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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
-- Juvenile Court.
-- Delinquent Children; Juvenile Traffic Offenders.
-- Youth Services.
State v. Yarger
, 181 Ohio App. 3d 132,
– A juvenile turns eighteen at 12:01 a.m. on his birthday, not eighteen years after the time of birth. Court declines to apply the common law rule of lenity and applies the common law no fractions of the day rule. Accord:
State v. Clark
(1993), 84 Ohio App. 3d 789.
State v. Wyerick
, 182 Ohio App. 3d 500,
– Defendant was indicted for a burglary committed when he was under 18 without first having been bound over. Though the opinion is not entirely clear, it appears he was bound over on another burglary and convicted of a felony as a result. Thus he no longer met the definition of "child" in
In re S.B.
, 121 Ohio St. 3d 279,
– A juvenile may be found delinquent for failure to comply with a court order. Doing so does not violate due process. While probation violation proceedings might be the better practice, nothing in the Revised Code requires the state to elect such proceedings instead of pursuing a delinquency charge.
State v. Warren
, 118 Ohio St. 3d 200,
-- Rapes were committed when the defendant was fifteen. Seventeen years later he was convicted and received life sentences. Statutes that went into effect after the crimes were committed mandated he be prosecuted as an adult after reaching age 21. No due process violation found.
State v. Mohamed
, 178 Ohio App. 3d 695,
– Mother born in Somalia was charged as an adult with kidnapping, felonious assault and child endangerment, it being alleged she and her husband had used a hot fork to discipline three children in their care. Her actual age was in dispute. The state submitted documents indicating a January 1st birthday which would have made her 18. The defense offered testimony that the age provided in such documents could not be relied upon, as documents prepared to permit emigration from refugee camps was prepared by Somalis who did not speak the same language as the Bantu refugees. There was a pattern of using either January 1st or July 1st as the birth date. To establish jurisdiction the prosecutor had to establish age beyond a reasonable doubt. Court did not abuse its discretion ordering case transferred to the juvenile court.
Maple Heights v. Ephraim
, 178 Ohio App. 3d 439,
-- Municipal ordinance made parents punishable for the delinquent acts of their children. (1) Ordinance was an exercise of police power, not self-government, and served a valid purpose. (2)
is a general law. That provision requires a voluntary act, or omission to perform an act or duty, and proof of a culpable mental state. (3) While vicarious criminal liability applies to corporation through the doctrine of respondeat superior, and to a degree under conspiracy laws, generally personal responsibility is required as expressed in
. (4) Thus the ordinance and statute are in conflict. Court does not decide constitutional challenges.
In re Baby Boy Doe
, 145 Ohio Misc. 2d 1,
-- Trial court determines Ohio‘s deserted child law (
) is invalid because its notice provisions, which are procedural, are at odds with rules adopted by the Supreme Court, which take precedence.
State v. Drake
, 192 Ohio App. 3d 216,
– Defendant charged with nonsupport was deemed ineligible for intervention in lieu of conviction because support was for a child under age thirteen. Held that the victim is the payee of the support order, not the child for whose benefit it has been ordered.
In re D.B.
, 129 Ohio St. 3d 104,
– As applied to offenders under age 13,
, proscribing non-forcible sexual relations with a child under thirteen, is unconstitutionally vague and violates the right to equal protection. ¶24: “When an adult engages in sexual conduct with a child under the age of thirteen, it is clear which party is the offender and which is the victim. But when two children under the age of 13 engage in sexual conduct with each other, each child is both an offender and a victim, and the distinction between those two terms breaks down.” Choosing to prosecute one child but not the other is discriminatory enforcement. Prosecution remains possible when force is used or other circumstances exist.
In re D.K.
, 185 Ohio App. 3d 355,
– Notebooks left in a classroom were turned in at the office and examined by the high school principal, who found disturbing writings and records pertaining to prior disciplinary proceedings for having such materials while in junior high school. Juvenile was charged with being unruly. Opinion does not address how such activity might make one an unruly child, but disposes of the appeal by finding the principal was improperly allowed to testify as to the content of the disciplinary records, this being in violation of the juvenile’s right to confrontation..
