author: FROELICH, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Sidney JACOBS, Defendant-Appellant
    No. 2017-CA-39
    Court of Appeals of Ohio, Second District, Clark County.
    Rendered February 23, 2018
    ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor's Office, Appellate Division, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45501, Attorney for Plaintiff-Appellee
    MARK BAMBERGER, Atty. Reg. No. 0082053, P.O. Box 189, Spring Valley, Ohio 45370, Attorney for Defendant-Appellant
   FROELICH, J.

{¶ 1} Sidney Jacobs appeals from a judgment of the Clark County Court of Common Pleas, which found him guilty on his guilty plea of trespass in a habitation when a person is present or likely to be present, in violation of R.C. 2911.12(B). The court sentenced him to five years of community control and ordered him to pay court costs; payment of restitution in the amount of $1,722 was one of the conditions of community control.

{¶ 2} For the following reasons, the judgment of the trial court will be affirmed in part and reversed in part, and the matter will be remanded for further consideration of the restitution order.

{¶ 3} On August 26, 2016, Jacobs was arguing with the victim's daughter outside the victim's home. Jacobs had dated the victim's daughter for about four years and had a child with her. During the course of this argument, Jacobs forced his way through the front door of the victim's home and struck the victim several times, causing injuries.

{¶ 4} On September 6, 2016, Jacobs was charged with trespass in a habitation when a person is present or likely to be present, a felony of the fourth degree, and assault, a misdemeanor of the first degree. On January 10, 2017, Jacobs reached a plea agreement with the State; Jacobs pled guilty to the felony trespass offense, in exchange for which the assault charge was dismissed. The parties' agreement did not include the nature or term of Jacobs's sentence or an amount of restitution, but Jacobs was informed that restitution could be imposed. After entering his plea, Jacobs filed an "Objection to Restitution," and a hearing was scheduled.

{¶ 5} A sentencing and restitution hearing was held on March 27, 2017. At the hearing, the State offered two medical bills for x-rays and medical expenses incurred when the victim visited a health clinic the day after the assault; the bills totaled $1,722. The victim also testified about those bills. He further testified that he had insurance through Premier Health "through [his] disability," and that he did not pay a co-pay for the visit to the clinic following the assault. The victim stated that he did not yet know how much of the medical bills his insurance company would pay, and he had not yet paid any portion of the medical bills himself. He was "not out any money" at the time of the hearing. In orally imposing its sentence, the trial court stated Jacobs must pay restitution in the amount of $1,722, "which can be reduced by any amount that is eventually paid by the Defendant's [sic] health insurance."

{¶ 6} The trial court filed its judgment entry on March 30, 2017. It sentenced Jacobs to five years of community control and ordered him to pay court costs; the trial court's judgment entry did not specifically reference restitution, but it did state that Jacobs would be required to "abide by the Clark County Adult Probation Department's Regulations of Probation, which are attached hereto and incorporated herein as if fully rewritten." The attached document listed numerous general conditions of community control, such as abiding by all laws and not leaving the State without written permission of his supervising officer; it also listed "specific community control sanction terms" tailored to Jacobs's circumstances. Among the specific terms was the requirement that Jacobs pay restitution "in the amount of $1722 which may be reduced by any amount paid by the victim's health insurance," and to be paid within 12 months of Jacobs's completion of "the program at West Central Community Correctional Facility," which was also a special term of his community control.

Restitution

{¶ 7} On appeal, Jacobs argues that the trial court erred in ordering him to pay restitution, because there was no competent, credible evidence in the record establishing the victim's actual economic loss.

{¶ 8} With respect to restitution, R.C. 2929.18(A) provides as follows:

Except as otherwise provided in this division and in addition to imposing court costs pursuant to section 2947.23 of the Revised Code, the court imposing a sentence upon an offender for a felony may sentence the offender to any financial sanction or combination of financial sanctions authorized under this section * * *. Financial sanctions that may be imposed pursuant to this section include, but are not limited to, the following:
(1) Restitution by the offender to the victim of the offender's crime * * * in an amount based on the victim's economic loss. * * * If the court imposes restitution, the court may base the amount of restitution it orders on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense. * * *

{¶ 9} An order of restitution must be supported by competent, credible evidence in the record. State v. Amburgey , 2d Dist. Greene No. 2010 CA 14, 2011-Ohio-748, 2011 WL 579182, ¶ 129, citing State v. Warner , 55 Ohio St.3d 31, 564 N.E.2d 18 (1990). "It is well settled that there must be a due process ascertainment that the amount of restitution bears some reasonable relationship to the loss suffered." Id. , citing State v. Williams, 34 Ohio App.3d 33, 34, 516 N.E.2d 1270 (2d Dist.1986). "Implicit in this principle is that the amount claimed must be established to a reasonable degree of certainty before restitution can be ordered." Id. , citing State v. Golar , 11th Dist. Lake No. 2002-L-092, 2003-Ohio-5861, 2003 WL 22470868. The amount of restitution cannot be greater than the amount of economic loss suffered by the victim as a direct and proximate result of the commission of the offense. State v. Leach , 2d Dist. Clark No. 2017-CA-5, 2017-Ohio-8420, 2017 WL 5054295, ¶ 7.

{¶ 10} An appellate court reviews the trial court's decision pertaining to restitution under an abuse of discretion standard. Amburgey at ¶ 130 ; State v. Moore, 2d Dist. Clark No. 2010 CA 55, 2010-Ohio-6226, 2010 WL 5276933, ¶ 13.

Evidence of Victim's Economic Loss

{¶ 11} At the restitution hearing, the victim testified that he received "xrays and scans" the day after his attack, for which he was billed $572, and that the "emergency room costs" were $1,150; these costs were documented by bills sent to the victim and submitted as evidence (Exhibits 1 and 2). With respect to whether these bills had been submitted "to insurance," the victim stated, "They probably were by now because I talked to my insurance company last week * * *," and that the insurance "was pending still." The victim stated that he had not yet been informed by his insurance company "what parts they would pay for and what parts they wouldn't pay for."

{¶ 12} Based on this evidence, the trial court stated at the hearing that the victim suffered economic harm of $1,722 as a result of the offense, that the medical bills had not been paid, and that "the victim [was] personally liable for the expenses at the health center." Based on these findings, the trial court ordered Jacobs to pay restitution in the amount of $1,722 as a condition of community control. The court further stated that, "if that liability is reduced by a payment from his insurance company, then I'm willing to take a look at that change of personal liability."

{¶ 13} Jacobs argues that the restitution order was "unreasonable and improperly levied" because there was "significant disagreement" about some of the claimed expenses and because the victim's "specific loss[,] post insurance adjustment" was not established.

{¶ 14} According to Jacobs's brief, the alleged disagreement about the victim's claimed expenses fell into two categories: alleged repairs to doors, and whether the victim's injuries could have been caused by a preexisting disability. The victim admitted that he had incurred minimal expenses in repairing his doors, and the trial court did not award any restitution based on damage to the doors. Thus, we need not consider this issue further. The victim was questioned about the symptoms of his disability and about his refusal of medical care by paramedics on the day of the assault, but his testimony that he sought treatment on the day after the assault because he "ended up in the back over a recliner with [his] legs hanging over the arm of the recliner and then was hit several times again there" was largely undisputed. The trial court did not abuse its discretion in concluding that the assault caused injuries which were the basis of the medical expenses incurred the next day.

{¶ 15} With respect to insurance, the testimony at the restitution hearing established that the victim had insurance coverage for medical expenses, but he did not know how much, if any, of the medical expenses attributable to Jacobs's conduct would be paid by his insurance. Under these circumstances, an order of restitution for the full amount of the medical bills was improper.

