text:
    STATE of Ohio, Plaintiff-Appellee v. Mark A. RICER, Defendant-Appellant
    No. 17-COA-023
    Court of Appeals of Ohio, Fifth District, Ashland County.
    DATE OF JUDGMENT ENTRY: February 1, 2018
    ANDREW N. BUSH, Assistant Law Director, 1213 E. Main Street, Ashland, OH 44805, For Plaintiff-Appellee
    JOSEPH KEARNS, JR., Mason, Mason & Kearns, 153 West Main Street, Ashland, OH 44805, For Defendant-Appellant
    JUDGES: Hon. John W. Wise, P.J., Hon. W. Scott Gwin, J., Hon. William B. Hoffman, J.
   Gwin, J.,

{¶ 1} Appellant Mark A. Ricer ["Ricer"] appeals his convictions and sentences after a jury trial in the Ashland Municipal Court.

Facts and Procedural History

{¶ 2} Sometime between 1:30 a.m. and 2:00 a.m. on March 4, 2017, officers from the Ashland City Police Department did a walk-thru at a local bar called the Wagon Wheel. Ricer was seen sleeping at a table by himself, with a few pizza boxes in front of him and several beer cans by his head. The officers noticed that a vehicle registered to Ricer was parked illegally on the street outside of the bar. The officers did not ticket the vehicle.

{¶ 3} Later in the evening and after the last walk-through Officer Kunzen radioed to Officer Schwan that Ricer was leaving the bar and driving away in his truck. Officers Schwan and Eggeman drove to the area in the same patrol car. The officers saw no traffic infractions by Ricer as they followed him on Third Street. The officers observed Ricer make a "very slow, methodical, fluid" turn onto Cottage Street. The officers observed Ricer's truck travel left of center. (T. at 22). The driver's side tire traveled completely over the centerline near Fourth Street. (Id.). Ricer made another slow, methodical, fluid turn left onto Ohio. In making that turn, the officers saw Ricer almost strike the curb, but jerked the wheel back. Officer Schwan turned on his overhead lights on Ohio Street; however, Ricer continued driving turning right onto to Arch Street. Because Ricer continued to drive, Officer Schwan sounded his siren. Ricer continued to drive a short distance before stopping.

{¶ 4} During their interaction with Ricer at his vehicle, the officers noted an odor of alcoholic beverage, slightly slurred speech, and glassy, watery eyes. Ricer did admit to drinking a couple of beers at the Wagon Wheel bar that night.

{¶ 5} Ricer was asked out of the vehicle to perform field sobriety tests. Ricer was given the Horizontal Gaze Nystagmus Test. (T. 31). Ricer told the officer that he had cataract surgery and had lenses in his eyes. The officer observed six clues of a possible six clues. Ricer was then asked to recite the alphabet without singing the song beginning with the letter "D" and ending with the letter "N." Ricer had a difficult time. Ricer was offered the Walk and Turn test, but said he could not do the test because his foot or leg had been broken a few years prior (T. 39). Ricer offered to show the officers the black and blue marks on his leg; however, the officer told Ricer they would take his word for it.

{¶ 6} During the stop, Ricer became slightly argumentative with the officers. (T. at 41). Ricer indicated that he wanted to take a portable breathalyzer test. The officer indicted that he had such a device but did not offer it to Ricer. Ricer later volunteered without being asked that he would not take a breathalyzer test. (T. at 41). Ricer was placed under arrest for Operating a Vehicle while under the Influence of Alcohol [OVI] in violation of R.C. 4511.19(A)(1)(a), and Driving Left of Center under Ashland City Ordinance 331.05. At the police station, Ricer was read the BMV 2255 form and refused to submit to the breath test. Ricer was charged under R.C. 4511.19(A)(2)(b), which prohibits individuals, after being arrested for operating a vehicle while under the influence from refusing to submit to a chemical blood-alcohol test if they have been convicted of an OVI offense within the previous 20 years.

{¶ 7} Ricer did not file a motion to suppress challenging the validity of the stop, his arrest or the administration of the field sobriety tests.

{¶ 8} A jury trial commenced on June 8, 2017. The parties stipulated that the Ricer had been previously convicted of a prior OVI on July 21, 2000. A video of the traffic stop and the officers' interaction with Ricer was played for the jury and admitted into evidence as State's Exhibit 2. At the conclusion of the trial, Ricer was found guilty of OVI. The judge found Ricer guilty of the Left of Center charge. The court sentenced Ricer to 180 days incarceration, with 90 suspended, 3-year license suspension, and a $525.00 fine, plus costs on the OVI conviction.

Assignments of error

{¶ 9} Ricer raises one assignment of error,

{¶ 10} "I. THE CONVICTION OF THE APPELLANT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

Law and Analysis

{¶ 11} Ricer's sole assignment of error challenges the manifest weight of the evidence that was presented at trial and which resulted in a jury's verdict of guilty of OVI . He argues that he only showed minor indicia of impairment. He further argues that the officer failed to properly administer the one test that was given, the Horizontal Gaze Nystagmus test.

STANDARD OF APPELLATE REVIEW.

{¶ 12} When an appellate court considers a claim that a conviction is against the manifest weight of the evidence, the court must dutifully examine the entire record, weigh the evidence, and consider the credibility of witnesses. State v. Thompkins , 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated by State v. Smith , 80 Ohio St.3d 89, 684 N.E.2d 668, 1997-Ohio-355. The reviewing court must bear in mind, however, that credibility generally is an issue for the trier of fact to resolve. State v. Issa , 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001) ; State v. Murphy , 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, 2008 WL 1061793, ¶ 31. Because the trier of fact sees and hears the witnesses and is particularly competent to decide whether, and to what extent, to credit the testimony of particular witnesses, the appellate court must afford substantial deference to its determinations of credibility. Barberton v. Jenney , 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20.

"[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts. * * *
"If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment."

Seasons Coal Co., Inc. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review , Section 60, at 191-192 (1978). Thus, an appellate court will leave the issues of weight and credibility of the evidence to the fact finder, as long as a rational basis exists in the record for its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio-1282, 2012 WL 1029466, ¶ 24.

