In re J.O.

• Docket Number: 111747
• Decision Date: 06 July 2023
• Citation: 2023 Ohio 2293
• Parties: IN RE J.O. A Minor Child
• Court: Ohio Court of Appeals

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2023-Ohio-2293

IN RE J.O. A Minor Child

No. 111747

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 6, 2023

Civil Appeal from the Cuyahoga County Common Pleas Court Juvenile Division Case No. DL-22-102807

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Jacob Williams, Assistant Prosecuting Attorney for appellee.

The Law Office of Jaye M. Schlachet, Jaye M. Schlachet, and Eric M. Levy, for appellant.

JOURNAL ENTRY AND OPINION

ANITA LASTER MAYS, ADMINISTRATIVE JUDGE

{¶ 1} Appellant J.O. appeals her delinquency adjudications and asks this court to either vacate the delinquency or vacate her disposition. We affirm in part, vacate in part, and remand for a disposition hearing.

I. Procedural History

{¶ 2} On March 21, 2022, J.O. was charged with the following three counts:

Count 1 - felonious assault by means of deadly weapon, a second-degree felony, in violation of R.C. 2903.11(A)(2), with one- and three-year firearm specifications;

Count 2 - felonious assault resulting in serious physical harm, a second-degree felony, in violation of R.C. 2903.11(A)(1), with one- and three-year firearm specifications; and

Count 3 - tampering with evidence, a third-degree felony, in violation of R.C. 2921.12(A)(1), with one- and three-year firearm specifications.

{¶ 3} Prior to the start of the bench trial, J.O. stipulated to the hospital record and that she was 15 years old at the time of the offense. (Tr. 8.) Next, the defense stipulated to the authenticity of the news clip from Action 19 news. (Tr. 8.) Finally, the state requested a separation of witnesses that was granted by the trial court. (Tr. 9.) The court stated to the testifying witnesses:

You're gonna be asked to testify either today or Thursday, and then you are instructed that you are not to discuss your testimony with anyone else that's in your group. You can't get on the stand, testify, and then go tell them what you said and what was asked. If it is relayed and shown to me that you do in fact violate this order, you will be held in contempt and you will be incarcerated.

(Tr. 36.)

{¶ 4} After the separation-of-witnesses instruction, the victim, C.H., was the first to testify. However, the trial court did not swear in C.H., and J.O.'s trial counsel failed to object. (Tr. 40.) After the remaining witnesses testified, the state rested, and the defense rested its case without calling any witnesses. In the state's closing argument, the state conceded that the three-year firearm specification was improperly applied to the tampering with evidence count, and the trial court agreed. In the defense's closing argument, trial counsel requested that the trial court consider lesser included offenses and argued that the shooting was an accident.

{¶ 5} The matter proceeded to disposition on June 30, 2022, and the trial court imposed a disposition of one year on Count 1 and one year on the three-year firearm specification, to be run prior and consecutive to the one year on the underlying offense for a total of a two-year sentence with respect to Count 1. The trial court found that the gun specification in Count 2 merged with the gun specification in Count 1 and that the time from Counts 2 and 3 be served concurrently to Count 1 for a total of two years at the Ohio Department of Youth Services with credit for time served.

II. Facts

{¶ 6} At the bench trial, the court heard testimony from six witnesses. The following pertinent testimony was proffered.

{¶ 7} On March 19, 2022, J.O., C.H., two additional teenagers, and one baby were gathered in a bedroom when C.H. was shot in the face. Officer Sean Kiernan ("Officer Kiernan") was one of the officers called to scene. Officer Kiernan testified that upon arrival, he initially thought that J.O. was still at the house but was informed that she had fled the home. Upon locating the victim, Officer Kiernan testified that he tried applying first aid because C.H. was covered in blood and barely conscious. Officer Kiernan stated that there was a considerable amount of blood around C.H. as well. C.H. was taken outside to the ambulance, and Officer Kiernan began searching the scene looking for evidence and witnesses. Officer Kiernan observed a live round, a round that could be fired and contained the bullet, casing, gun powder, and primer still intact inside one of the doors in a bedroom. Officer Kiernan and the other officers that searched the bedroom never found the spent shell casing from the fired gun.

{¶ 8} Officer Kiernan testified that once C.H. was in the ambulance, J.O. returned to the home, admitted being the shooter and was taken into custody to be questioned. J.O. did not have the firearm with her. However, J.O. did eventually tell the officers where the gun was located after sending them to several other addresses.

