In re Robert Toler

• Decision Date: 04 May 1983
• Docket Number: 83-LW-4889,314
• Parties: IN THE MATTER OF: ROBERT TOLER Appellant. CASE
• Court: Ohio Court of Appeals

IN THE MATTER OF: ROBERT TOLER Appellant.

No. 314.

83-LW-4889 (12th)

Court of Appeals of Ohio, Twelfth District, Preble County.

May 4, 1983

John A Whittington, Finkelman and Ross, First National Bank Building, Middletown, Ohio 45042, for Appellant.

Wilfred Dues, Prosecuting Attorney for Preble County, Courthouse Eaton, Ohio 45320, for Appellee.

MEMORANDUM DECISION AND JUDGMENT ENTRY

PER CURIAM

This cause came on to be heard upon the appeal, transcript of the docket, journal entries and original papers from the Court of Common Pleas, Juvenile Division, of Preble County, Ohio transcript of proceedings, briefs and oral arguments of counsel.

Now therefore, the assignments of error having been fully considered are passed upon in conformity with App. R. 12(A) as follows:

Sometime in August, 1981, Burl Apple visited his seventy-eight (78) year old sister, Vesta Apple, at her Gratis, Ohio, home. He found the premises in disarray, and a small box which had contained money broken and empty. Burl Apple further found bruises on the face, chest, and one arm of Vesta Apple. The Preble County Sheriff's Office was notified, and a subsequent investigation of Vesta Apple's home revealed evidence of forced entry and knife marks on the bedroom wall.

On August 27, 1982, Preble County Sheriff's Department Deputies Simpson and Kittle took defendant-appellant Robert Toler, a fifteen and one-half (15 1/2 ) year old juvenile, into custody at Gratis to question him about the Apple theft. He was riding a new 1981 blue Suzuki motorcycle. Deputy Simpson read appellant his rights and took him in a squad car to find his mother. Mrs. Toler was not at home, so Simpson proceeded to drive the child to the Sheriff's Office at Eaton, Ohio. During the trip, which lasted approximately twenty minutes, appellant admitted involvement in the Apple theft. Upon arrival at the Sheriff's Department, Toler was taken to a conference room and read his rights a second time, this time in the presence of probation officer Keith Brown. The juvenile again admitted involvement in entering Vesta Apple's home and taking money from a small box in the bedroom.

At the trial, William Withrow, an Eaton motorcycle dealer, testified that he sold appellant a 1981 Suzuki motorcycle on August 17, 1981. The vehicle was purchased for eight hundred sixty dollars ($860) cash, and appellant paid the amount in twenty dollar ($20) bills.

The court below found Robert Toler to be a delinquent child under R.C. 2151.02, and committed him to the legal custody of the Ohio Department of Youth Services for an indefinite term of not less than one (1) year nor greater than the child's attainment of age twenty-one (21), as per R.C. 2151.355(5). Appellant has timely initiated this appeal from the decision below, and presents the following four assignments of error:

FIRST ASSIGNMENT OF ERROR:

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY ENTERING JUDGMENT AND DISPOSITION AGAINST HIM PURSUANT TO OHIO REVISED CODE SECTION 2151.355 AS REVISED EFFECTIVE NOVEMBER 23, 1981, EX POST FACTO.

SECOND ASSIGNMENT OF ERROR:

THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY REFUSING TO ACCEPT ADDITIONAL EVIDENCE EITHER BY REPORT OR BY ADDITIONAL TESTIMONY INTO THE SUPPRESSION HEARING, WHEN SUCH RESULT WAS CLEARLY IN THE INTEREST OF JUSTICE.

THIRD ASSIGNMENT OF ERROR:

THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY OVERRULING APPELLANT'S MOTION TO SUPPRESS ANY AND ALL CONFESSION STATEMENTS MADE TO POLICE OFFICERS OR COURT OFFICIALS, THUS ALLOWING SUCH TESTIMONY IN THE ACTUAL TRIAL ON THE MERITS.

FOURTH ASSIGNMENT OF ERROR:

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY ADJUDICATING DELINOUENT AND ENTERING JUDGMENT AGAINST HIM AT THE CONCLUSION OF THE CASE ON THE MERITS WHEREIN THE STATE'S EVIDENCE FAILED TO SUSTAIN THE CHARGES THEREFORE MAKING THE JUDGMENT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THEREFORE CONTRARY TO LAW AND AN ABUSE OF DISCRETION; AND THE FAILURE BY THE STATE TO PRESENT TESTIMONY OF THE PURPORTED VICTIM SUBJECT TO THE RIGHT OF CONFRONTATION BY AND CROSS EXAMINATION BY DEFENDANT IS A DENIAL OF DEFENDANT'S CONSTITUTIONAL RIGHTS AND DUE PROCESS OF LAW AND MERITS A DISMISSAL OF THE CHARGES.