Graham v. Florida
(2010), 130 S.Ct. 2011 – A juvenile may not be sentenced to life without parole for a non-homicide offense. 16-year old initially was placed on probation for burglary, but was sentenced to life upon violation. Florida has eliminated parole. While the subject may end up serving life he must be given a meaningful opportunity to gain release. “Juvenile” means under eighteen.
In re C.P.
, syllabus -- "To the extent that it imposes automatic, lifelong registration and notification requirements on juvenile sex offenders tried within the juvenile system,
violates the constitutional prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 9, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 16."
J.D.B. v. North Carolina
(2011), 131 S.Ct. 2394 – Determining whether the person questioned was in custody turns on an objective assessment of (1) the circumstances surrounding the interrogation, and (2) whether a reasonable person would believe he or she was at liberty to end questioning and leave. A child’s age is to be taken into account making this assessment. Thirteen year old was taken out of class to a conference room where a uniformed officer and a school administrator questioned him for at least 30 minutes.
In re Baby Boy Blacksheares
(2000), 90 Ohio St. 3d 197 -- Syllabus: "When a newborn child's toxicology screen yields a positive result for an illegal drug due to prenatal maternal cocaine abuse, the newborn is, for purposes of
, per se an abused child." Court avoids deciding whether a fetus is a "person" and thus a "child."
In re L.S.
, 152 Ohio App. 3d 500,
-- ¶ 49: There is no constitutional right to the effective representation by counsel in civil cases between individual parents involving visitation and residential parent status. Mother who could not remember the name of a fiance she planned to move to Las Vegas with, and who had received a Lexus and $40,000 in jewelry from an admirer, loses custody to father following long combat. Case provides good discussion of sufficiency of the evidence review in such circumstances.
In re Davis
, Mahoning App. No. 02-CA-95,
-- Custody dispute between established father and maternal great-grandmother who had temporary custody after natural mother disappeared. At ¶11: "In an
child custody proceeding between a parent and a nonparent, the court may not award custody to the nonparent without a finding of parental unsuitability." Citing
In re Perales
(1977), 52 Ohio St. 2d 89. Opinion goes on to discuss the fundamental right of parents to raise their children and
Troxel v. Granville
(2000), 530 U.S. 57.
In re Trowbridge
, Franklin App. No. 03AP-405, 406,
-- In cases initiated by children services agencies, custody disputes between a parent and non-parent do not require a finding of parental unfitness in order for the non-parent to prevail. ¶12: "Although the juvenile court has jurisdiction over both private custody cases and cases initiated by children's services agencies, its jurisdiction over the former is based on
, and the later on
...Thus, because the holding in
was limited to custody proceedings filed pursuant to
is not applicable to this case." Best interest test controls the outcome.
In re D.R.
, 153 Ohio App. 3d 156,
In re Perales
does not apply to dispositional determinations involving children adjudicated dependent, neglected or abused. Such finding implies parental unsuitability.
In re Blake
, 151 Ohio App. 3d 777,
-- Grandparents' custody motion deemed frivolous, in part because it failed to allege parental unfitness. Award of attorney fees in favor of parents affirmed.
Harrold v. Collier
, 106 Ohio St. 3d 44,
-- Syllabus: "(1) Ohio courts are obligated to afford some special weight to the wishes of parents of minor children when considering petitions for nonparental visitation made pursuant to
Troxel v. Granville
(2000), 530 U.S. 57..., followed. (2) The state has a compelling interest in protecting a child's best interest, and Ohio's nonparental-visitation statutes are narrowly tailored to serve that compelling interest. (
, construed and applied.)"
In re E.T.
, 155 Ohio App. 3d 718,
-- For purposes of a change of custody motion, a juvenile court retains jurisdiction if the child lived in this state for at least six months prior to commencement of the original action. But the court may decline to exercise jurisdiction if it is not a convenient forum. Child had lived with her father in Arizona for three years.
In re Budenz
(1999), 133 Ohio App. 3d 359 -- Child initially went by mother's last name, but father obtained a juvenile court order that she use his name. Father was imprisoned for embezzlement. Child was humiliated to the extent her health declined. Probate court abused its discretion in denying name change request. Also see
In re Wilhite
(1999), 85 Ohio St. 3d 28;
In re Newcomb
(1984), 15 Ohio App. 3d 107.