{¶ 16} We have previously held that restitution may not exceed the victim's economic loss and, therefore, the economic loss "must be reduced by any insurance payment received." State v. Twitty , 2d Dist. Montgomery No. 24296, 2011-Ohio-4725, 2011 WL 4346597, ¶ 29, citing State v. Clayton, 2d Dist. Montgomery No. 22937, 2009-Ohio-7040, 2009 WL 5247521, ¶ 56. When all or part of a victim's losses are covered by an insurance policy, ordering an offender to pay the victim the full amount of the loss as restitution "would constitute impermissible double recovery." Id. , citing State v. Colon, 185 Ohio App.3d 671, 2010-Ohio-492, 925 N.E.2d 212, ¶ 7 (2d Dist.). See also Leach , 2d Dist. Clark No. 2017-CA-5, 2017-Ohio-8420 (in case of receiving stolen property, order of restitution for full amount of business's loss was error where a portion of the loss was covered by insurance).

{¶ 17} Moreover, "open-ended" restitution orders, in which the victim's actual economic loss is to be established at a later date, violate a defendant's due process right to have the amount of restitution established to a reasonable degree of certainty before it is ordered. State v. Bradley , 8th Dist. Cuyahoga No. 101590, 2015-Ohio-319, 2015 WL 407215 (restitution order that required subtraction of an unknown amount of insurance proceeds failed to comply with R.C. 2929.18(A) ); State v. Golar , 11th Dist. Lake No. 2002-L-092, 2003-Ohio-5861, 2003 WL 22470868 (imposition of restitution, with amount to be determined by pending civil litigation, was error); State v. Beverly, 2d Dist. Clark No. 2612, 1990 WL 34813, at * 8 (Mar. 29, 1990) (the defendant "is entitled to know the full extent of the judgment that has been rendered against him," and "* * *the restitution ordered as part of a criminal conviction may not be open-ended.").

{¶ 18} The trial court abused its discretion and erred as a matter of law in imposing restitution without determining the amount to be paid, notwithstanding that its oral statements at the restitution hearing and the conditions of community control contemplated a reduction in the amount owed based on the possibility of insurance payments.

{¶ 19} The assignment of error is sustained.

{¶ 20} The trial court's judgment will be affirmed in part and reversed in part; the matter will be remanded for the court to determine the actual amount of restitution.

WELBAUM, P.J. and DONOVAN, J., concur.


source: Caselaw Access Project

author: WELBAUM, P.J.

license: Public Domain

text:
    CITY OF DAYTON, Plaintiff-Appellee v. Johniecsa SMITH, Defendant-Appellant
    No. 27535
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered February 23, 2018.
    MATTHEW KORTJOHN, Atty. Reg. No. 0083743, Assistant City of Dayton Prosecutor, 335 West Third Street, Room 372, Dayton, Ohio 45402, Attorney for Plaintiff-Appellee.
    J. ALLEN WILMES, Atty. Reg. No. 0012093, 7821 North Dixie Drive, Dayton, Ohio 45414, Attorney for Defendant-Appellant.
   WELBAUM, P.J.

{¶ 1} Defendant-appellant, Johniecsa Smith, appeals from her conviction in the Dayton Municipal Court, following a bench trial, for one count of failing to control her dogs in violation of section 91.50(A)(5) of the Dayton Revised Code of General Ordinances ("R.C.G.O."). In support of her appeal, Smith contends that her conviction is against the manifest weight of the evidence. Smith also contends that the language in R.C.G.O. 91.50(D)(2), which sets forth an affirmative defense to a violation of R.C.G.O. 91.50(A)(5), is unconstitutionally vague. For the reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On May 16, 2016, Smith was charged by complaint with one count of failing to control her dogs in violation of R.C.G.O. 91.50(A)(5), a first-degree misdemeanor. Smith pled not guilty to the charge and the matter proceeded to a bench trial on December 1, 2016.

{¶ 3} At trial, the State presented the testimony of Gregory Beal, II ("Gregory"). Gregory is the adult son of Smith's neighbors, Gregory Beal, Sr. and Tiffany Beal, who reside at 430 Red Haw Road in Dayton, Ohio. Gregory testified that on May 10, 2016, he was visiting his father and stepmother's residence on Red Haw Road when Tiffany asked him to let their three toy poodles, Snoop, Gizmo, and Cocoa, outside to relieve themselves. Per Tiffany's request, Gregory let the poodles outside and allowed them to roam around the Beals' backyard unleashed while he watched them from the Beals' garage.

{¶ 4} Gregory testified that Snoop the poodle was standing near a broken fence that separated the Beals' property from Smith's adjacent property at 424 Red Haw Road when Smith's two dogs, Buddy and Remy, an American Bulldog mix and a Pitbull, began barking and growling at Snoop. In response, Gregory called for the poodles to come back to the house. As Snoop began to make his way toward the Beals' garage, Gregory observed Buddy come onto the Beals' driveway through the broken fence and "snatch" Snoop. Trial Trans. (Dec. 1, 2016), p. 36-41. Specifically, Gregory testified that Buddy grabbed Snoop by the neck with his mouth, shook Snoop a little, and then took him to Smith's backyard where Snoop was later found dead.

{¶ 5} In addition to Gregory's testimony, Tiffany Beal testified that four to five minutes after she asked Gregory to let her three poodles outside, Gregory came back in the house and told her that "the neighbor's dog had grabbed Snoop." Trial Trans. (Dec. 16, 2016), p. 91. In response, Tiffany testified that she and Gregory ran outside and attempted to call for Snoop at the broken fence, which she claimed belonged to Smith. Tiffany testified that Smith's two dogs, Buddy and Remy, then began to approach her. Since she did not know whether the dogs were secured, Tiffany testified that she decided to back up and knock on Smith's door and ask if Snoop was in Smith's backyard. Tiffany testified that Smith's husband, Gary Smith, eventually came to the door and looked for Snoop in his backyard. Tiffany testified that when Gary returned, he advised her that Snoop was dead.

{¶ 6} Tiffany and Gregory both testified that they called the police to report the incident. Officer Chris Smith of the Dayton Police Department and Officer Josh Cusick of the Animal Resource Center arrived at the scene shortly thereafter. Both officers testified that when they arrived at 424/430 Red Haw Road they observed the Beals' toy poodle, Snoop, deceased in Smith's backyard. Cusick testified that he observed puncture wounds in Snoop's neck, abdomen, and rib cage.

{¶ 7} Both officers also testified that they inspected the leads on which Smith's dogs were attached and determined that the leads were long enough to extend through the broken fence and into the Beals' backyard. According to the officers, the leads were connected to a main chain that was wrapped around a tree in Smith's backyard. Officer Cusick testified that he did not have to move or untie the leads from anything or manipulate the leads in any way to get them to extend into the Beals' property. Similarly, Officer Smith testified that he did not have to remove any kind of debris or unhook the leads from anything to be able to pull them into the Beals' driveway.

{¶ 8} Officer Cusick further testified that on the day in question he took photographs of the scene, the leads upon which Smith's two dogs were attached, and Snoop's body. The photographs were admitted into evidence as State's Exhibit Nos. 1-9. Both officers testified that the photograph marked as Exhibit 9 depicts the two leads coming through the broken fence and onto the Beals' driveway.

{¶ 9} Smith and her husband Gary also testified at trial. As part of their testimony, the Smiths did not deny that one or both of their dogs, Buddy and Remy, caused Snoop's death. However, as an affirmative defense, the Smiths attempted to prove that Snoop was unlawfully on their property and that Buddy and Remy were properly secured. To that end, the Smiths testified that a 100 to 120-pound plastic igloo doghouse was sitting on top of the main chain securing Buddy and Remy's leads. According to the Smiths, the position of the igloo doghouse on the main chain prevented the two connecting leads from reaching the Beals' property.

{¶ 10} Smith testified that she showed Officer Cusick how the main chain went underneath the igloo doghouse by rolling the igloo doghouse over, thereby releasing the main chain. Smith also testified that the main chain was imbedded in the earth and had to be uprooted due to a large piece of carpet that was previously laying on top of the main chain. However, Smith indicated the carpet had since been removed and was not present on the day Snoop was attacked. Smith claimed that the connecting leads were measured by Officer Cusick after she uprooted and released the main chain from the igloo doghouse, thus permitting the connecting leads to reach the Beals' property. While the Smiths testified that it would be "possible" for their dogs to move the chain from underneath the igloo doghouse, they claimed that neither the chain nor the igloo was out of place at the time of the incident in question.