{¶ 13} Once the reviewing court finishes its examination, an appellate court may not merely substitute its view for that of the jury, but must find that " 'the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " State v. Thompkins, supra, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720-721( 1st Dist. 1983). Accordingly, reversal on manifest weight grounds is reserved for "the exceptional case in which the evidence weighs heavily against the conviction." Id.

ISSUE FOR APPEAL

A. Whether the jury court clearly lost their way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

1. Sufficiency of the Evidence.

{¶ 14} Ricer was convicted of a violation of R.C. 4511.19, which states in pertinent part: "(A)(1) No person shall operate any vehicle, * * *, if, at the time of the operation, any of the following apply: (a) The person is under the influence of alcohol, a drug of abuse, or a combination of them."

{¶ 15} In State v. Ahmed , this Court observed,

"[B]eing 'under the influence of alcohol or intoxicating liquor' means that the accused must have consumed some intoxicating beverage, whether mild or potent, and in such quantity, whether small or great, that the effect thereof on him was to adversely affect his actions, reactions, conduct, movements or mental processes, or to impair his reactions, under the circumstances then existing so as to deprive him of that clearness of the intellect and control of himself which he would otherwise possess"). See, State v. Henderson, 5th Dist. No. 2004-CA-00215, 2005-Ohio-1644 at, [2005 WL 774039] ¶ 32. [Citing State v. Barrett (Feb. 26, 2001), Licking App. No. 00CA47 [2001 WL 194782] ].

5th Dist. Stark No. 2007-CA-00049, 2008-Ohio-389, 2008 WL 307711, ¶ 26. In the case at bar, the evidence produced at trial supports the inference that Ricer's consumption of alcohol on the night in question adversely affected his actions, reactions, conduct, movement or mental processes or impaired his reactions to an appreciable degree, thereby lessening his ability to operate his car on the night in question.

a). Admissibility of Field Sobriety Tests at trial.

{¶ 16} In State v. Boczar , 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, the Court held, "... HGN test results are admissible in Ohio without expert testimony so long as the proper foundation has been shown both as to the administering officer's training and ability to administer the test and as to the actual technique used by the officer in administering the test." Id. at ¶ 27. In accordance with R.C. 4511.19(D)(4)(b) HGN test results are admissible when the test is administered in substantial compliance with testing standards. Boczar , at ¶ 28.

{¶ 17} The timing required to complete the various elements with respect to both eyes of the HGN test as set forth in the NHTSA manual are approximate. State v. Lominack, III, 5th Dist. Stark No. 2012CA00213, 2013-Ohio-2678, 2013 WL 3280034, ¶ 31. Further, the standard for admissibility is substantial not strict compliance. Id.

{¶ 18} We note in the case at bar Ricer was reported to exhibit six clues.

{¶ 19} This Court must afford the decision of the trier of fact concerning credibility issues the appropriate deference. We will not substitute our judgment for that of the trier of fact on the issue of witness credibility unless it is patently clear that the fact finder lost its way. State v. Parks , 3rd Dist. No. 15-03-16, 2004-Ohio-4023, 2004 WL 1718169, at ¶ 13, citing State v. Twitty , 2nd Dist. No. 18749, 2002-Ohio-5595, 2002 WL 31341561, ¶ 114 ; State v. Ahmed, 5th Dist. No. 2007-CA-00049, 2008-Ohio-389, 2008 WL 307711, ¶ 28. Looking at all of the evidence before us, we cannot say that that had the HGN test results not been introduced, the outcome of his trial would have been different. Having reviewed the record that Ricer cites in support of his claim that the error was prejudicial, we find Ricer was not prejudiced by the admission of the HGN test results.

{¶ 20} Further, the Ohio Supreme Court has made clear that the officer may testify regarding observations made during a defendant's performance of standardized field sobriety tests even absent proof of "strict compliance." State v. Schmitt , 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446, (2004), ¶ 15. This distinction has been defined as follows,

The "results" of an HGN test include an officer's opinion about whether a person "passed" or "failed" the test, the number of clues a person demonstrated on an HGN test, and, based upon the number of clues demonstrated during the HGN test, the statistical likelihood the person was under the influence of alcohol and had a BAC level over the legal limit. Bresson [51 Ohio St.3d 123] at 126-29 [554 N.E.2d 1330] ; Kennedy [5th Dist. No. 2008 AP 04 0026, 2009-Ohio-1398, 2009 WL 795209] at ¶ 27. In contrast, an officer's observation that a defendant was unable to focus steadily on the stimulus during the HGN test or swayed during a field sobriety test is the type of physiological factor about which an officer may testify even if the test was not administered in substantial compliance with the testing standards. Wickliffe v. Kirara , 11th Dist. No. 2006-L-172, 2007-Ohio-2304, [2007 WL 1395350], ¶ 19 ; State v. Koteff , 5th Dist. No. 04-COA-035, 2005-Ohio-1719, [2005 WL 845208], ¶ 5, 18. Thus, an officer's observation that the defendant could not hold himself steady, lost his balance, stumbled or staggered when he walked, stepped off the line, could not follow simple directions, or used his arms for balance, is admissible as lay evidence of intoxication even if the final results of the field sobriety tests are inadmissible at trial due to a lack of substantial compliance with accepted testing standards. Schmitt [101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446 ] at syllabus; State v. Johnson , 7th Dist. No. 05 CO 67, 2007-Ohio-602 [2007 WL 446024], ¶ 25 ; State v. Green , 8th Dist. No. 88234, 2007-Ohio-1713 [2007 WL 1084128], ¶ 53 ; Cleveland v. Hunter, 8th Dist. No. 91110, 2009-Ohio-1239 [2009 WL 712498], ¶ 62-63 ; State v. Lothes , 11th Dist. No. 2006-P-0086, 2007-Ohio-4226 [2007 WL 2350997], ¶ 59 ; State v. Hammons , 12th Dist. No. CA2004-01-008, 2005-Ohio-1409 [2005 WL 694582], ¶ 5. Admission of such evidence regarding the HGN test is no different from other nonscientific field sobriety tests. Boczar [113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155] at ¶ 25-27.
Here, because Officer Kirby did not conduct the HGN test in substantial compliance with accepted testing standards, the trial court properly suppressed evidence regarding the results of the HGN test and evidence regarding the technical or scientific basis for the test. Nonetheless, because an officer's observations are admissible as lay testimony to help the fact finder determine whether defendant was driving while intoxicated, Schmitt at ¶ 14, the trial court also properly ruled testimony to be admissible at trial concerning Officer Kirby's observations of defendant during the HGN test, including whether defendant swayed, had trouble staying focused, failed to follow instructions, or was uncooperative. Schmitt; Boczar ; Wickliffe ; Koteff; Johnson .