In re Anspach
(2000), 136 Ohio App. 3d 535 -- Juvenile court did not abuse its discretion in refusing to seal the record where the offender continued to deny responsibility for his actions and while staying out of trouble as an adult had accomplished little.
In re Hennessey
, 146 Ohio App. 3d 743,
-- Juvenile about to turn 18 was ordered to serve the first part of his delinquency sentence in a juvenile facility and the balance in an adult jail. Under the controlling versions of
this was not permitted.
State v. Washington
, Montgomery App. No. 20218,
-- Seventeen year old previously convicted of a felony as an adult could be prosecuted in the general division of common pleas court without a further bindover hearing. According to
he does not fall within the definition of a "child."
In re J.A.P.
, Montgomery App. No. 20058,
-- Juvenile entered an admission to negligent assault. Subsequently the victim died and he was charged with negligent homicide. Charge was improperly dismissed.
State v. Carpenter
(1993), 68 Ohio St. 3d 59 distinguished on the basis that case involved a negotiated plea.
In re Whittekind
, Washington App. No. 04CA22,
-- Evidence did not support finding juvenile delinquent for being a chronic truant where the evidence was that his father prohibited him from attending school.
In re Goodman
, 161 Ohio App. 3d 192,
-- Court rejects constitutional challenges to Chapter 2950 as applied to juveniles for the same reasons as prior challenges in adult cases.
Adoption Link v. Suver
, 112 Ohio St. 3d 166,
-- Clark County granted temporary custody to that county's Department of Job and Family Services. Parents attempted a surrender to a private adoption agency in Greene County. Agency fails in habeas action attempting to wrest custody from Clark County. Parents cannot surrender custody a child they no longer have legal custody of.
State v. Shedrick
(1991), 61 Ohio St. 3d 331 -- Syllabus: "(1) Under
, testimony, documents, or exhibits, presented as evidence against a juvenile in a juvenile proceeding, are inadmissible in any other criminal case or criminal proceeding except ones in which the same underlying alleged crime is being adjudicated. (
, construed.) (2) Where a witness has testified in a juvenile proceeding,
prohibits that witness from giving essentially the same testimony in any other criminal case or criminal proceeding. (
State v. Shedrick
(1991), 59 Ohio St. 3d 146...vacated and clarified.)" Same case on remand:
State v. Shedrick
(1992), 80 Ohio App. 3d 823 (admission found to be harmless error). Also see
State v. Bayless
(1976), 48 Ohio St. 2d 73, paragraph four of the syllabus;
State v. Noggle
(1993), 67 Ohio St. 3d 31 -- Syllabus: " (1) The phrase 'person in loco parentis' in
applies to a person who has assumed the dominant parental role and is relied upon by the child for support. (2) Indictments based upon an alleged offender's status as a person in loco parentis should at least state the very basic facts upon which that alleged status is based."
In re Dobbelaer
(1993), 63 Ohio Misc. 2d 303 -- There being no indication that an intent to steal had been formed before a 13 year old girl went through the unlocked door of a friend's house and stole a pack of cigarettes, and in the interest of justice, court amends aggravated burglary complaint to charge criminal trespass and petty theft.
In re Washington
(1996), 75 Ohio St. 3d 390 -- Syllabus: "A child under the age of fourteen is presumed capable of committing rape.
Williams v. State
, 14 Ohio 222, and
Hiltabiddle v. State
, 35 Ohio St. 52, overruled." Body of opinion states that Ohio is not among those states where there is a rebuttable presumption that a child under fourteen is incapable of committing the crime of rape. Dissent states focus should have been upon eight year old defendant's ability to form intent.
In re M.D.
(1988), 38 Ohio St. 3d 149 -- It is against public policy for a twelve year old to be prosecuted for complicity to commit rape for "playing doctor." Such prosecution is a violation of due process.