{¶ 11} After considering all the evidence presented at trial, the trial court found Smith guilty of failing to control her dogs in violation of R.C.G.O. 91.50(A)(5). Following its decision, the trial court sentenced Smith to 180 days in jail, which the trial court suspended, five years of probation, and restitution in the amount of $750 to be split equally with her husband Gary, who was also convicted of violating R.C.G.O. 91.50(A)(5). The trial court also ordered Smith not to have any contact with the Beals, to obtain a dangerous dog designation within ten days, and to transfer her dogs Buddy and Remy to someone else. Smith was further ordered not to have any dog on her residence, regardless of ownership, for five years.

{¶ 12} Smith now appeals from her conviction, raising two assignments of error for review.

First Assignment of Error

{¶ 13} Smith's First Assignment of Error is as follows:

THE TRIAL COURT'S VERDICT OF GUILTY WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 14} Under her First Assignment of Error, Smith contends that her conviction for failing to control her dogs in violation of R.C.G.O. 91.50(A)(5) was against the manifest weight of the evidence because the trial court failed to properly weigh evidence demonstrating that she established the affirmative defense codified in R.C.G.O. 91.50(D)(2). We disagree.

{¶ 15} "When a conviction is challenged on appeal as being against the weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, 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 conviction must be reversed and a new trial ordered.' " State v. Hill , 2d Dist. Montgomery No. 25172, 2013-Ohio-717, 2013 WL 784643, ¶ 8, quoting State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). "A judgment should be reversed as being against the manifest weight of the evidence 'only in the exceptional case in which the evidence weighs heavily against the conviction.' " Id. , quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 16} "The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve." State v. McDonald , 2d Dist. Montgomery No. 27237, 2017-Ohio-8496, 2017 WL 5197245, ¶ 21, citing State v. DeHass , 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). " 'Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder's determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.' " Id. , quoting State v. Lawson , 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).

{¶ 17} "This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of fact lost its way in arriving at its verdict." State v. Carpenter , 2d Dist. Clark No. 2016-CA-66, 2017-Ohio-8905, 2017 WL 6209651, ¶ 26, citing State v. Bradley , 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510, *4 (Oct. 24, 1997).

{¶ 18} As previously noted, Smith was convicted for violating R.C.G.O. 91.50(A)(5), which provides that: "No person owning, keeping, possessing, harboring, maintaining, or having the care, custody, or control of a dog shall suffer or permit such dog to: * * * Bite or otherwise cause physical harm to any other person, domestic animal, or feline." Smith does not dispute that she was the owner of the two dogs at 424 Red Haw Road that bit and killed the Beals' toy poodle, Snoop. Instead, Smith submits that the weight of the evidence demonstrates that she established the affirmative defense codified in R.C.G.O. 91.50(D)(2).

{¶ 19} Pursuant to R.C.G.O. 91.50(D)(2): "It shall be an affirmative defense to a violation of § 91.50(A)(3), (4), and (5) that at the time of the occurrence such other person, domestic animal, or feline was unlawfully on the property owned or controlled by the owner of such dog, and that such dog was not unsecured." The term "unsecured" is defined as "not securely confined indoors, or not securely restrained by means of a collar and chain, pen, fence, or similar physical device, and in such a manner which effectively prevents the animal from going beyond the premises of the owner." R.C.G.O. 91.01.

{¶ 20} Because Smith does not dispute the facts giving rise to a violation of R.C.G.O. 91.50(A)(5), the threshold issue is whether the weight of the evidence indicates that the Beals' dog Snoop was unlawfully on Smith's property at the time her dogs Buddy and Remy attacked Snoop, as well as whether Smith's dogs were not "unsecured" at the time of the attack.

{¶ 21} The sole eyewitness to the incident, Gregory Beal, II, testified that one of the Smiths' dogs, Buddy, came onto the Beals' driveway, "snatched" Snoop by the neck, and took Snoop to the Smiths' backyard where Snoop was later found dead with several puncture wounds. Following the incident, both Officers Smith and Cusick testified that they inspected the leads on which Buddy and Smith's other dog, Remy, were attached and observed that the leads could stretch over onto the Beals' property. The officers' testimony was corroborated by photographic evidence showing the leads extending through a broken fence and crossing onto the Beals' driveway.

{¶ 22} Despite this evidence, Smith claims that the weight of the evidence presented at trial establishes that Snoop was unlawfully on her property, and that her dogs Buddy and Remy were not "unsecured" at the time of the attack. In support of this claim, Smith relies on her and her husband Gary's trial testimony that the main chain on which Buddy and Remy's leads were attached was sitting underneath a 100 to 120-pound plastic igloo doghouse that prevented the leads from extending into the Beals' property. Smith also relies on her testimony that she "rolled" the igloo doghouse over to free the main chain before Officer Cusick inspected the length of the connecting leads. Accordingly, Smith proposes the weight of the evidence establishes that Snoop must have been on her property at the time of the attack, because the presence of the igloo doghouse prevented her dogs from going onto the Beals' property.

{¶ 23} Smith's claim lacks merit because neither Officer Smith nor Officer Cusick testified to observing an igloo doghouse on top of the main chain, nor does any of the photographic evidence depict the igloo doghouse in question. In fact, as noted above, Officer Smith specifically testified that he did not have to remove any debris or unhook the leads from anything to extend the leads into the Beals' property. Office Cusick also testified that he did not move or untie the leads from anything or manipulate the leads in any way when he inspected their length. Officer Cusick further testified that Smith never mentioned using an igloo doghouse or anything else other than the leads to restrain her dogs.

{¶ 24} Based on the foregoing, we cannot say that Smith's conviction was against the manifest weight of the evidence. More specifically, the weight of the evidence does not support the affirmative defense in R.C.G.O. 91.50(D)(2). The testimony of Officers Smith and Cusick and the photographic evidence indicates that Smith's dogs, Buddy and Remy, had the ability to go onto the Beals' property due to the length of their leads. This is further supported by Gregory's eyewitness testimony that Smith's dog, Buddy, came onto the Beals' driveway, grabbed Snoop by the neck, and took him into Smith's backyard.

{¶ 25} Although Smith and her husband testified that the igloo doghouse in their backyard prevented their dogs' leads from extending onto the Beals' property, the trial court was not required to find their testimony on that matter credible. The trial court, in its discretion, was free to place greater weight on Gregory's testimony that Snoop was on the Beals' property when Buddy came through the fence and grabbed him. Thus, we cannot say the trial court lost its way and created a manifest miscarriage of justice in finding that the affirmative defense in R.C.G.O. 91.50(D)(2) had not been established.

{¶ 26} Smith's First Assignment of Error is overruled.

Second Assignment of Error

{¶ 27} Smith's Second Assignment of Error is as follows:

THE INSTANT STATUTE WAS UNCONSTITUTIONALLY AMBIGUOUS MAKING A CONVICTION THEREFORE ILLEGAL AND REVERSIBLE.

{¶ 28} Under her Second Assignment of Error, Smith contends that the language governing the affirmative defense in R.C.G.O. 91.50(D)(2) is unconstitutionally vague. Specifically, Smith claims the phrase "such dog" is ambiguous because it is unclear what dog R.C.G.O. 91.50(D)(2) is referring to. As a result, Smith claims the ordinance does not clearly indicate what a defendant must prove to establish the affirmative defense described therein, and is therefore void for vagueness. We again disagree.

{¶ 29} As a preliminary matter, we note that Smith did not raise the aforementioned void for vagueness issue before the trial court. It is well established that " 'an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court.' " State v. Awan , 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), quoting State v. Childs , 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus. (Other citations omitted.) "[T]he question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court." (Citation omitted.) Id. at 122, 489 N.E.2d 277. Smith, therefore, forfeited her constitutional challenge to R.C.G.O. 91.50(D)(2) by failing to object to its alleged ambiguity in the trial court. See State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15.