Columbus v. Bickis, 10th Dist. Franklin No. 09AP-898, 2010-Ohio-3208, 2010 WL 2706257, ¶ 16-17. See also, State v. Reaver, 5th Dist. Muskingum No. CT2016-0054, 2017-Ohio-4149, 2017 WL 2442977, ¶ 20.

{¶ 21} In the case at bar, Ricer's conviction for OVI was supported by the officer's observation of glassy eyes, odor of alcohol, slurred speech, admission that he had been drinking, and traffic violation. The jury also viewed a video that showed in real time the officers' interaction with Ricer.

{¶ 22} Viewing this evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that Ricer's consumption of alcohol on the night in question adversely affected his actions, reactions, conduct, movement or mental processes or impaired his reactions to an appreciable degree, thereby lessening his ability to operate his car on the night in question. We hold therefore that the state met its burden of production regarding OVI and, accordingly, there was sufficient evidence to support Ricer's conviction.

2. Manifest weight of the evidence .

{¶ 23} The Ohio Supreme Court has emphasized: " '[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts. * * *.' " Eastley v. Volkman , 132 Ohio St.3d 328, 334, 972 N.E.2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review , Section 603, at 191-192 (1978). Furthermore, it is well established that the trial court is in the best position to determine the credibility of witnesses. See, e.g., In re Brown , 9th Dist. No. 21004, 2002-Ohio-3405, 2002 WL 1454025, ¶ 9, citing State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212( 1967).

{¶ 24} In conducting a manifest weight of the evidence review, we may consider the credibility of the witnesses. State v. Cattledge , 10th Dist. No. 10AP-105, 2010-Ohio-4953, 2010 WL 3972574, ¶ 6. However, in conducting that review, we note that ultimately, "the reviewing court must determine whether the appellant or the appellee provided the more believable evidence, but must not completely substitute its judgment for that of the original trier of fact 'unless it is patently apparent that the fact finder lost its way.' " State v. Pallai , 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635, 2008 WL 5245576, ¶ 31, quoting State v. Woullard , 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964 (2nd Dist. 2004), ¶ 81. "Mere disagreement over the credibility of witnesses is not a sufficient reason to reverse a judgment on manifest weight grounds." State v. Harris , 10th Dist. No. 13AP-770, 2014-Ohio-2501, 2014 WL 2583023, 25, discretionary appeal not allowed , 140 Ohio St.3d 1455, 2014-Ohio-4414, 17 N.E.3d 600, citing State v. G.G. , 10th Dist. No. 12AP-188, 2012-Ohio-5902, 2012 WL 6483635, ¶ 7. In other words, "[w]hen there exist two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, it is not our province to choose which one we believe." State v. Dyke , 7th Dist. Mahoning No. 99 CA 149, 2002-Ohio-1152, 2002 WL 407847, at ¶ 13, citing State v. Gore , 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist. 1999).

{¶ 25} The jury as the trier of fact was free to accept or reject any and all of the evidence offered by the parties and assess the witness's credibility. "While the trier of fact may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant's conviction against the manifest weight or sufficiency of the evidence." State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL 29752 (Mar 23, 2000)citing State v. Nivens , 10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness' testimony, but may accept only portions of it as true. State v. Raver , 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, 2003 WL 723225, ¶ 21, citing State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964) ; State v. Burke , 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, 2003 WL 21291042, citing State v. Caldwell , 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have been circumstantial, we note that circumstantial evidence has the same probative value as direct evidence. State v. Jenks , 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional amendment on other grounds as stated in State v. Smith , 80 Ohio St.3d 89, 102 at n.4, 684 N.E.2d 668 (1997).

{¶ 26} In the case at bar, the jury heard the witnesses, viewed the evidence and heard Ricer's attorney's arguments and explanations about Ricer and the officers' actions. The jury also viewed a video that showed in real time the officers' interaction with Ricer.

{¶ 27} We find that this is not an " 'exceptional case in which the evidence weighs heavily against the conviction.' " State v. Thompkins , 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), quoting Martin , 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost his way nor created a miscarriage of justice in convicting Ricer of OVI.

{¶ 28} Based upon the foregoing and the entire record in this matter we find Ricer's conviction is not against the sufficiency or the manifest weight of the evidence. To the contrary, the jury appears to have fairly and impartially decided the matters before them. The jury heard the witnesses, evaluated the evidence, and was convinced of Ricers guilt.

{¶ 29} Finally, upon careful consideration of the record in its entirety, we find that there is substantial evidence presented which if believed, proves all the elements of the crime for which Ricer was convicted.

CONCLUSION.

{¶ 30} Ricer's sole assignment of error is overruled.

{¶ 31} The judgment of the Ashland County Municipal Court is affirmed.

Wise, P.J., and Hoffman, J., concur

      Ricer does not challenge his conviction for Driving Left of Center in this appeal. Nor does he challenge his conviction under the look-back provision under R.C. 4511.19(A)(2)(b), having stipulated to his prior refusal. [Appellant Brief at 3].


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Robert BRADEN, Defendant-Appellant.
    NO. C-170097
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: February 14, 2018
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee.
    Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann, Assistant Public Defender, for Defendant-Appellant.
   Miller, Judge.

{¶ 1} Following a bench trial, defendant-appellant Robert Braden was found guilty of burglary, a second-degree felony, in violation of R.C. 2911.12(A)(2), and sentenced to a six-year prison term. In his first assignment of error, Braden claims that his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. For the following reasons, we reverse Braden's conviction and hold that he is guilty of the lesser-included offense of third-degree burglary, in violation of R.C. 2911.12(A)(3), to which he stipulated.

