In re Samantha Cunningham, Delinquent Child Case

• Decision Date: 18 October 2002
• Docket Number: 02-LW-4387,02-537-CA
• Citation: 2002 Ohio 5875
• Parties: IN THE MATTER OF: SAMANTHA CUNNINGHAM, DELINQUENT CHILD CASE
• Court: Ohio Court of Appeals

2002-Ohio-5875

IN THE MATTER OF: SAMANTHA CUNNINGHAM, DELINQUENT CHILD

No. 02-537-CA

02-LW-4387 (7th)

Court of Appeals of Ohio, Seventh District Harrison

October 18, 2002

Civil Appeal from the Court of Common Pleas, Juvenile Division, of Harrison County, Ohio Case No. 00-A-167

Hon Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro

For Appellee State of Ohio: Atty. Matthew Puskarich, Harrison County Prosecutor, Atty. T. Shawn Hervey, Assistant Prosecuting Attorney, 111 West Warren Street, Cadiz, Ohio 43907

For Appellant Samantha Cunningham: Atty. Mark Beetham, 146 South Main Street, Cadiz, Ohio 43907

OPINION

WAITE J.

This case arose out of juvenile delinquency complaint against Samantha Cunningham ("Appellant"), d.o.b. October 21, 1985, filed in the Harrison County Court of Common Pleas Juvenile Division, on May 23, 2000. The complaint charged Appellant with three counts of aggravated menacing, stemming from two letters that were discovered at her junior high school.

On June 16, 2000, Appellant filed a Motion to Suppress. Appellant sought to suppress all statements she made on May 18, 2000, at a meeting with the school principal, Mr. Mowery and with Lieutenant John McMillan ("Lt. McMillan") of the Harrison County Sheriff's Department. A hearing on the motion to suppress was held on August 7, 2000. The motion was denied by journal entry on October 17, 2000.

The adjudicatory hearing took place on October 25, 2000. Appellee submitted one exhibit as evidence, which was a letter ("Letter No. 1") purportedly written by Appellant on or about May 11, 2000. Letter No. 1 contained references to Mr. Mowery and to two teachers at the school, Nancy Custer and Janet Bogus. Another letter ("Letter No. 2") was also found at the school a few days later. Letter No. 2 was not introduced at trial, but testimony about the letter indicated that it contained death threats directed at various teachers and referred to knives, guns, bombs, and the Columbine High School murders. (10/25/00 Tr., p. 65.) There was very little discussion about Letter No. 2 at trial, and Appellee's theory of the case appeared to be that Appellant committed aggravated menacing in authoring and distributing Letter No. 1.

The adjudicatory hearing concluded on January 10, 2001.

A dispositional hearing was held on January 17, 2001. On February 7, 2001, the trial judge ordered Appellant to be detained for ninety days at the Sargus Juvenile Detention Center ("Sargus"). The court also ordered Appellant's mother, Tresa Cunningham, to attend parenting classes. Appellant appealed the dispositional order to this Court. This Court granted a stay of execution of Appellant's detention.

On December 12, 2001, this Court vacated the February 7, 2001, decision of the juvenile court because there was no record that Appellant had ever been adjudicated a delinquent. In re Cunningham (Dec. 12, 2001), 7th Dist. No. 01-527-CA.

On December 14, 2001, the juvenile court issued a "Nunc Pro Tunc Order of Adjudication." The juvenile court acknowledged that it had never executed a journal entry declaring Appellant to be a delinquent. The juvenile court then made a finding that Appellant was a delinquent, based on its previous finding that she had menaced two teachers at the school. The third count in the complaint, which alleged that Appellant menaced the school principal, was dismissed at a prior hearing.

The dispositional hearing was held on January 9, 2002. At the hearing, the prosecutor noted that Appellant had already spent twenty-four days in detention at Sargus. (1/9/02 Tr., p. 2.) The prosecutor was satisfied that this had been sufficient punishment. (1/9/02 Tr., p. 2.) The prosecutor recommended a ninety-day sentence, with credit for days served. The prosecutor also recommended that the remaining days be suspended and that Appellant be given six months of probation. (1/9/02 Tr., p. 2.) The trial court did not accept the prosecutor's recommendation and sentenced Appellant to ninety days of incarceration at Sargus, along with eighteen months of probation.