{¶ 30} Nevertheless, "[e]ven where waiver is clear, this court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it." In re M.D. , 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus. To demonstrate plain error, it must be shown that "but for a plain or obvious error, the outcome of the proceeding would have been otherwise, and reversal must be necessary to correct a manifest miscarriage of justice." Quarterman at ¶ 16, citing State v. Davis , 127 Ohio St.3d 268, 2010-Ohio-5706, 939 N.E.2d 147, ¶ 29. "The burden of demonstrating plain error is on the party asserting it." Id. , citing State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 17.

{¶ 31} In this case, we do not find that the phrase "such dog" in R.C.G.O. 91.50(D)(2) presents a plain or obvious error that warrants a reversal of Smith's conviction on grounds of vagueness. "[W]hen a statute is challenged under the due process doctrine of vagueness, a court must determine whether the enactment (1) provides sufficient notice of its proscriptions and (2) contains reasonably clear guidelines to prevent official arbitrariness or discrimination in its enforcement." Perez v. Cleveland , 78 Ohio St.3d 376, 378, 678 N.E.2d 537 (1997), citing Smith v. Goguen , 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974).

{¶ 32} When R.C.G.O. 91.50(D)(2) is read in conjunction with 91.50(A)(5) the meaning of the phrase "such dog" in section (D)(2) becomes clear, as those provisions provide:

(A) No person owning, keeping, possessing, harboring, maintaining, or having the care, custody, or control of a dog shall suffer or permit such dog to: * * * (5) Bite or otherwise cause physical harm to any other person, domestic animal, or feline.
(D) Defenses. * * * (2) It shall be an affirmative defense to a violation of § 91.50(A)(3), (4), and (5) that at the time of the occurrence such other person, domestic animal, or feline was unlawfully on the property owned or controlled by the owner of such dog, and that such dog was not unsecured.

{¶ 33} In reading these provisions, it is clear that the phrase "such dog" in R.C.G.O. 91.50(D)(2) is referring to the dog that bit or caused physical harm to another person or domestic animal. Accordingly, we find R.C.G.O. 91.50(D)(2) is drafted with enough clarity to provide sufficient notice of what a defendant must prove to establish the affirmative defense described therein. In other words, R.C.G.O. 91.50(D)(2) is not unconstitutionally vague, and Smith's claim otherwise lacks merit.

{¶ 34} Smith's Second Assignment of Error is overruled.

Conclusion

{¶ 35} Having overruled both assignments of error raised by Smith, the judgment of the trial court is affirmed.

DONOVAN, J. and FROELICH, J., concur.


author: CALLAHAN, Judge.

text:
    Miehyun Claire CHOI, Appellee v. Peter CHOI, Appellant
    No. 28568
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: February 28, 2018
    THOMAS T. MULLEN, Attorney at Law, for Appellant.
    RANDAL A. LOWRY, Attorney at Law, for Appellee.
    KENNETH L. GIBSON, Attorney at Law, for Appellee.
    DECISION AND JOURNAL ENTRY
   CALLAHAN, Judge.

{¶ 1} Appellant, Peter Choi ("Husband"), appeals the judgment of the Summit County Common Pleas Court, Domestic Relations Division. For the reasons set forth below, this Court affirms.

I.

{¶ 2} Husband and Appellee, Miehyun Claire Choi ("Wife"), were married in 1978. They have three adult children as a result of the marriage. Husband is a licensed dentist. However, due to his age, 64 years, and declining health, he is unemployed. Wife is 62 years of age and works as a nurse anesthetist. During their 38 years of marriage, the parties acquired a marital home, numerous automobiles, significant retirement assets, and funds in savings and checking accounts.

{¶ 3} In October 2015, Wife filed for divorce, and Husband counterclaimed for the same. The parties litigated several issues at the final divorce hearing, including spousal support and division of marital property. At the divorce hearing, Husband alleged Wife voluntarily reduced her income and improperly disposed of marital assets. Wife alleged Husband violated the trial court's order regarding listing the marital home for sale and refraining from making disparaging comments about Wife.

{¶ 4} The trial court issued a Judgment Entry Decree of Divorce, thereby terminating the marriage. Relevant to this appeal, the divorce decree ordered Wife to pay spousal support of $2,100.00 per month for 5 years. As to the marital property, the retirement accounts were divided equally, while the savings accounts, checking accounts, automobiles, and health saving account remained with the respective owner.

{¶ 5} Both Husband and Wife timely appealed. Wife filed a Civ.R. 60(A) motion and motion for limited remand. Upon remand, the trial court granted Wife's Civ.R. 60(A) motion and issued a nunc pro tunc Judgment Entry which corrected Wife's maiden name and the grounds upon which the spousal support shall terminate. In light of the nunc pro tunc Judgment Entry, Wife moved and was granted a dismissal of her appeal. Only Husband's appeal remains, with two assignments of error before this Court for consideration.

II.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN ITS FEBRUARY 9, 2017 JUDGMENT ENTRY DECREE OF DIVORCE WHEN IT ORDER[ED] SPOUSAL SUPPORT IN THE AMOUNT OF $2,100.00 PER MONTH BY FAILING TO CONSIDER [WIFE'S] VOLUNTARY REDUCTION
OF EMPLOYMENT AND FINANCIAL MISCONDUCT.

{¶ 6} In his first assignment of error, Husband argues that the trial court failed to consider Wife's voluntary reduction of employment and financial misconduct when determining the spousal support award. This Court disagrees.

{¶ 7} Initially, this Court notes that Husband did not identify what actions constituted Wife's "financial misconduct" and this Court will not presume that "financial misconduct" and "voluntary reduction of employment" are one and the same. See App.R. 16(A)(7). Nor did Husband develop any argument regarding Wife's financial misconduct relative to the spousal support award. See id. Because Husband failed to make any argument in support of this issue, this Court declines to create one for him. Cardone v. Cardone , 9th Dist. Summit Nos. 18349, 18673, 1998 WL 224934, *8, 1998 Ohio App. LEXIS 2028, *22 (May 6, 1998). ("If an argument exists that can support this assignment of error, it is not this court's duty to root it out."). Accordingly, this Court confines its review to Husband's argument regarding Wife's voluntary underemployment in relation to the spousal support award.

{¶ 8} "In divorce * * * proceedings, * * * the court of common pleas may award reasonable spousal support to either party." R.C. 3105.18(B). A trial court's decision regarding an award of spousal support is reviewed for an abuse of discretion. Hirt v. Hirt , 9th Dist. Medina No. 03CA0110-M, 2004-Ohio-4318, 2004 WL 1836990, ¶ 8. "A trial court will be found to have abused its discretion when its decision is contrary to law, unreasonable, not supported by evidence, or grossly unsound." (Citations and quotations marks omitted.) Tustin v. Tustin , 9th Dist. Summit No. 27164, 2015-Ohio-3454, 2015 WL 5047125, ¶ 21.

{¶ 9} "In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, * * * of spousal support * * *, the court shall consider all of the * * * factors" listed in R.C. 3105.18(C)(1)(a)-(n). R.C. 3105.18(C)(1). Those factors are as follows:

(a) The income of the parties, from all sources * * *;
(b) The relative earning abilities of the parties;
(c) The ages and the physical, mental, and emotional conditions of the parties;
(d) The retirement benefits of the parties;
(e) The duration of the marriage;
(f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home;
(g) The standard of living of the parties established during the marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
(j) The contribution of each party to the education, training, or earning ability of the other party * * *;
(k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;
(l) The tax consequences, for each party, of an award of spousal support;
(m) The lost income production capacity of either party that resulted from that party's marital responsibilities;
(n) Any other factor that the court expressly finds to be relevant and equitable.

R.C. 3105.18(C)(1)(a)-(n). While the trial court's consideration of each of these factors is mandatory, "[t]he trial court is not required to comment on each statutory factor; rather, the record must only show that the court considered the statutory factors when making its award." Manos v. Manos , 9th Dist. Summit No. 27335, 2015-Ohio-2932, 2015 WL 4464883, ¶ 13 ; see R.C. 3105.18(C)(1).