The first assignment of error stems from appellant's commitment to the Ohio Department of Youth Services under R.C. 2151.355, which became effective after the delinquent act but before the commitment order. Appellant's position is that this constituted an ex post facto application of the law, violating Article I, Section 10, Clause 1 of the United States Constitution and Article II, Section 28 of the Ohio Constitution.

The object of Ohio and Federal Constitutional proscriptions of ex post facto legislation is to insure that no transgressor be subjected by subsequent enactment to any penalty, liability, or consequence that was not attached to the transgression when it occurred. Blackburn v. State (1893), 50 Ohio St. 428, 36 N.E. 18. The constitutional prohibitions against ex post facto law relate to criminal proceedings only. They have no application to civil proceedings. Butler v. Toledo (1855), 5 Ohio St. 225, U. S. v. An Article of Food Consisting of Cartons of Swordfish (D.C.N.Y. 1975), 395 F. Supp. 1184.

Appellant was found to have committed acts which, if committed by an adult, would have resulted in convictions for the crimes of grand theft (R.C. 2913.02) and aggravated burglary (R.C. 2911.11). However, because of his age, the matter was heard by the Juvenile Division of the Preble County Court of Common Pleas. Appellant was therein adjudicated a delinquent child and his disposition effected under the juvenile sections of the Revised Code (Chapter 2521).

Delinquency is not a crime in Ohio, and juvenile statutes are not criminal in nature. See In re L., Jr. (Juv. Ct. 1963), 92 Ohio L. Abs. 475, In re Januszewski (Cir. Ct. 1911), 10 Ohio L. Rep. 151, 196 F. 123. The purpose behind the juvenile system is not to convict and punish the recalcitrant child, but to protect him or her from acquiring the "taint of criminality" by implementing a program of "supervision, care, and rehabilitation." R.C. 2151.01(B). See also In re Agler (1969), 19 Ohio St. 2d 70, 249 N.E.2d 808.

Further, the ex post facto provisions of the Ohio and Federal Constitutions have been held to apply only to laws affecting substantive rights, and not to laws of a remedial nature dealing with rules of practice, methods of review, or courses of procedure. Kilbreath v. Rudy (1968), 16 Ohio St. 2d 70, 242 N.E.2d 658, Smith v. Putnam (D. Colo. 1965), 250 F. Supp. 1017. We think that the statute at issue here, entitled "Disposition of Delinquent Child," falls within the final classification above. It does not confer any substantive rights, but merely presents alternatives for dealing with children adjudicated delinquent.

Therefore, the disposition of the child according to R.C. 2151.355 was not contrary to the ex post facto provisions of th United States or Ohio Constitutions, and appellant's first assignment of error is overruled.

Appellant's motion to submit a report by psychologist Robert McBrady after the close of the suppression hearing is th fundament of the second assignment of error above. The motion was denied, ostensibly because the child consented to the repor only, which would preclude McBrady from being sworn and called as a witness, or undergoing cross examination. "This court," observed Judge Dye below, "will not receive any report in which the opposing party's ability to test the report is precluded."

A trial court may, for good cause shown, permit either party to offer additional evidence after that party has rested. The decision is within the sound discretion of the trial court, and such requests should be granted when justice so requires. Re Adoption of Earhart (1961), 117 Ohio App. 73, 190 N.E.2d 468. It is difficult to define what constitutes an abuse of discretion because the determination depends to a large extent on the facts of the particular case. However, it is clear that the term implies not merely an error in judgment, but an unreasonable or unconscionable attitude on the part of the trial court. Lee v. Jennings Transfer Co. (1967), 14 Ohio App. 2d 221, 237 N.E.2d 918.

Given the limited consent regarding the use of the report and the amount of evidence presented by appellant at the suppression hearing, we cannot say that the ruling denying appellant's motion reflects the "perversity of will, passion, or moral delinquency" necessary to find an abuse of discretion. McNeil v. McNeil (App. Ct. 1946), 46 Ohio L. Abs. 244, 68 N.E.2d 338. The trial judge had a firsthand opportunity to evaluate the juvenile's demeanor, intelligence and ability to understand. The determination of whether or not justice required the submission of additional evidence on these points was well within his discretion. Appellant's second assignment of error is therefore found not to be well taken.

Appellant's third assignment of error involves the denial below of the juvenile's motion to suppress his confession because it did not follow a knowing and intelligent waiver of his rights as required by Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602. The record indicates that appellant was advised of his Miranda rights by Deputy Simpson at least twice, once when placed in the squad car, and again while seated in a conference room at the Sheriff's Department. On both occasions, appellant indicated to Deputy Simpson that he understood his rights. Simpson and probation officer Brown, who witnessed the second waiver of rights in the conference room, both testified that it was their impression that appellant understood the rights as they were read to him.

The rights and procedures outlined...