The juvenile court judge also held that, "[t]he stay of execution pending appeal order issued by the Court of Appeals on February 8, 2001 remains in effect." (1/9/02 Tr., p. 5.) It must be pointed out that the juvenile court's order is incorrect as to the effect of any prior stay issued by this Court. When this Court issues a stay of a lower court decision, pursuant to App.R. 7(A) the stay is only effective "pending appeal." This Court's stay expired upon termination of the prior appeal. We will interpret the juvenile court judge's statement to signify that he was issuing his own stay of execution of the dispositional order.

Appellant timely filed this appeal, which must be expedited pursuant to App.R. 11.2(D).

Appellant presents seven assignments of error for review. Appellant's first assignment of error is dispositive of the part of this appeal dealing with Appellant's delinquency adjudication, rendering as moot assignments of error two, three, four, five, and seven. Appellant's first assignment of error states:

"THE TRIAL COURT ERRED IN FINDING BEYOND A REASONABLE DOUBT THAT JUVENILE SAMANTHA CUNNINGHAM COMMITTED ALL OF THE ELEMENTS OF THE CRIME OF AGGRAVATED MENACING."

Appellant's argument appears to be that there was insufficient evidence to find that she committed aggravated menacing, and therefore, she could not have been adjudicated a delinquent.

"A 'delinquent child' has been defined as a child whose conduct constitutes a violation of any criminal law statute." In re Felton (1997), 124 Ohio App.3d 500, 503, 706 N.E.2d 809. See former R.C. §2151.02(A).

This Court's standard of review of a juvenile delinquency determination requires us to ascertain whether any reasonable trier of fact, after reviewing the evidence in the light most favorable to the prosecution, could have found that the essential elements of the complaint were proven beyond a reasonable doubt. In re Washington (1996), 75 Ohio St.3d 390, 392, 662 N.E.2d 346; State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492. See Juv.R. 29(E)(4).

When a juvenile challenges the sufficiency of the evidence he or she is asking the reviewing court to make a determination as to whether the evidence is legally adequate to sustain a verdict. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. This is a question of law, which we review de novo. Id. A conviction, or in this case, a delinquency adjudication, based on legally insufficient evidence constitutes a denial of due process of law. See Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652.

This Court's function when reviewing sufficiency of the evidence is to examine the evidence admitted at trial and to determine whether, if it was believed, it would convince the average person of the defendant's guilt beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, 172, 10 O.O.3d 340, 383 N.E.2d 132. It is not the function of an appellate court to substitute its judgment for that of the factfinder. Jenks, 61 Ohio St.3d at 279, 574 N.E.2d 492. The weight to be given the evidence and the credibility of the witnesses are primarily issues for the trier of fact to determine. State v. Ballew (1996), 76 Ohio St.3d 244, 249, 667 N.E.2d 369.

Appellant's argument relating to the insufficiency of the evidence has two prongs. First, Appellant asserts that she could not have "knowingly" committed aggravated menacing because, as all the witnesses agree, she did not personally deliver the letter to the victims. Appellant argues that, even if she did write Letter No. 1, she never intended for the letter to be read by those who were mentioned in the letter. This part of Appellant's argument is not persuasive.

Appellant was charged with being a delinquent by committing aggravated menacing. R.C. §2903.21(A), the aggravated menacing statute, sets forth that: "[n]o person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person, the other person's unborn, or a member of the other person's immediate family."

The delinquency proceedings focused on Letter No. 1. Because Appellee did not introduce Letter No. 2 into evidence and the trial court's judgment entry only refers to Letter No.1, the delinquency adjudication must stand or fall based solely on the significance of Letter No. 1.

Appellant believes that in order to prove she had criminal intent, the state was required to prove that she delivered Letter No. 1 to those people mentioned in the letter. Appellant is mistaken in her understanding of criminal intent. "The law has long recognized that intent, lying as it does within the privacy of a person's own thoughts, is not susceptible of objective proof. The law recognizes that intent can be determined from the surrounding facts and circumstances, and persons are presumed to have intended the natural, reasonable and probable consequences of their voluntary acts." State v. Garner (1995), 74 Ohio St.3d 49, 60, 656 N.E.2d 623.

The level of criminal intent required for aggravated menacing is that the defendant committed the crime "knowingly." "Knowingly" is defined in R.C. §2901.22(B): "[a] person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist."

Based on the record here, a reasonable person could determine that 1) Appellant either made and distributed copies of Letter No. 1, or left the letter in a public place so that it would be read by others in the school; and 2) Appellan...