{¶ 10} Based on R.C. 3105.18(C)(1)(n), Husband argues that the trial court failed to determine that Wife " 'voluntar[il]y' reduced her income" and should have her "income * * * imputed at $158,871." Husband relied entirely on this Court's decision in Collins v. Collins , 9th Dist. Wayne No. 10CA0004, 2011-Ohio-2087, 2011 WL 1642775. Collins stated " R.C. 3105.18 does not specifically direct the court to examine financial misconduct or whether a party's conduct evidences intent to avoid payment of spousal support." Id. at ¶ 21. However, under R.C. 3105.18(C)(1)(n), "if the court determines that such evidence is relevant and equitable in its determination of spousal support, [then] it has discretion to consider it." Id. An example of relevant and equitable facts that a trial court could consider is "one spouse's decision to leave his or her secure and lucrative employment." Id.

{¶ 11} In Collins , the husband filed for divorce and resigned his position as a physician at a hospital earning $200,000 annually in order to open a private medical practice earning $29,400 annually. Id. at ¶ 3, 5. The trial court implicitly found the husband to be voluntarily underemployed and imputed $100,000 to him as income for child and spousal support. Id. at ¶ 33-34. Both the magistrate and trial court found the husband did not have an ulterior motive of avoiding support obligations when he resigned from the hospital to begin his private practice. Id. at ¶ 41-42. Because the trial court did not provide any other analysis of the evidence and the statutory factors, this Court was concerned that the husband's lack of "ulterior motives in leaving his employment was the paramount consideration in determining spousal support." Id. at ¶ 46. This Court stated "[w]hether [the husband] had ulterior motives or not, his unilateral decision to leave his secure and lucrative employment, was certainly both relevant and raised equitable concerns as contemplated by R.C. 3105.18(C)(1)(n)." Id. at ¶ 46. Based on various errors, the case was remanded. Id. at ¶ 38, 45-46.

{¶ 12} This case is factually and legally distinguishable from Collins . The trial court stated it reviewed the R.C. 3105.18(C)(1) factors in light of the testimony and exhibits. This evidence included Wife's testimony that she was 62 years old and worked as a nurse anesthetist. Wife testified that her employer changed in 2015 because the original employer was purchased by another company. In September 2015, her new employer learned that a significant contract would not be renewed effective January 1, 2016. Due to the loss of this contract, the employer had to "cut back staff through retirements and layoffs [and t]he remaining staffs['] hours were reduced, * * * in an effort to control costs." Wife testified that in a meeting with the chairman, he "asked [them] to voluntarily either take an early retirement or take like hours cut because * * * otherwise there was going to be serious layoffs." Because she needed to continue working, Wife elected the hourly reduction, in lieu of retirement and to avoid being laid off.

She limited the reduction to an 8-hour shift per week because she knew that she "could [not] afford to cut back any more," whereas other staff reduced their hours from 40 to 26 hours a week. Despite the early retirements and hourly reductions, 11 nurse anesthetists were terminated. Fortunately, Wife was not one of them. Unlike the spouse in Collins , Wife did not quit a secure and lucrative job. Instead, she took a limited reduction in hours in hopes of keeping her job.

{¶ 13} Husband argues that the employer described the decision of Wife to take an hourly reduction as being " 'entirely voluntarily.' " While Husband states that the "employer['s] statements" evidencing that "the reduction in hours were 'entirely voluntarily' " "were admitted into the [c]ourt proceeding," Husband has failed to cite to the record location of these "employer statements." An appellant bears the burden of not only formulating an argument on appeal and supporting that argument with legal authority, but also "with citations to * * * parts of the record on which the appellant relies. " (Emphasis added.) App.R. 16(A)(7). Further, the transcript of the hearing reflects Wife's counsel objecting to this line of questioning and a sidebar being held. After the sidebar, there were no further questions on the issue and Wife did not answer those questions. Thus, there was no such evidence at the hearing and this portion of Husband's argument is not supported by the record.

{¶ 14} On the contrary, Wife testified to and admitted an exhibit of an email from the employer which clarified that it was the impetus of that decision. The employer required Wife to choose early retirement, reduction in hours, or a layoff. Wife's decision was made at the employer's demand, and not on her own initiative. Again, unlike the spouse in Collins , Wife's decision to reduce her income by 8 hours a week was not voluntary, uncoerced, or unilateral.

{¶ 15} Another distinguishing factor between this case and Collins is found in the findings of the trial courts. The trial court in the case before us considered "all of the statutory factors * * * as made relevant by the evidence" and in light of the evidence, did not "expressly find[ ]" any other factors relevant or equitable in its consideration of spousal support. (Emphasis deleted.) See contra Collins at ¶ 46 ; R.C. 3105.18(C)(1)(n). Accordingly, Husband's position that the facts and issues in Collins are akin to this case is incorrect.

{¶ 16} In light of the foregoing, Husband failed to present evidence that Wife's weekly 8-hour reduction in employment constituted her being " 'voluntarily under employed.' " Accordingly, the trial court was not required to consider whether Wife was " 'voluntarily under employed' " when deciding the spousal support award. See Johnson v. Johnson , 9th Dist. Summit No. 24159, 2008-Ohio-4557, 2008 WL 4151306, ¶ 18 (This Court recognized that while the trial court is not prohibited from considering voluntary underemployment for purposes of spousal support, such consideration is unwarranted when there is no such evidence.). See also Valentine v. Valentine , 9th Dist. Medina No. 11CA0088-M, 2012-Ohio-4202, 2012 WL 4054771, ¶ 4-5 (When considering spousal support, a trial "court did not have to specifically consider whether [the spouse] was voluntarily unemployed * * *.") (Emphasis added.).

{¶ 17} Lastly, Husband's position that the trial court should impute $158,871 in income to Wife to determine spousal support is not supported by the law. Relying on Collins , this Court has consistently held that the spousal support statute, unlike the child support statute, does not direct the trial court to " 'impute' " income to a spouse. Collins at ¶ 19 ;

Valentine at ¶ 4-5 ; Kokoski v. Kokoski , 9th Dist. Lorain No. 12CA010202, 2013-Ohio-3567, 2013 WL 4434899, ¶ 19, 21.

{¶ 18} Based on the forgoing, the trial court did not abuse its discretion when it declined to consider whether Wife was voluntarily underemployed and it did not impute income to Wife.

{¶ 19} Husband's first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO EQUITABLY DIVIDE THE MARITAL PROPERTY IN ITS FEBRUARY 9, 2017 JUDGMENT ENTRY DECREE OF DIVORCE WHEN IT FAILED TO CONSIDER [WIFE'S] DEPLETION OF [THE] MARITAL ASSETS IMMEDIATELY PRIOR TO THE DIVORCE.

{¶ 20} In his second assignment of error, Husband argues that the trial court failed to consider Wife's financial misconduct, resulting in an inequitable division of marital property. This Court disagrees.

{¶ 21} "A trial court is vested with broad discretion when fashioning a division of marital property." Naylor v. Naylor , 9th Dist. Summit Nos. 21758, 2004-Ohio-4452, 2004 WL 1882820, ¶ 16. Additionally, the trial court's determination regarding whether one spouse has engaged in financial misconduct is reviewed for an abuse of discretion. See Havrilla v. Havrilla , 9th Dist. Summit No. 27064, 2014-Ohio-2747, 2014 WL 2918456, ¶ 46. Pertinent to this Court's review of this assignment of error, the abuse of discretion standard is set forth under the first assignment of error.

{¶ 22} R.C. 3105.171(F)(1)-(10) sets forth the factors the trial court shall consider when making a division of marital property. Another consideration in the division of marital property is financial misconduct by a spouse. See R.C. 3105.171(E)(4). When a spouse engages in financial misconduct, the statute provides the trial court with discretion to "compensate the offended spouse with a distributive award or with a greater award of marital property." R.C. 3105.171(E)(4) ; Kita v. Kita , 9th Dist. Summit No. 19256, 1999 WL 1068450, *3, 1999 Ohio App. LEXIS 5545, *5 (Nov. 24, 1999).