I. The Burglary

{¶ 2} Bruce Hust lived alone in a house in the West Price Hill neighborhood of Cincinnati. He was an employee of the Hamilton County Juvenile Court. His work hours were approximately 8:00 a.m. to 4:00 p.m., Monday through Friday. On the morning of August 27, 2015, Hust left for work and returned home at 5:00 p.m. Hust found his house ransacked, and his late mother's wedding rings missing. Hust called the police. Meanwhile, a nearby pawn shop where Robert Braden, the grandson of Hust's neighbor, pawned the wedding rings that same day, alerted police.

{¶ 3} Braden was initially charged with, and pled guilty to, receiving stolen property in violation of R.C. 2913.51. He was sentenced to six months in jail. That conviction is not the subject of this appeal.

{¶ 4} Sometime later, a piece of discarded candy found in Hust's home was DNA-tested, and the DNA matched Braden's. Braden was then charged with, and convicted of, burglary, and sentenced to six years in prison. He now appeals his burglary conviction and brings the following four assignments of error for our review:

1. The Trial Court Erred in Finding Defendant-Appellant Guilty, as the Finding Was Based on Insufficient Evidence and Was Contrary to Law.
2. The Trial Court Erred in Overruling the Defendant-Appellant's Motion to Dismiss.
3. The [Defendant-]Appellant was Deprived of His Right to the Effective Assistance of Counsel at Trial.
4. The Trial Court Erred in Failing to Credit [Defendant-Appellant's] Burglary Sentence with His Incarceration for Receiving Stolen Property.

II. Sufficiency of the Evidence

{¶ 5} In his first assignment of error, Braden argues that his burglary conviction was not supported by sufficient evidence and was against the manifest weight of the evidence; however, the substance of his argument attacks only the sufficiency of the evidence. A conviction is supported by sufficient evidence when, after viewing all evidence in the light most favorable to the prosecution, a rational trier of fact could have found all of the elements of the offense proven beyond a reasonable doubt. State v. Grice , 180 Ohio App.3d 700, 2009-Ohio-372, 906 N.E.2d 1203 (1st Dist.).

{¶ 6} Braden was convicted of burglary under R.C. 2911.12(A)(2), which provides that no person, by force, shall "[t]respass in an occupied structure * * * that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense."

{¶ 7} At trial, Braden stipulated on the record to trespassing in Hust's home with the intent to steal jewelry that belonged to Hust, which he also stipulated is third-degree burglary in violation of R.C. 2911.12(A)(3). The only issue Braden contested at trial was whether another person was likely to be present-the element which converts the crime to second-degree burglary, in violation of R.C. 2911.12(A)(2).

{¶ 8} "Likely to be Present" does not Mean "Could Be Present." It is undisputed that no one other than Braden was in Hust's home at the time of the break-in. Therefore, to sustain a conviction under R.C. 2911.12(A)(2), the state had to prove that someone was "likely to be present." "The issue is not whether the burglar subjectively believed that persons were likely to be there, but whether it was objectively likely." State v. Cravens , 1st Dist. Hamilton No. C-980526, 1999 WL 567098, *1 (June 25, 1999). This court has held that "objectively likely to be present" means the "probability or improbability of actual occupancy which in fact exists at the time of the offense, determined by all the facts surrounding the occupancy." In re Meatchem , 1st Dist. Hamilton No. C-050291, 2006-Ohio-4128, 2006 WL 2320787, ¶ 16. "That is, there must be a greater than 50% likelihood that someone will be in the dwelling at the time of the burglary." Id. at ¶ 17.

{¶ 9} Unfortunately, the case law has become convoluted by an implication that "likely" might mean "could" in the oft-cited case of State v. Green , 18 Ohio App.3d 69, 480 N.E.2d 1128 (10th Dist.1984), in which the Tenth District upheld a burglary conviction where a person moving out of a house was found likely to be present. See, e.g., State v. Kottner , 1st Dist. Hamilton No. C-120350, 2013-Ohio-2159, 2013 WL 2325622. The Tenth District said that "[a] person is likely to be present when a consideration of all the circumstances would seem to justify a logical expectation that a person could be present." (Emphasis added.) Green at 72, 480 N.E.2d 1128.

{¶ 10} In Green , the homeowner was in and out on a daily basis repairing, cleaning, and moving personal property, and therefore the inference could be drawn regarding the likelihood of the victim being present at the time of the burglary. But Green doesn't hold that "likely" for purposes of R.C. 2911.12(A)(2) means "could," "might," "may," "possibly," or anything less than a 50 percent chance. "[T]he term 'likely' connotes something more than a mere possibility, it also connotes something less than a probability or reasonable certainty." Green at 72, 480 N.E.2d 1128.

{¶ 11} Ohio courts have decided a number of cases describing the type of evidence that the state can offer to establish the "likely to be present" element. See, e.g., State v. Kilby , 50 Ohio St.2d 21, 361 N.E.2d 1336 (1977) (likely to be present element satisfied where home's occupants were across the street at a neighbor's house); State v. Weber , 10th Dist. Franklin No. 97APA03-322, 1997 WL 798299 (Dec. 23, 1997) (likely to be present element satisfied where home owners were away on vacation, but others had permission to be in the house and neighbor was watching property while owners were absent); State v. Beverly , 2d Dist. Clark No. 2005 CA 85, 2007-Ohio-1028, 2007 WL 706806 (likely to be present element satisfied where occupants were away from the house for about one and a half hours during the evening); State v. Young , 8th Dist. Cuyahoga No. 87613, 2006-Ohio-5723, 2006 WL 3095685 (likely to be present element satisfied where evidence showed that occupants did not work on weekends, and burglary occurred on a Sunday); State v. Baker , 12th Dist. Butler No. CA2003-01-016, 2003-Ohio-5986, 2003 WL 22532913 (likely to be present element satisfied where occupant was a retiree with no fixed schedule); State v. Palmer , 8th Dist. Cuyahoga No. 89957, 2008-Ohio-2937, 2008 WL 2424455 (likely to be present element satisfied where evidence established burglary occurred close to the time occupants would have left for work).

