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In re T.T.

Court of Appeals of Ohio, Second District, Montgomery

July 26, 2019

IN RE T.T.

          Trial Court Case No. 2018-5011 (Appeal from Common Pleas Court - Juvenile Division)

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Attorney for Appellant

          JEFFREY D. LIVINGSTON, Atty. Reg. No. 0062466, Attorney for Appellee

          OPINION

          DONOVAN, J.

         {¶ 1} The State appeals from the February 22, 2019 order of the juvenile court, which granted T.T.'s motion to dismiss the State's complaint for assault. For the reasons that follow, we reverse the judgment of the trial court and remand the matter for further proceedings.

         {¶ 2} The State's complaint, which was filed in the Montgomery County Court of Common Pleas, Juvenile Division on October 7, 2018, alleged that:

* * * [T.T.], a child about the age of 16 years, * * * appears to be delinquent in that on or about 09-25-18, * * * [she] did knowingly cause or attempt to cause physical harm to [the victim] and the offense occurred in or on the grounds of a state correctional institution or an institution at the department of youth services, the victim of the offense was an employee of the department of rehabilitation and correction, the department of youth services, and the offense was committed by a person incarcerated in the state correctional institution, or by a person institutionalized in the department of youth services institution * * *

         The complaint specified that the offense charged was a felony of the third degree. The circumstances under which the assault was allegedly committed enhanced the degree of the offense.

         {¶ 3} At a hearing on October 31, 2018, T.T. denied responsibility for the assault, which allegedly occurred at the Montgomery County Center for Adolescent Services ("CAS"). On December 4, 2018, T.T. filed a motion to dismiss. She was charged with knowingly causing or attempting to cause physical harm to the victim and further that the offense occurred 1) in an institution of the Department of Youth Services ("DYS"), 2) the victim was an employee of the DYS, and 3) the offense was committed by a person institutionalized in the DYS institution pursuant to a commitment to the DYS, but T.T. asserted that the victim was not an employee of the DYS and that the CAS was not an institution of the DYS.

         {¶ 4} On January 25, 2019, the State responded to T.T.'s motion to dismiss. The State noted that on August 31, 2017, T.T. had been committed to the DYS for secure confinement until the age of 21, having been adjudicated delinquent in Lucas County for murder. The State attached to its response the following documents: the Lucas County judgment entry, an August 3, 2017 correspondence from the DYS Bureau Chief of Community Facilities to the Director of CAS, stating that CAS's "approved facility budget" for fiscal year 2018 was $3, 659, 237, and a copy of the Ohio DYS Community Corrections Facilities Grant/Renewal Application and Agreement between DYS and CAS for July 2017 through June 2018.

         {¶ 5} The State further asserted that T.T. and two other female DYS-incarcerated juveniles assaulted a detention officer at CAS. According to the State, pursuant to the agreement between CAS and DYS, female DYS-incarcerated juveniles were housed in a "discrete separate unit from non-DYS juveniles committed to CAS," and the $3, 659, 237 allocated to CAS for the 2018 fiscal year included costs associated with 15 beds available for females at CAS. "At the time of the assault [T.T.] was in the custody of DYS and housed in the DYS portion of the CAS facility."

         {¶ 6} The State also asserted that Juv.R. 22(D) enumerates five separate prehearing motions that "must be heard prior to the adjudicatory hearing," and that T.T.'s motion to dismiss did not fall within "any of the listed five prehearing motions." According to the State, T.T.'s motion was, instead, a request for the juvenile court to issue factual findings before the State put on any evidence on the issues of whether the victim was or was not an employee of DYS and whether CAS was or was not an institution of DYS. The State argued that these questions were factual issues that should be determined by the trier of fact at the adjudicatory hearing. The State also asserted that, because the juvenile rules do not specifically deal with motions to dismiss or motions for acquittal, "the analogous Crim.R. 29 should be used; "[u]nder Crim.R. 29 a motion for acquittal may not be granted until the conclusion of the State's case in chief," and it would therefore be improper for the juvenile court to sustain T.T.'s motion to dismiss prior to the hearing.