{¶ 23} R.C. 3105.171(E)(4) defines financial misconduct as including "the dissipation, destruction, concealment, nondisclosure, or fraudulent disposition of assets." As applied to the division of marital property, "financial misconduct necessarily implicates wrongdoing such as one spouse's [intentional] interference with the other's property rights or the offending spouse's profiting from the misconduct." Tustin , 2015-Ohio-3454, at ¶ 44 ; Hammond v. Brown , 8th Dist. Cuyahoga No. 67268, 1995 WL 546903, 1995 Ohio App. LEXIS 3975, *9 (Sept. 14, 1995). Thus, "[f]inancial misconduct requires more than dishonest behavior." Bucalo v. Bucalo , 9th Dist. Medina No. 05CA0011-M, 2005-Ohio-6319, 2005 WL 3193851, ¶ 30. It also "requires 'some element of wrongful intent or scienter[.]' " Havrilla at ¶ 47, quoting Orwick v. Orwick , 7th Dist. Jefferson No. 04 JE 14, 2005-Ohio-5055, 2005 WL 2338629, ¶ 25.

{¶ 24} Wrongful scienter may be established based on when the alleged financial misconduct occurred in relation to the filing and pendency of the divorce or period of separation. Downey v. Downey , 9th Dist. Summit No. 23687, 2007-Ohio-6294, 2007 WL 4179863, ¶ 17 ; Hammond at *9 -10. "[I]f the time frame of the alleged misconduct does not establish scienter, there must be some other evidence that does establish it." Orwick at ¶ 28 (If the alleged financial misconduct occurred years prior to the initiation of the divorce proceedings, then there must be proof of wrongful intent when the misconduct occurred.).

{¶ 25} The burden of proving financial misconduct rests with the complaining spouse. Palazzo v. Palazzo , 9th Dist. Summit Nos. 27932, 2016-Ohio-3041, 2016 WL 2941073, ¶ 10. "An allegation of financial misconduct, unsupported by evidence of wrongdoing, will not support a dissipation award." Detlef v. Detlef , 6th Dist. Lucas No. L-00-1137, 2001 WL 1590095, *5, 2001 Ohio App. LEXIS 5597, *15 (Dec. 14, 2001).

{¶ 26} Husband contends that immediately prior to filing for divorce, Wife withdrew large sums of money from the marital accounts which she used to purchase a car, make questionable charitable donations, pay down her personal credit card, and make gifts to their adult children in order to "deceptively deprive[ Husband] of an equal division of what actually were the marital assets." Husband also asserts that "$160,000.00 from two (2) CD[s] are un[ac]counted for."

Car

{¶ 27} Husband and Wife both testified regarding the following vehicles that they owned at the time of the divorce: a Lexus, a 1996 Mazda Miata, a 2003 Acura MDX, a 1997 Acura RL, a 2008 Mercedes, a 2004 Volvo, and a 2016 Subaru Forester. All of the cars, except for the Subaru, were in Husband's name. However, both parties testified that the Volvo belonged to their oldest son and the Miata belonged to their youngest son.

{¶ 28} After the divorce was filed, Husband testified that he "junked" the Lexus for "$180," sold the 1997 Acura RL for $500 because it was "broken and * * * undrivable," and shipped the Miata to their youngest son in California. As to the Volvo, Husband admitted a repair bill and testified that the car required $1,317 in engine repairs and that their oldest son primarily drove it. Additionally, both parties testified that the Acura MDX had ongoing transmission problems and only operated in fourth gear. There was no testimony as to the condition of the Mercedes except its Kelley Blue Book Value.

{¶ 29} Wife testified that Husband "told [her] to drive whatever car for that day or that week he thought [she] should drive." She drove the Acura MDX until the transmission began to fail for the third time, which was a couple of months before the divorce. According to Wife, because there was something wrong with the Acura MDX, Husband "told" her to drive the Miata. Wife testified that she did not like to the drive the Miata because it was "very slippery" "in the winter." Also, the Miata was the youngest son's car.

{¶ 30} At the hearing, Wife stated that all of Husband's cars needed repairs and he told her that "those cars are not in great condition." With the exception of the Miata, Wife "did not feel unsafe. It was that [Husband] always told [her] they were unsafe to drive. So[, she] took his word for it."

{¶ 31} Because Wife's commutes to work varied and she needed a safe car, she purchased the Subaru. She chose the Subaru because her "good friend had bought that car a year before and [her friend's] husband had done a lot of research on the safest car" before making the purchase.

{¶ 32} Wife purchased the Subaru for $28,484, in cash, approximately one week before filing the divorce. Wife testified that during their marriage she had purchased three other vehicles in cash: the Volvo, the Miata, and a conversion van.

{¶ 33} Based on the foregoing, Husband failed to present any evidence of wrongdoing by Wife when she purchased the Subaru. Wife's purpose in buying the Subaru a week before the divorce filing was to insure that she had a safe car, which Husband was unable to provide. Accordingly, the timing of the purchase does not establish wrongful scienter by the Wife. Moreover, the purchase of a safe vehicle to use for her commute to work did not result in a profit to Wife. Further, the purchase of the Subaru was made in cash from her savings account, just as she had done for three other vehicles during the marriage. Thus, there was no evidence Wife was intentionally interfering with Husband's rights to the marital property.

Charitable Contributions

{¶ 34} Husband challenges Wife's charitable donations in 2012 and contends that "[t]he evidence elicited during trial shows that [Wife] made improper donations to an individual evidenced by d[ia]ries that she had a relationship outside the church affiliation." Contrary to Husband's statement, no such evidence is in the record. The hearing reflects that the trial court repeatedly sustained Wife's objections to the admission of her diaries and questioning as to her charitable donations being influenced by an alleged recent paramour.

{¶ 35} Instead, there is evidence that Wife took an $8,000 charitable donation deduction on her 2012 taxes. Additionally, there is a statement of giving from Westminster Presbyterian Church dated for 2012 which reflects Wife giving $4,660 to the church throughout the year. At the hearing, Husband argued that Wife failed to prove where the remaining $3,340 was donated and thus infers Wife engaged in misconduct. However, Wife testified that she "also contributed to [her] friend's church, the Catholic church, [and she's] a member at a Lutheran church" to explain where the remaining contributions were made.

{¶ 36} In response to why she gave $4,600 to Westminster Presbyterian Church, Wife explained that "[i]t's just the church that [she] grew up in and that [she] had a membership in." She dispelled the notion that she was giving money to Westminster Presbyterian Church based on romantic reasons by pointing out that the youth pastor with whom she went on three dates in 1976 left that church the same year. Thus, the evidence reflected her donations were influenced by her past membership at the church and not a short-lived relationship with a youth pastor who left the church 36 years ago.

{¶ 37} Wife also testified that she donates "very generously to church[es]" because she "feel[s] like God has given [her] a lot and that's just [her] way of giving back to God. And * * * because * * * the [B]ible says [she] should tithe and that's [her] conviction." She confirmed that she did not make charitable donations to hide her money from Husband. In fact, Husband was aware of her charitable giving because he told her to "pay [her] church offering with [her own] income." Wife's tax returns from 2012 through 2015 reflected a consistent five to seven percent charitable donation each year.

{¶ 38} Again, Husband has failed to present evidence of wrongdoing by Wife as it relates to her charitable donations in 2012 to Westminster Presbyterian Church. The conduct Husband complains of was 3 years prior to and not immediately preceding the divorce. There was no evidence that Wife profited from the charitable donation. Instead, the evidence was that Wife made the donations based on her desire to help others and the directives of the Bible. Nor was there any evidence that Wife intended to dissipate Husband's share of the marital estate. In fact, Husband was aware of Wife's charitable giving and told her to do so with her own income.

Money Given to Adult Children

{¶ 39} The parties' three children attended Harvard for their undergraduate education. As agreed by Wife and Husband, Wife paid for all of their daughter's tuition, they split the cost of the tuition for their youngest son, while their oldest son paid for his own tuition. Husband testified that he paid for everything else related to the children, such as their travel to school. He stated that Wife kept all her money in her account and did not pay for anything. Eventually, he conceded that Wife "paid [for] some of them later on" and that she bought the Miata for their youngest son.