{¶ 12} Critically, where the occupants of a house are almost always absent as part of their fixed work schedule, they are not likely to be present during their regular working hours. See, e.g., State v. Frock , 2d Dist. Clark No. 2004 CA 76, 2006-Ohio-1254, 2006 WL 677715 (likely to be present element not satisfied where occupant regularly came home from work to walk her dog around 2 p.m., and burglary occurred between 1:00 p.m. and 1:30 p.m.); State v. Brown , 1st Dist. Hamilton No. C-980907, 2000 WL 492054 (Apr. 28, 2000) (likely to be present element not satisfied where burglary occurred during the occupant's workday, and no evidence was offered that the occupant ever came home during his workday); State v. Lockhart , 115 Ohio App.3d 370, 685 N.E.2d 564 (8th Dist.1996) (likely to be present element not satisfied where home's occupant testified that burglary occurred while she was at work, and that she did not return to her house at varying times).

{¶ 13} No Proof that Anyone was "Likely to be Present." In this case, the only testimony on the issue of whether anyone was likely to be present at the Hust home came from Bruce Hust. He testified that he went to work on the day of the break-in, consistent with his normal routine. He stated that he usually arrived home between 4:15 and 4:30 p.m., consistent with his 15-to-20 minute commute to and from work. He testified that on July 22, 2015, about a month prior to the break-in, he had used a sick day to stay home to recover from a cold. He testified that there were times he left work early or went home if he had another commitment, but there was no testimony that these occasions were regular occurrences, or that he had a commitment to be home on the day of the burglary. Hust also testified that he had an occasional housekeeper prior to the incident, with no set schedule of when to come, but she would come when he arranged it. There was no testimony that he had arranged for his housekeeper to come on any day near the burglary. No one else was regularly inside the home while Hust was at work. Based on this record, there is insufficient evidence, as a matter of law, of anyone being likely to be present at the time to sustain Braden's conviction for burglary under R.C. 2911.12(A)(2). Therefore, Braden's first assignment of error is sustained.

III. Braden is Guilty of Third-Degree Burglary

{¶ 14} As noted above, Braden stipulated on the record to trespassing into Hust's home with the intent to steal Hust's belongings, which he also stipulated was a violation of R.C. 2911.12(A)(3). Based on this stipulation, we reverse Braden's conviction for violating R.C. 2911.12(A)(2) and remand this case to the trial court with instructions to enter a judgment finding Braden guilty of violating R.C. 2911.12(A)(3) and to sentence Braden for that offense. See App.R. 12(B).

IV. Burglary and Receiving Stolen Property are Separate Crimes

{¶ 15} Braden's second, third, and fourth assignments of error will be addressed together because they all center on a contention that his receiving-stolen-property conviction limits the prosecution and punishment for the burglary offense. We disagree.

{¶ 16} In his second assignment of error, Braden argues that the trial court erred in overruling his motion to dismiss the burglary charge as barred by collateral estoppel, a doctrine incorporated by the Double Jeopardy Clause. The Double Jeopardy Clause bars successive prosecutions for the same event or act if the two offenses that arise from the event or act are ultimately considered the same offense on the basis of the comparison of the elements. Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). "[T]he test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not." Id. ; see State v. Thomas , 61 Ohio St.2d 254, 259, 400 N.E.2d 897 (1980), overruled on other grounds, State v. Crago , 53 Ohio St.3d 243, 559 N.E.2d 1353 (1990). "A single act may be an offense against two statutes, and if each statute requires proof of an additional fact * * *, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." (Citations omitted.) State v. Nelson , 51 Ohio App.2d 31, 39, 365 N.E.2d 1268 (8th Dist.1977).

{¶ 17} Applying the foregoing test, it is apparent that the charge for burglary was not barred by Braden's conviction for receiving stolen property. The offenses, while involving the same property, do not constitute the same offense for purposes of double jeopardy since each offense requires proof of an additional fact which the other does not. Braden pawned Hust's rings, disposing of property that he stole earlier the same day. Disposal is an element of receiving stolen property that is not addressed by burglary. And, Braden trespassed into Hust's house to take the rings. Trespass is an element of burglary that is not addressed by receiving stolen property. A number of Ohio courts have held likewise when comparing the elements of burglary to the elements of receiving stolen property, finding that the offenses do not correspond to such a degree that the commission of one crime will necessarily result in the commission of the other. See, e.g., State v. Thompson , 1st Dist. Hamilton No. C-130053, 2013-Ohio-2647, 2013 WL 3280215 (burglary and receiving stolen property); State v. Searles , 1st Dist. Hamilton No. C-870523, 1988 WL 83498 (Aug. 10, 1988) (aggravated burglary and receiving stolen property); State v. Clelland , 83 Ohio App.3d 474, 484, 615 N.E.2d 276 (4th Dist.1992) (burglary and receiving stolen property); State v. Nolan , 2d Dist. Montgomery No. 12094, 1991 WL 19367 (Feb. 13, 1991) (burglary and receiving stolen property). See also State v. Mitchell , 6 Ohio St.3d 416, 453 N.E.2d 593 (1983) (burglary and theft).

{¶ 18} Braden unconvincingly argues that implicit in the conviction for receiving stolen property is the finding that Braden did not steal the property. While we agree that "[t]he state cannot be permitted, on the one hand, to establish an ultimate fact in order to convict an accused in one case and then deny that fact in order to achieve a conviction against the accused in another case on charges arising out of the same set of facts," Hinton v. State , 36 Md.App. 52, 58, 373 A.2d 39 (1977), that is not what happened here. The receiving-stolen-property conviction did not require a finding that Braden did not commit the theft. The statute requires proof that the accused "received, retained, or disposed of property of another" obtained through a theft. As explained above, Braden disposed of Hust's property by pawning it. This was true regardless of how he obtained it. Therefore, we overrule Braden's second assignment of error.

{¶ 19} In his third assignment of error, Braden argues that he was deprived of the effective assistance of counsel at trial because the denial of his motion to dismiss was not immediately appealed. The defendant bears the burden to show ineffective assistance of counsel. State v. Hamblin , 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988) ; State v. Hackney , 1st Dist. Hamilton No. C-150375, 2016-Ohio-4609, 2016 WL 3541963, ¶ 36. "To sustain a claim for ineffective assistance of counsel, the defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense." State v. Wright , 2017-Ohio-1568, 90 N.E.3d 162, ¶ 55, citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Given our disposition of Braden's second assignment of error, he cannot demonstrate prejudice in his defense. Therefore, we overrule Braden's third assignment of error.