In re Frederick
(1993), 63 Ohio Misc. 2d 229 -- The rape statute does not reach consensual intercourse between a boy who has just turned fourteen and a girl aged twelve years, five months. Compare
In re Hamrick
(September 29, 1988), Franklin Co. App. No. 87AP-1154, unreported (1988 Opinions 3599) reaching the opposite conclusion where a fifteen year old boy and an eleven year old girl engaged in consensual sex.
In re Lomeli
(1995), 106 Ohio App. 3d 242 -- A juvenile may be charged with contributing to the unruliness of a minor.
In re Smith
(1992), 80 Ohio App. 3d 502 -- In an appeal by the prosecutor, held that the juvenile court could properly dismiss a rape charge against a ten year old without a preliminary hearing, on the basis that proceeding on the complaint would not be appropriate.
State v. Clark
(1993), 84 Ohio App. 3d 789 -- Age is determined by the date of birth and not by looking to the hour of birth.
State v. Wilson
(1995), 73 Ohio St. 3d 40 -- Seventeen-year old was prosecuted as an adult and twelve years later moved to have his conviction vacated. Motion should have been granted. Syllabus: "(1) Absent a proper bindover procedure pursuant to
, the juvenile court has the exclusive subject matter jurisdiction over any case concerning a child who is alleged to be a delinquent. (
, applied.) (2) The exclusive subject matter jurisdiction of the juvenile court cannot be waived."
In re J.B.
(1995), 71 Ohio Misc. 2d 63 -- Delinquency complaint was filed when defendant was 16, but he was not brought to trial until after he was 21. Juvenile court retained jurisdiction, though sentencing options were limited. Once past age 21 he could not be committed to D.Y.S.
State v. Homer
(1992), 78 Ohio App. 3d 477 -- Defendant who stole a snowmobile while a juvenile, and retained possession past his eighteenth birthday, could be prosecuted for RSP as an adult.
In re Adoption of Spino
(February 21, 1995), Franklin Co. App. No. 94APF07-1101 -- Child was adopted by stepfather at age 12 in 1970. If she was ever entitled to petition the court to set aside the decree of adoption, time for filing began to run in 1976 when she turned 18. Instead, a Civ.R. 60(B) motion for relief from judgment was filed in 1994. No abuse of discretion in overruling motion, even though natural and adoptive parents consented to having the adoption vacated.
State v. Robinson
(1994), 98 Ohio App. 3d 560, 566-570 -- Gang member's juvenile record was brought out during cross-examination after he asserted he was among three of thirty members without a record. While a juvenile record may not be used to impeach credibility by itself, it may be used otherwise, such as here to impeach claims relating to the defendant's character.
In re Spagnoletti
(1997), 122 Ohio App. 3d 3 683 -- Municipal curfew ordinance held to be overly broad and unconstitutional through application of the rational relationship test. Court thus avoids need to determine whether freedom of movement id a fundamental right of a minor.
Marich v. Knox County Dept. of Human Services
(1989), 45 Ohio St. 3d 163 -- Syllabus: "When a public agency subjects a natural parent, who is a minor, to undue influence, and as a result of that undue influence, the parent signs an agreement permanently surrendering her child, the parent's consent to the agreement is null and void and the custody of the child remains with the parent." Actual custody may be regained through habeas corpus.
In re Hua
(1980), 62 Ohio St. 2d 227 -- Paragraph two of the syllabus: "In a habeas corpus action filed by a natural parent who seeks the return of her child from a third party, it is error for the court to issue the writ of habeas corpus without first conducting an inquiry into the suitability of the natural parent."
In re Guardianship of Harrison
(1989), 60 Ohio App. 3d 19 -- Once probate court guardianship of child terminated, custody determination was within the exclusive jurisdiction of the juvenile court.
Ohio v. Akron Center for Reproductive Health
(1990), 497 U.S. 502 -- Ohio's parental notification of abortion stature upheld. Also see
In re Doe
(1990), 57 Ohio Misc. 2d 20.
In re Jane Doe 1
(1991), 57 Ohio St. 3d 135 -- Syllabus: "Absent an abuse of discretion by the juvenile court, the dismissal of a complaint brought by an unemancipated pregnant minor seeking authorization to have an abortion pursuant to
shall not be disturbed."
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
Contents may not be duplicated without express permission.