{¶ 9} C.H., the victim, testified that she and J.O. met on Instagram and then started dating. C.H. stated that the relationship ended because J.O. shot her. C.H. also stated that on the previous day, C.H. was on the phone, "Facetiming"^[1] with one of her friends. J.O., who was at C.H.'s house at the time, took the phone and stated that she was going to kill C.H. and C.H.'s friend.

{¶ 10} The day of the shooting, C.H. testified she was lying on her side, on the bed, speaking with one of the minors in the bedroom. C.H. stated that she heard a boom. C.H. realized that J.O. had shot her in the face with the gun that C.H. had observed J.O. with the day before. C.H. stated that the bullet from the gun entered her face under her right eye and came out behind her right ear. After the shooting, C.H. observed J.O. running out of the room with the gun. On cross-examination, C.H. testified that J.O. was playing with the gun and that she told her mother that the shooting was an accident. C.H. also testified that her mother told Action 19 news that the shooting was an accident.

{¶ 11} Next, K.W.B., one of the teenagers in the bedroom at the time of the shooting, testified that J.O. shot C.H. in the face. K.W.B. testified that she observed J.O. with the gun at the basketball court the previous day. On the day of the shooting, K.W.B. testified that after J.O. shot C.H. in the face, she took the spent shell casing and put it in her pocket.

{¶ 12} Det. Salvatore Santillo ("Det. Santillo"), the detective assigned to the case and to question J.O., testified that his investigation did not reveal that anyone other than J.O. was in possession of the gun. He testified that upon searching the room where the shooting took place, he did not find the spent shell casing from the bullet that struck C.H. in the face. Det. Santillo also testified that when asked where the gun was located, J.O. took him and other officers to several addresses. Eventually J.O. took them to the correct address where the gun was located. Det. Santillo observed that the magazine had been removed from the gun and the chamber had been cleared.

{¶ 13} Det. Santillo continued his testimony by stating that the gun had a finger safety on it, which keeps the gun from being accidentally discharged. The gun required five to six pounds of pressure to pull the trigger. Det. Santillo testified that the firearm would not have gone off unless there was a deliberate squeeze of the trigger.

{¶ 14} At the end of the trial, the trial court adjudicated J.O. delinquent. On June 8, 2022, J.O.'s trial counsel filed a written request for a "Finding of Fact and Conclusion" pursuant to Juv.R. 29(F)(3) and Civ.R. 52. At the disposition hearing, the trial court stated that it disagreed with trial counsel that the judge has to make findings of fact and conclusions of law and denied the request. The trial court proceeded with disposition of J.O. to two years at the Ohio Department of Youth Services with credit for time served.

{¶ 15} J.O. filed this timely appeal and assigned eight errors for our review:

1. Appellant's adjudication must be reversed as the state of Ohio failed to present sufficient evidence to support the conviction;

2. Appellant's adjudications are against the manifest weight of the evidence;

3. The testimony of the victim and material witness, C.H., was given without swearing the witness in and absent any oath in violation of appellant's Sixth Amendment right to confrontation; 4. Appellant's trial counsel was ineffective in failing to object to C.H. testifying without being sworn in;

5. The trial court erred by entering convictions and sentence on both felonious assault counts, which were required to be merged;

6. The trial court erred when it refused to issue a written findings of fact and conclusion of law after a timely request by appellant;

7. The trial court erred when it did not consider the lesser included offenses to felonious assault; and

8. The trial court erred when it imposed a sentence in its journal entry that differed from that orally pronounced in court.

III. Sufficiency of the Evidence

A. Standard of Review

{¶ 16} "The standard of review employed by this court in determining whether a juvenile's adjudication as a delinquent child was supported by sufficient evidence is the same as the standard used in adult criminal cases." State v. A. N.C., 12th Dist. Warren No. CA-2017-02-012, 2018-Ohio-362, ¶ 8, citing In re B.T.B., 12th Dist. Butler No. CA-2014-10-199, 2015-Ohio-2729, ¶ 16.

{¶ 17} "'An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt.'" State v. Bradley, 8th Dist. Cuyahoga No. 108983, 2020-Ohio-3460, ¶ 6, quoting State v. Driggins, 8th Dist. Cuyahoga No. 98073, 2012-Ohio-5...