{¶ 20} In his fourth assignment of error, Braden argues that the trial court erred in not crediting him for the sentence he received for receiving stolen property, as the confinement was "arising out of" his burglary offense. Whether the trial court correctly determined that the receiving-stolen-property offense did not arise from the burglary offense is a question of law that is reviewed de novo. See, e.g., State v. Tolliver , 4th Dist. Athens No. 12CA36, 2013-Ohio-3861, 2013 WL 4792746, ¶ 12. While "[p]risoners must be given credit for the time they have been confined for reasons arising out of the offense for which they are convicted and sentenced," they are not entitled to credit for incarceration "that arises from facts separate from those upon which their current sentence is based." State v. Klein , 1st Dist. Hamilton Nos. C-040176 and C-040224, 2005-Ohio-1761, 2005 WL 856955, ¶ 26, citing State v. Logan , 71 Ohio App.3d 292, 300, 593 N.E.2d 395 (1991). Again, as discussed previously, we find that the offenses are separate and distinct. Thus, Braden is not entitled to credit on his burglary sentence for time he served on his sentence for receiving stolen property. We overrule Braden's fourth assignment of error.

Conclusion

{¶ 21} In sum, we sustain Braden's first assignment of error, overrule his second, third and fourth assignments of error, reverse his conviction for second-degree burglary under R.C. 2911.12(A)(2) and remand this cause with instructions to the trial court to enter a judgment finding Braden guilty of third-degree burglary under R.C. 2911.12(A)(3) and to sentence him for that offense.

Judgment reversed and cause remanded.

Cunningham, P.J., and Deters, J., concur.

      R.C. 2911.12(A)(3) states that "[n]o person, by force, stealth, or deception, shall * * * [t]respass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, with purpose to commit in the structure or separately secured or separately occupied portion of the structure any criminal offense."

      R.C. 2913.51(A) states that "[n]o person shall receive, retain, or dispose of property of another knowing or having reasonable cause to believe that the property has been obtained through commission of a theft offense."


author: HENSAL, Presiding Judge.

text:
    IN RE: D.J.
    No. 28472 28473
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: February 14, 2018
    CHARLYN BOHLAND, Assistant State Public Defender, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.
    DECISION AND JOURNAL ENTRY
   HENSAL, Presiding Judge.

{¶ 1} D.J. appeals judgments of the Summit County Court of Common Pleas, Juvenile Division, that invoked the adult portion of his serious youthful offender dispositional sentence and sentenced him to life imprisonment with the possibility of parole after 25 years. For the following reasons, this Court affirms.

I.

{¶ 2} When D.J. was 15, he anally raped his 3-year-old sister, which caused injuries that resulted in her death. The juvenile court adjudicated him guilty of rape and felony murder and designated him a serious youthful offender. It committed him to the Ohio Department of Youth Services (DYS) and stayed his adult sentence of life imprisonment with the possibility of parole after 25 years. D.J. appealed his adjudication. He also petitioned for post-conviction relief.

{¶ 3} D.J. behaved well during his commitment. He completed high school, took college classes, began an apprenticeship, and even helped tutor others. In light of his ongoing legal proceedings, however, he declined to enroll in sex offender treatment. Eventually, he voluntarily dismissed his appeal and withdrew his petition.

{¶ 4} Following the end of D.J.'s appeal and petition, the juvenile court wrote that his sex offender treatment would begin shortly. D.J. did not decide to enter the program, however, until nine months before he was going to turn 21. Despite attending and participating in the first part of the program, D.J. did not meet its goals because he could not identify the triggers for his conduct. He, therefore, could not continue into the second part of the program, which helps participants develop strategies to manage their triggers.

{¶ 5} Approximately 50 days before D.J.'s twenty-first birthday, the State moved for the juvenile court to invoke the adult portion of D.J.'s sentence. Following an evidentiary hearing, the juvenile court granted its motion, finding that D.J., by failing to complete sex offender treatment, engaged in conduct that poses a substantial risk to the safety of the community. The court also found that he could not be rehabilitated before turning 21. It subsequently imposed D.J.'s adult sentence of life imprisonment with the opportunity for parole after 25 years. D.J. has appealed, assigning five errors.

II.

ASSIGNMENT OF ERROR I

THE STATE CANNOT INITIATE THE REQUEST TO INVOKE THE ADULT PORTION OF A CHILD'S SYO WHEN THE CHILD IS IN DYS'S INSTITUTIONAL CUSTODY, IN VIOLATION OF R.C. 2152.14(A).

{¶ 6} D.J. argues that the State's motion to invoke was improper under Revised Code Section 2152.14(A). That section provides, in part, that "[t]he director of youth services may request the prosecuting attorney of the county in which is located the juvenile court that imposed a serious youthful offender dispositional sentence * * * to file a motion with that juvenile court to invoke the adult portion of the dispositional sentence * * *." According to D.J., under the statute, only the director of DYS can initiate the request to invoke the adult part of the dispositional sentence for a serious youthful offender. Here, however, the prosecutor sent a letter to DYS, requesting that it join in a motion to invoke. D.J. contends that DYS's staff was actually preparing him for release into the community until the prosecutor interfered in the process.

{¶ 7} Section 2152.14 does not provide any guidance for how the director of DYS should decide whether to request that the prosecuting attorney move for the juvenile court to invoke the adult part of a dispositional sentence. The statute's only requirements are that the juvenile be at least 14 years old, that the juvenile be in the custody of or has escaped custody of DYS, and that the juvenile be serving the juvenile part of a serious youthful offender dispositional sentence. R.C. 2152.14(A)(2). D.J. has not pointed to any language in Section 2152.14 that prohibits the prosecution from attempting to influence the director's exercise of discretion under Section 2152.14(A). D.J.'s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE JUVENILE COURT ERRED WHEN IT DETERMINED THAT D.J. ENGAGED IN CONDUCT THAT CREATES A SUBSTANTIAL RISK TO THE SAFETY AND SECURITY OF THE INSTITUTION, COMMUNITY, OR THE VICTIM IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; ARTICLE 1, SECTION 16, OHIO CONSTITUTION ; AND, R.C. 2152.14(E).

