In re Greg Hubbs, Alleged Delinquent Minor

• Decision Date: 30 April 1987
• Docket Number: 87-LW-1551,86AP-659,86AP-660
• Parties: In the Matter of: Greg Hubbs, Alleged Delinquent Minor, Defendant-Appellant.
• Court: Ohio Court of Appeals

In the Matter of: Greg Hubbs, Alleged Delinquent Minor, Defendant-Appellant.

Nos. 86AP-659, 86AP-660.

87-LW-1551 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

April 30, 1987

APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.

JAMES KURA, Public Defender, and PAUL SKENDELAS, for appellant.

MICHAEL MILLER, Prosecuting Attorney, and STEVEN C. BECHTEL, for appellee State of Ohio.

OPINION

NUGENT Judge.

Appellant, Greg Hubbs, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, overruling the appellant's motion to dismiss on the grounds of double jeopardy and raises a single assignment of error as follows:

"Retrial of appellant is barred by the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and Article I, Section 10 of the Ohio Constitution.'

Appellant was charged with vandalism of the Madison Middle School on June 14, 1985; with grand theft of stereo equipment belonging to the Groveport Madison School District on June 14, 1985; and with breaking and entering with the purpose to commit a theft offense in the Madison Middle School on June 14, 1985.

Originally, five juveniles, including appellant, were charged for the incidents that allegedly occurred on June 14, 1985. At the preliminary hearing held on October 23, 1985, the referee determined there was sufficient evidence to proceed against all defendants. Appellant entered a denial to all three complaints and trial commenced against appellant alone on December 3, 1985 upon the original complaints.

During the trial, it soon became apparent that there was no evidence to support the claim against appellant as to the events of June 14, 1985. A co-defendant, Jason Adam Barlow, testified for the state, in part, as follows:

"MR. BECHTEL: Jason, how did^how did the discussion^or, how did the topic of breaking into the school first come about?

"MR. MARLOWE [sic]: When I was with James Spradlin, and he asked me did I want to go in; and, I said yeah. So, we went in.

"Q. Was that the first entry?

"A. Yeah.

"Q. Okay. What were you planning to do when you got inside the school?

"A. We didn't know. We were just gonna go in and look around, and see what was there.

"Q. Okay. Would you explain for the Court what happened when you made that entry?

"A. The first entry?

"Q. Yeah.

"A. Okay. I spent the night at James Spradlin's house; and, that night^there was a window that was already busted^like one of the little windows next to the door^and there was a board on it, and we kicked the board in and just went inside. And while we was looking around in there, we seen this room in the gym and it had stereo equipment, the speakers and that in it; and, we stacked it up by the window, and then we went and looked around the rest of the school; and we took the stuff from out of the room, and took it and locked it in his shed.

"Q. So you took that property. Right?

"A. Yes.

"Q. That was the school's property?

"A. Yes.' (Tr. 52-53.)

Barlow went on to testify that appellant was not present during the June 14, 1985 incident, but was with he and James during the first of two break-ins on June 21, 1985 during which some vandalism occurred, such as pouring glue on the walls, spray painting the inside of the building, destroying the janitor's room and rolling out toilet paper.

The state of Ohio at this point, in the belief that there was no evidence to support the charges against appellant as to the date of June 14, 1985, sought to have all charges dismissed:

"MR. BECHTEL: Your Honor, at this time, the State would move to dismiss the charges alleged in the affidavit Greg Hubbs which pertain to the date of June 14th. I think the testimony that's been presented today is, needless to say, somewhat of a surprise to the State; and the evidence that's been presented, the State feels that it cannot put Greg Hubbs in the school on June 14th, the dates that are alleged in the affidavit. At this point, the State would be requesting that the Court dismiss the affidavits.

"THE COURT: Well Mr. Bechtel, the Court would permit you to amend, if you wish. However, if the Court granted the amendment, the Court would certainly grant Mr. Skendelas additional time to prepare defense as to the amendment. Your request is dismissal at this time. Is that correct?

"MR. BECHTEL: That is correct, your Honor.

"THE COURT: Okay. You're not requesting amendment at this time?

"MR. BECHTEL: No.

"THE COURT: Mr. Skendelas, do you wish to speak to the request at this time?

"MR. SKENDELAS: Yes, your Honor. Your Honor, what I'm concerned about is that if the prosecutor dismisses the affidavit and refiles it, I will want witnesses from here today; and, our case is not going to get any stronger. The danger that we run is that if this matter is set over for a whole new set of^series of hearings, that our case is going to get weaker because of witnesses not being able to^to make appearances, because of witnesses not being available; and, this matter also occurred back in the middle of June. No matter which date that we're looking at, the passage of time certainly is not going to assist the memory of my clients. If this matter is dismissed, then it would be refiled and we go through a whole new set of hearings and it would easily be in January or February before this matter is finally resolved. Your Honor, we have no objections if the prosecutor seeks to amend the affidavit. We have some concerns right now if this matter is set over for further hearing or a whole new set of filings, because our people are present today and are willing to go forward, some were inconvenienced just to be here today.

"THE COURT: Well Mr. Skendelas, I would expect that the State will labor under the same difficulties that you would have; and, the Court has indicated to the State that the Court certainly would permit amendment and give you additional time, if you felt that you need it. The State's request at this time is that they dismiss the charges and they are not requesting amendment at this time. The Court will dismiss the complaints at the request of Mr. Bechtel. That's all. Thank you.' (Tr. 56-57.)

Thereafter, on December 12, 1985, appellant was charged with vandalism of the Madison Middle School on June 21, 1985, and with breaking and entering of the Madison Middle School on June 21, 1985 with the purpose to commit a felony, to wit: vandalism.

Appellant entered a denial to each charge on January 8, 1986 at the preliminary hearing. Appellant filed a motion to dismiss the charges on February 4, 1986 on double jeopardy grounds. On February 11, 1986, the referee recommended that the motion to dismiss be overruled and the trial court adopted the recommendation of the referee in a written decision filed June 9, 1986. Appellant now appeals.

In Benton v. Maryland (1969), 395 U.S. 784, the United States Supreme Court declared the double jeopardy provision of the Fifth Amendment to the United States Constitution to be applicable to the States through the Fourteenth Amendment, overruling Palko v. Connecticut (1937), 302 U.S. 319, which had held to the contrary.

There is no dispute herein that jeopardy had attached during the December 3, 1985 trial of appellant on the three charges. Jeopardy attaches in a non-jury trial when the court begins to hear evidence. Serfass v. United States (1975), 420 U.S. 377. Thus, the same rule would apply in cases heard in juvenile court where there is no jury, where jeopardy would attach when the juvenile court, as the trier of the facts, begins to hear evidence. Breed v Jones (1975), 421 U.S. 519, 531; Sims v. Engle (C.A.6, 1980), 619 F. 2d 598, and Keener v. Taylor (C.A.6, 1981), 640 F. 2d 839. Every person has a right not to be put in jeopardy more than once for the same offense, but this principle must not be applied so as to create an immunity for crimes where a series of offenses had...