and conditions, which were also explicitly set forth in the court's October 2, 2017 judgment entry. {¶8} E.B. filed this appeal, asserting the following assignments of error.

         ASSIGNMENT OF ERROR NO. 1

         THE TRIAL COURT ERRED IN ADJUDICATING THE MINOR CHILD DELINQUENT AS THERE WAS NOT A SUFFICIENT AMOUNT OF EVIDENCE FOR THE TRIAL COURT TO FIND THAT THE STATE HAD ESTABLISHED ALL THE ELEMENTS OF R.C. § 2903.11(A)(1) BEYOND A REASONABLE DOUBT.

         ASSIGNMENT OF ERROR NO. 2

         THE TRIAL COURT'S DECISION ADJUDICATING THE MINOR CHILD DELINQUENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         ASSIGNMENT OF ERROR NO. 3

         THE ATTORNEY APPOINTED TO REPRESENT THE MINOR CHILD IN THIS CASE DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL.

         {¶9} For ease of discussion, we elect to address the first and second assignments of error together.

         First and Second ...


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