{¶ 8} D.J. next argues that there was insufficient evidence to support the juvenile court's findings under Section 2152.14(E)(1). That section provides:

The juvenile court may invoke the adult portion of a person's serious youthful offender dispositional sentence if the juvenile court finds all of the following on the record by clear and convincing evidence:
(a) The person is serving the juvenile portion of a serious youthful offender dispositional sentence.
(b) The person is at least fourteen years of age and has been admitted to a department of youth services facility, or criminal charges are pending against the person.
(c) The person engaged in the conduct or acts charged under division (A), (B), or (C) of this section, and the person's conduct demonstrates that the person is unlikely to be rehabilitated during the remaining period of juvenile jurisdiction.

R.C. 2152.14(E)(1). Clear and convincing evidence is that "which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. The conduct referred to in Section 2152.14(E)(1)(c) includes that "[t]he person has engaged in conduct that creates a substantial risk to the safety or security of the institution, the community, or the victim." R.C. 2152.14(A)(2)(b).

{¶ 9} The juvenile court found that D.J. had been defiant about his need to engage in sex offender treatment and that he had failed to complete such treatment. It also found that, following the exhaustion of his appeals, D.J. had 29 months to complete sex offender treatment, which typically takes between 9 and 18 months. The court found that D.J. delayed entering the program and inquired at one point about whether he could fake his treatment. It also found that, although D.J. eventually began the treatment program, he could not understand what he needed to do to prevent a relapse of his conduct. In conclusion, the court found that, "[a]bsent an understanding of his triggers, his cycle and what he needs to do to refrain from similar offenses, the Court finds that [D.J.] has engaged in conduct that poses a[ ] substantial risk to the safety of the community."

{¶ 10} The State presented testimony that D.J. was disengaged from his emotions. He resisted taking responsibility for harming his sister and failed to complete an appropriate victim apology letter, writing it to his parents instead of his sister. Although he could understand the offense cycle academically, he was unable to plug his own offense into the cycle to understand what triggered his offense. Specifically, he was unable to break down the series of events that led up to the offense, including the things that caused him to start thinking about doing it and the thinking errors that he made along the way. The State's witnesses testified that D.J.'s effort during sex offender treatment sessions was limited and that his participation was minimal. Because of his failure to master the first phase's skills and material, he could not progress into the second phase of the program where he would have developed a relapse prevention plan. The staff member who conducted D.J.'s class was concerned about D.J.'s ability to function in all aspects of his life back in the community without an understanding of his triggers and without a relapse prevention plan in place.

{¶ 11} The word "conduct" is not defined in Chapter 2152, but it commonly refers to someone's "[p]ersonal behavior, whether by action or inaction[.]" Black's Law Dictionary 315 (8th Ed.2004). D.J. intentionally waited until only 9 months before he turned 21 to begin sex offender treatment, which was too late for him to finish it in light of his minimal participation and emotional detachment from his offense. Upon review of the record, we conclude that there was sufficient evidence for the juvenile court to find by clear and convincing evidence that D.J., in failing to complete sex offender treatment, engaged in conduct that created a substantial risk to the safety of the community.

{¶ 12} D.J. also argues that the court's finding was against the manifest weight of the evidence. We apply the same manifest weight standard in both criminal and civil cases. When conducting a manifest weight review, we are required to "review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered." State v. Otten , 33 Ohio App.3d 339, 340, 515 N.E.2d 1009 (9th Dist.1986). Weight of the evidence pertains to the greater amount of credible evidence produced in a trial to support one side over the other side. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). An appellate court should only exercise its power to reverse a judgment as against the manifest weight of the evidence in exceptional cases. State v. Carson , 2013-Ohio-5785, 6 N.E.3d 649, ¶ 32, citing Otten at 340, 515 N.E.2d 1009.

{¶ 13} In addition to his sufficiency argument, D.J. argues that the juvenile court's findings were against the manifest weight of the evidence because he exhibited excellent behavior at DYS, DYS's staff was preparing for his release into the community, and there was no evidence that, without treatment, he presented a great risk of recidivism. We note that, even if most of DYS's staff, generally, was preparing D.J. for his release into the community, the instructor of D.J.'s sex offender treatment class testified that he was concerned about D.J.'s ability to function back in the community because he did not understand his triggers and did not have a relapse prevention plan in place. Upon careful review of the record, we conclude that the juvenile court's findings were not against the manifest weight of the evidence. D.J.'s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE MANDATORY SENTENCING SCHEME IN R.C. 2971.03 IS UNCONSTITUTIONAL BECAUSE IT DOES NOT PERMIT THE JUVENILE COURT TO MAKE AN INDIVIDUALIZED DETERMINATION ABOUT D.J.'S SENTENCE OR THE ATTRIBUTES OF HIS YOUTH, IN VIOLATION OF HIS RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AS GUARANTEED BY THE EIGHTH AMENDMENT TO THE U.S. CONSTITUTION; AND, ARTICLE I, SECTION 9, OHIO CONSTITUTION.

{¶ 14} D.J. next argues that his adult sentence violates his right to be free from cruel and unusual punishment because the juvenile court was not allowed to consider his age or other mitigating factors in determining his sentence. Because D.J. committed rape and murder, the juvenile court was required to impose an adult sentence of 25 years to life imprisonment. R.C. 2152.13(D)(1)(a) ; R.C. 2971.03(B)(1)(c).

{¶ 15} The State argues that D.J. forfeited his constitutional argument because he did not raise it at the time the trial court initially imposed his sentence. It points out that in In re Feaster , 9th Dist. Summit No. 25395, 2011-Ohio-4222, 2011 WL 4357226, this Court recognized that, when a juvenile court designates a serious youthful offender, it imposes an actual prison sentence, even though the sentence is stayed. Id. at ¶ 11-12. The State also argues that D.J.'s argument was available to him, noting that the United States and Ohio Supreme Court decisions that D.J. relies on pre-date his disposition as a serious youthful offender.

{¶ 16} D.J. argues that he should be permitted to raise his constitutionality argument because his adult prison sentence did not become a reality until the juvenile court imposed it in November 2016. He also notes that Section 2152.14(E)(2) authorizes a juvenile court to modify the adult portion of a person's serious youthful offender sentence at the time the court invokes it. He further notes that, in Feaster , this Court allowed Tyree Feaster to withdraw his plea agreement after the State moved to invoke the adult portion of his sentence because the juvenile court had not properly advised him of post-release control. Id. at ¶ 13.