         {¶ 7} The State acknowledged that the victim in this case was not, in fact, an employee of DYS, but it asserted that the victim was employed by CAS, and "it necessarily follows [that] her position would not exist without the 15 beds DYS ha[d] contracted for at a cost of $3, 659, 237 for fiscal year 2018." The State argued that the agreement between CAS and DYS imposed several requirements upon CAS as part of the grant allocation, including making CAS staff available for regular interviewing, observation, and surveying so that the DYS Central Office could assess the services provided on an ongoing basis. According to the State, the victim's "position [was] ostensibly created by and at least partially subjected to some level of oversight by DYS."

         {¶ 8} The State analogized assaults committed by DYS inmates on CAS employees to assaults committed by inmates at private prisons." The State argued that "[p]rivate prison employees are not directly employed by the department of rehabilitation and correction in the same manner that CAS employees are not directly employed by DYS. They instead work for an entity which contracts with the department of rehabilitation and correction, or in the case of CAS with DYS, to house inmates." The State asserted that "private prisons themselves are pseudo state correctional facilities in the same manner the units devoted to DYS inmates at CAS are a pseudo DYS facility."

         {¶ 9} The State pointed out that the Ninth and Eleventh Districts have both concluded that assaults by inmates on corrections officers at a privately-operated correction institution are properly treated as assaults on corrections officers at a state facility, citing State v. Godfrey, 9th Dist. Lorain No. 09CA009703, 2011-Ohio-512, ¶ 15, and State v. Johnson, 11th Dist. Ashtabula No. 2001-A-0043, 2002-Ohio-6570, ¶ 20. According to the State, "[t]his conclusion logically follows" because the defendants in those cases were committed to the department of corrections and the private corrections officers assaulted were doing the same job as a state corrections officer. Here, T.T. was committed to DYS, which placed her at CAS, and the victim of the assault was employed as a corrections officer at CAS in the same manner a corrections officer would be employed in DYS's main facility. The victim was also working at a DYS facility when she was assaulted by a person committed to DYS. The State argued that the employment status of the victim and the relationship between CAS and DYS were factual issues that deserved to be resolved at an adjudicatory hearing, and that the motion to dismiss prior to the hearing should be dismissed.

         {¶ 10} On February 7, 2019, T.T. filed a reply, pointing out that "even the State agrees that the victim herein [was] not an employee of [DYS]," from which she concluded that her offense could not be elevated to a felony of the third degree. T.T. also noted that the terms of the agreement between DYS and CAS provided that CAS was contractually forbidden from employing any employee of DYS and that ""it seems clear that [DYS] would not consider [the victim] as one of its employees." T.T. further argued that, pursuant to the grant agreement, "the youths are at [CAS]. They are not institutionalized in a [DYS] institution."

         {¶ 11} T.T. argued that Johnson "does not stand for the proposition that assaults by inmates on correction officers at * * * privately operated prisons are to be treated as assaults on correction officers at a state prison." T.T. further distinguished Godfrey as "a case regarding the sufficiency of the evidence" where the court merely "found that there was testimony from the victim that the offense was on the grounds of a state correctional institution, that the victim was a corrections officer, and that the defendant was an inmate of the correctional institution." She stated:

The State fails to point out that the legislature has acted in regards to private operation and management of initial intensive program prison. R.C. 9.06. The department of rehabilitation and correction may contract for private operation and management pursuant to this section of the initial intensive program prison established pursuant to section 5120.033 of the Revised Code. Section 5120.033 deals with those convicted of OVI. The Court in Godfrey in dicta did say that under R.C. 9.06(G), an offense that would be a crime at a state correctional institution shall be a crime if committed by an inmate at a facility operated under R.C. 9.06. Id. at ¶ 20. [CAS] is not an Intensive Program Prison (IPP). It is not a private operation under R.C. 9.06. It is wholly inapplicable to the case at hand. {¶ 12} T.T. concluded that CAS would be in violation of the grant agreement if the victim-employee were an employee of DYS. "No need for a hearing exists. This alleged assault cannot be a felony of third degree."

         {¶ 13} On February 7, 2019, the State asked to supplement its response to T.T.'s motion to dismiss, and it filed a supplemental response on February 11, 2019. The State asserted that there was no dispute in this case that T.T. committed an assault on the grounds of a correctional facility or that she was institutionalized in DYS at the time of the offense. "These two facts alone render (C)(4)(b) and (C)(4)(c) [of R.C. 2903.13] irrelevant to this case and by default leave only (C)(3) or (C)(4)(a)." The State asserted that each "elevating provision contains ...


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