{¶ 40} Wife testified more specifically that out of her bank account she paid for all three of the children's "[b]ooks, clothes, living pocket money," "room and board," "travel back and forth" for the holidays, and their credit card bills. While the children were in college and after they graduated, Wife would also deposit money into their individual bank accounts. For instance, in 2012 Wife deposited $1,500 and $10,000 into the youngest son's account. And she deposited $20,000 into the oldest son's account in 2011 and again in 2012. The second deposit was to pay for his half of the cost of his wedding.

{¶ 41} On appeal Husband does not challenge these payments to the children. He only contests the payments Wife made in August and September 2015 to the children. Wife testified that she paid their daughter $4,000 on August 8, 2015 as reimbursement for her portion of the meals, hotel, and travel costs associated with a trip to Vancouver with their daughter and son-in-law. Additionally, Wife gave their youngest son $2,000 on September 4, 2015 to help him with the cost of his medicine related to a recent illness. Lastly, Wife issued two checks to their oldest son on September 19, 2015-one in the amount of $5,000 as an anniversary gift and one in the amount of $1,000 as a birthday gift.

{¶ 42} While all of these payments occurred shortly before the divorce filing, there is no evidence that Wife acted with a wrongful intent in issuing these payments. The moneys were paid to their adult children. Contrary to Husband's bald assertions that Wife only paid tuition, the checks from 2011 and 2012 established that Wife had historically given large sums of money to their adult children for various reasons. Husband did not contest Wife's expenditures to their children in the past. Thus, her continued support of their children a month prior to the divorce filings is not evidence of an intentional interference with Husband's rights to the marital property. Nor is there evidence that Wife gained or profited from these expenditures.

Credit Card Payment

{¶ 43} Wife testified and her bank statement reflected that she made a payment of $3,120.79 to American Express for her credit card on September 9, 2015. Husband did not elicit any other testimony from Wife regarding this credit card payment. Husband argues that the proximity of the credit card payment to the filing of the divorce establishes Wife's wrongful scienter. While this was a significant payment in the month preceding the divorce filing, Husband admitted other evidence which established this single payment was not made with wrongful scienter.

{¶ 44} Husband admitted Wife's Affidavit of Property in which she responded that "[a]ll credit cards" were "[p]aid monthly" and there was no balance due. Additionally, Wife testified that she does not have any credit card debt. Further, Husband admitted Wife's bank statements from September 1, 2015 through July 31, 2016. A review of these bank statements reflects that Wife routinely made a monthly payment to American Express during the first half of each month in amounts ranging from $1,950 to $5,065. This payment history, along with Wife's averment in the Affidavit of Property that she has no outstanding debt because it is paid monthly, shows Wife's lack of wrongful scienter as to the single American Express credit card payment in September 2015.

Certificates of Deposit

{¶ 45} Wife testified that in 2008 she did not renew her certificates of deposit ("CDs") from 2005 and 2006 and instead rolled the CDs' proceeds of $108,932 into her money market account. These transactions were reflected on her September 2008 bank statement. Husband does not dispute this chain of events. Instead, he argues that Wife engaged in financial misconduct because she has not accounted for what happened to the monies from the CDs from 2008 to the present. Husband has "calculated there's about at least one million dollar[s] gone somewhere" and he does not know "where it ended up."

{¶ 46} In response, Wife testified that she does not have any CDs currently. As to the funds from the earlier CDs, she stated that the money was transferred into her money market account and she "used it for tuition, for the living expenses for [her] children, [and] all the bills." The youngest child graduated from college in 2011. As addressed above, there were checks made payable to the children dating back to 2011. Wife stated that none of the proceeds from the CDs is missing or hidden. Wife testified that she has only ever had one bank account and that all her money is in that account because she is "not very financially savvy."

{¶ 47} In this case, Husband is complaining of alleged misconduct dating back 7 years. He has failed to present anything other than bald accusations that Wife wrongfully disposed of the proceeds from the CDs. There is no evidence that Wife personally profited or engaged in misconduct solely to defeat Husband's interest in the marital estate. Instead, the evidence is that the proceeds of the CDs were used to the benefit of their children and to pay bills.

Conclusion

{¶ 48} The trial court made no finding on the issue of financial misconduct and did not mention the issue in the final judgment. This is because Husband's evidence did not support consideration of the issue of financial misconduct. Accordingly, the trial court did not abuse its discretion in fashioning an equitable division of the marital property.

{¶ 49} Husband's second assignment of error is overruled.

III.

{¶ 50} Husband's first and second assignments of error are overruled. The judgment of the Summit County Common Pleas Court, Domestic Relations Division is affirmed.

Judgment affirmed.

HENSAL, P.J.

SCHAFER, J.

CONCUR.

      Husband does not argue that payments subsequent to the divorce filing were financial misconduct.


author: HENSAL, Presiding Judge.

text:
    STATE of Ohio, Appellee v. Zakiya DELANEY, Appellant
    No. 28663
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: February 28, 2018
    ANGELA M. KILLE, Attorney at Law, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.
    DECISION AND JOURNAL ENTRY
   HENSAL, Presiding Judge.

{¶ 1} Zakiya Delaney appeals her convictions from the Summit County Court of Common Pleas. We affirm.

I.

{¶ 2} While conducting surveillance on a house for possible drug activity, the police observed Ms. Delaney and her brother, Andrew, leave the house in a rental vehicle. The police performed a traffic stop on the vehicle and arrested both Ms. Delaney and Andrew. Officers transported the siblings back to the house, which was owned by their mother, and executed a search warrant. According to a detective, their mother was cooperative and directed the police to the southeast bedroom.

{¶ 3} Upon searching the bedroom, the police discovered methamphetamine, heroin, marijuana, digital scales, thousands of dollars in cash, and a loaded gun. The police found the loaded gun, as well as two digital scales, inside of a purse, and discovered heroin and marijuana-as well Ms. Delaney's credit card, insurance card, and social security card-inside the pocket of a pair of jeans. A detective testified that a large portion of the drugs were in plain sight on top of a dresser, and that the police discovered Ms. Delaney's driver's license in a cup on top of that same dresser. The detective testified that the scene was indicative of drug trafficking, as opposed to use, given the amount of drugs present, which he described as "a dealer's amount of dope[,]" the number of small baggies containing pre-measured drugs, the large amount of cash present ($8,322), and the presence of digital scales. The detective further testified that the police discovered no evidence indicating use, such as burnt spoons, needles, or straws.

{¶ 4} Another detective testified that Ms. Delaney admitted that it was her bedroom, and that the jeans-as well as the marijuana inside the pocket-were hers. She, however, denied ownership of the heroin. That detective also testified that Andrew admitted that the drugs were his. Andrew later recanted, testifying that he only admitted that the drugs were his because he did not want his mother and sister to go to jail. Andrew further testified that he did not know whose drugs they were, or whose gun it was, and surmised that it could have belonged to one of Ms. Delaney's friends. Ms. Delaney exercised her right to not testify.

{¶ 5} The jury ultimately found Ms. Delaney guilty of aggravated trafficking in drugs (methamphetamine), aggravated possession of drugs (methamphetamine), trafficking in heroin, and possession of heroin. The trial court merged the respective possession convictions with the trafficking convictions, and the State elected to proceed with sentencing on the trafficking convictions. The trial court imposed two-year sentences on each trafficking count and ordered the sentences to run concurrently. Ms. Delaney now appeals, raising four assignments of error for our review. For ease of consideration, we will address Ms. Delaney's second assignment of error first.

II.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED WHEN IT OVERRULED A TIMELY DEFENSE MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AS THERE WAS NOT SUFFICIENT EVIDENCE PRESENTED BY THE STATE OF OHIO TO ESTABLISH A PRIMA FACIE CASE OF THE CRIMES CHARGED TO WARRANT THE CASE BEING SUBMITTED TO THE JURY.