{¶ 17} Under the "doctrine of res judicata, a valid final judgment on the merits bars all subsequent actions based on any claim arising out of the transaction or occurrence that was the subject matter of the previous action." State v. Hartman , 9th Dist. Medina No. 15CA0090-M, 2017-Ohio-1089, 2017 WL 1148609, ¶ 23, citing Grava v. Parkman Twp. , 73 Ohio St.3d 379, 382, 653 N.E.2d 226 (1995). "Res judicata applies to any issue that was raised or could have been raised in a criminal defendant's prior appeal from his conviction." Id. , citing State v. Perry , 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). "The doctrine serves to preclude a defendant who has had his day in court from seeking a second on that same issue. In so doing, res judicata promotes the principles of finality and judicial economy by preventing endless relitigation of an issue on which a defendant has already received a full and fair opportunity to be heard." Id. , quoting State v. Saxon , 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18.

{¶ 18} The juvenile court originally imposed D.J.'s adult sentence in 2013, but it stayed the sentence pending D.J.'s completion of his juvenile disposition. On appeal from that entry, D.J. could have argued that the adult sentence the court imposed was unconstitutional. His argument, therefore, is barred under the doctrine of res judicata. Section 2152.14(E)(2) only allows a juvenile court to modify an adult sentence if the sentence is not mandatory, but D.J.'s sentence was mandatory. Accordingly, it does not change this Court's res judicata analysis. Feaster also does not support D.J.'s argument because it involved whether Mr. Feaster could withdraw his plea after the State conceded that his sentence was void. Feaster at ¶ 3. D.J.'s third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.J. AS A TIER III JUVENILE OFFENDER REGISTRANT BECAUSE IT LACKED JURISDICTION TO ISSUE THE ORDER, IN VIOLATION OF 2151.14(F) AND IN RE J.B. , 134 OHIO ST.3D 538, 2012-OHIO-5675, 983 N.E.2D 1295, ¶ 1.

{¶ 19} D.J. next argues that the juvenile court did not have authority to classify him as a Tier III juvenile offender registrant because it did not classify him until after it invoked the adult portion of his serious youthful offender dispositional sentence. In support of his argument, D.J. cites State ex rel. Jean-Baptiste v. Kirsch , 134 Ohio St.3d 421, 2012-Ohio-5697, 983 N.E.2d 302.

{¶ 20} In Kirsch , the Ohio Supreme Court held that a juvenile court cannot classify a child as a juvenile offender registrant under Section 2152.83 after the child has been released from a secured facility, noting that the statute requires the classification happen "at the time of the child's release." Id. at ¶ 32, citing R.C. 2152.83(A)(1). Here, the juvenile court adjudicated D.J. as a Tier III sex offender in the same entry that ended D.J.'s commitment to DYS. We, therefore, conclude that the juvenile court's classification of D.J. was not error under Kirsch .

{¶ 21} D.J. also argues that the juvenile court lost jurisdiction to classify him as a juvenile offender registrant once it invoked the adult portion of his serious youthful offender dispositional sentence. There is no language in Section 2152.14, however, concerning juvenile offender registration and no language in Section 2152.83 that prohibits a juvenile court from classifying a child if the adult portion of the child's serious youthful offender disposition has been invoked. The juvenile court has jurisdiction "[t]o conduct the hearings, and to make the determinations, adjudications, and orders authorized or required under sections 2152.82 to 2152.86 and Chapter 2950. of the Revised Code regarding a child who has been adjudicated a delinquent child[.]" R.C. 2151.23(A)(15). D.J. was still a "child" at the time of the juvenile court's classification order because he was under 21 and had been adjudicated a delinquent child before turning 18. R.C. 2152.02(C)(1), (6). We, therefore, conclude that D.J. has not demonstrated that the juvenile court lacked jurisdiction to classify him as a Tier III juvenile offender registrant. D.J.'s fourth assignment of error is overruled.

ASSIGNMENT OF ERROR V

THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.J. AS AN ADULT TIER III SEX OFFENDER REGISTRANT, PURSUANT TO THE ADULT STATUTES, IN VIOLATION OF R.C. 2152.82 ; 2152.83; 2152.84; 2152.85; AND, 2950.01(G), (M).

{¶ 22} D.J.'s final argument is that the juvenile court incorrectly classified him as an adult sex offender registrant. He argues that those classifications do not apply to children, including those designated as a serious youthful offender. Specifically, D.J. argues that the adult registrant provisions only apply to those who have been convicted of an offense, and his adjudication as a delinquent child is not the same as a conviction.

{¶ 23} "[A] trial court speaks only through its journal entries." State v. Leason , 9th Dist. Summit No. 25566, 2011-Ohio-6591, 2011 WL 6740749, ¶ 8. In its entry, the juvenile court wrote that D.J. "has been convicted of a sexually-oriented offense" even though he, instead, had been adjudicated delinquent for committing rape and murder. The court went on, however, to order D.J. "to be adjudicated a Tier III Sex Offender * * *." The definition of a "Tier III sex offender * * *" includes "[a] sex offender who * * * has been adjudicated a delinquent child for committing any sexually oriented offense and who a juvenile court, pursuant to section 2152.82, 2152.83, 2152.84, or 2152.85 * * * classifies a tier III sex offender * * * relative to the offense." R.C. 2950.01(G)(3). Although the juvenile court used the word "adjudicate" in its entry instead of "classify," the difference between the two words in this context is not significant. In addition, D.J. has not identified any difference in the requirements placed on a Tier III sex offender who receives that designation automatically for being convicted of certain offenses as an adult and juveniles who receive that designation under Section 2950.01(G)(3). Accordingly, upon review of the juvenile court's entry, we conclude that any error in the court's word choice was harmless. D.J.'s fifth assignment of error is overruled.

III.

{¶ 24} D.J.'s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed.

CALLAHAN, J.

CONCURS.

CARR, J., CONCURRING IN JUDGMENT ONLY.

{¶ 25} The landscape regarding juvenile justice has changed dramatically in the last ten years. This case is an example of the difficulty in attempting to apply juvenile and adult rehabilitative statutes and theories when a child commits a serious offense. I encourage the Supreme Court and legislature to address these matters to provide necessary guidance to the juvenile courts.