{¶ 6} In her second assignment of error, Ms. Delaney asserts that her convictions were not supported by sufficient evidence. We disagree.

{¶ 7} Whether a conviction is supported by sufficient evidence is a question of law, which we review de novo. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In making this determination, we must view the evidence in the light most favorable to the prosecution:

An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. [**5] The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 8} Regarding Ms. Delaney's possession convictions, Section 2925.11(A) provides that "[n]o person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog." "This Court has repeatedly held that a person may knowingly possess a substance or object through either actual or constructive possession." (Internal quotations and citations omitted.) State v. Ibrahim , 9th Dist. Medina No. 12CA0048-M, 2013-Ohio-983, 2013 WL 1095443, ¶ 8. "Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession." (Internal quotations and citations omitted.) Id. ; State v. Tucker , 2016-Ohio-1353, 62 N.E.3d 903, ¶ 21. "This Court continues to recognize that the crucial issue is not whether the accused had actual physical contact with the article concerned, but whether the accused was capable of exercising dominion [and] control over it." (Internal quotations and citations omitted.) Ibrahim at ¶ 8. Notably, "[c]ircumstantial evidence is itself sufficient to establish dominion and control over the controlled substance." State v. Hilton , 9th Dist. Summit No. 21624, 2004-Ohio-1418, 2004 WL 573838, ¶ 16.

{¶ 9} Here, the State presented evidence tying Ms. Delaney to the bedroom where the police found the heroin and methamphetamine, as well as evidence indicating that the drugs were found in and around her personal belongings (e.g., in her jeans and on top of a dresser next to her driver's license). Thus, there was circumstantial evidence indicating that Ms. Delaney knowingly exercised dominion and control over the heroin and methamphetamine. State v. Rowe , 9th Dist. Summit No. 27870, 2016-Ohio-5395, 2016 WL 4382784, ¶ 21 ("There was evidence that [the defendant] lived at the residence, and there was also evidence tying [the defendant] to the bedroom where the heroin * * * w[as] found. * * * Thus, there was circumstantial evidence that [the defendant] knowingly exercised dominion and control over the heroin * * *."). Viewing the evidence presented in a light most favorable to the State, we conclude that sufficient circumstantial evidence existed to support Ms. Delaney's possession convictions.

{¶ 10} Regarding Ms. Delaney's trafficking convictions, Section 2925.03(A) provides that "[n]o person shall knowingly * * * [s]ell or offer to sell a controlled substance or a controlled substance analog * * * [or] [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person."

{¶ 11} "Circumstantial evidence has long been used to successfully support drug trafficking convictions." State v. Washington , 6th Dist. Ottawa No. OT-12-032, 2014-Ohio-1008, 2014 WL 1343696, ¶ 36. To that end, "[t]his Court has held that the convergence of illegal drugs, drug paraphernalia (including baggies), and large sums of cash permit a reasonable inference that a person was preparing drugs for shipment." State v. Fry , 9th Dist. Summit No. 23211, 2007-Ohio-3240, 2007 WL 1827578, ¶ 50 ; State v. Rutledge , 6th Dist. Lucas No. L-12-1043, 2013-Ohio-1482, 2013 WL 1536919, ¶ 15 (collecting cases and stating that "numerous courts have determined that items such as plastic baggies, digital scales, and large sums of money are often used in drug trafficking and may constitute circumstantial evidence * * *.").

{¶ 12} Here, as previously noted, a detective testified that the scene was indicative of drug trafficking given the amount of drugs present, which he described as "a dealer's amount of dope[,]" the number of small baggies containing pre-measured drugs, the large amount of cash present ($8,322), and the presence of digital scales, which were found in Ms. Delaney's purse. Viewing the evidence presented in a light most favorable to the State, we conclude that sufficient circumstantial evidence existed to support Ms. Delaney's trafficking convictions. Ms. Delaney's second assignment of error is overruled.

ASSIGNMENT OF ERROR I

THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE SINCE THE STATE OF OHIO FAILED TO PROVE EACH AND EVERY ELEMENT OF THE CRIMES CHARGED.

{¶ 13} In her first assignment of error, Ms. Delaney argues that her convictions were against the manifest weight of the evidence. If a defendant asserts that his or her convictions are against the manifest weight of the evidence:

an appellate court must 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 conviction 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).

{¶ 14} Ms. Delaney argues that her convictions were against the manifest weight of the evidence for a variety of reasons. She argues that Andrew was the subject of the police surveillance and that the police were not aware of her-nor had they seen her at the house-prior to the day in question, that she had no drugs on her when the police performed the traffic stop, that there was no evidence indicating how long she had been inside the house, that Andrew was the one using the bedroom where the police found the drugs, and that there was no evidence indicating that she knew, or should have known, that drugs were in the bedroom.

{¶ 15} Ms. Delaney's argument, however, ignores much of the evidence presented at trial. For example, her argument ignores the fact that detectives testified that she told them the bedroom-and the pair of jeans found therein containing heroin and marijuana-were hers, that her social security card, credit card, and insurance card were also in the pocket of the jeans, that her driver's license was in a cup on top of the dresser where the police found drugs, and that the police found the loaded gun and two digital scales inside of a purse, which Andrew indicated belonged to her. Having reviewed the entire record, we cannot say that the jury clearly lost its way such that Ms. Delaney's convictions must be reversed. Ms. Delaney's first assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERR[ ]ED BY PROHIBITING DEFENSE COUNSEL FROM CONDUCTING RECROSS OF A STATE WITNESS WHEN NEW MATERIAL WAS BROUGH[T] UP BY THE PROSECUTOR ON REDIRECT.

{¶ 16} In her third assignment of error, Ms. Delaney argues that the trial court abused its discretion when it prohibited defense counsel from conducting a recross-examination of a witness when the prosecutor brought up new material on redirect. She argues that the prosecutor brought up the issue of DNA evidence, as well as text message extraction, on redirect with one of the detectives, and that neither of these issues was discussed during that detective's initial direct examination.

{¶ 17} As the Ohio Supreme Court has stated, "the opportunity to recross-examine a witness is within the discretion of the trial court." State v. Faulkner , 56 Ohio St.2d 42, 46, 381 N.E.2d 934 (1978). An abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). "Only where the prosecution inquires into new areas during redirect examination must the trial court allow defense the opportunity to recross-examine." Faulkner at 46, 381 N.E.2d 934.

{¶ 18} Here, Ms. Delaney's own trial counsel was the first attorney to raise the issue of DNA evidence with the detective. It was only after her counsel, as well as Andrew's counsel, raised the issue on cross-examination that the prosecutor questioned the detective about DNA evidence on redirect. Thus, we are unpersuaded by her assertion that she did not have an opportunity to cross-examine the detective on the subject of DNA evidence.

{¶ 19} Regarding text message extraction, it is unclear how any information relating to text messages was relevant to this case. Our review of the record indicates that the prosecutor raised the issue on redirect during a hypothetical for the purpose of indicating that, just because it may be possible to obtain certain information during an investigation, it is not always prudent or necessary to do so. Even assuming without deciding that the trial court did err by failing to allow Ms. Delaney's counsel to recross-examine the detective relative to the prosecutor's hypothetical, we fail to see-and she has not established-how this affected the outcome of the trial. Thus, any error in this regard was harmless. Crim.R. 52 ("Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.).

{¶ 20} Ms. Delaney's third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERR[ ]ED BY FAILING TO ALLOW DEFENSE COUNSEL TO CROSS THE CODEFENDANT ON INFORMATION PREVIOUSLY EXCLUDED BY A MOTION IN LIMINE WHEN CODEFENDANT OPENED THE DOOR TO SUCH INFORMATION ON DIRECT.

{¶ 21} In her fourth assignment of error, Ms. Delaney argues that the trial court erred by denying her trial counsel's request to cross-examine Andrew on information that was previously excluded by a motion in limine, but which Andrew "opened the door" on. As the State points out, at trial, Ms. Delaney requested to cross-examine one of the detectives, not Andrew, and proffered testimony from the detective, not Andrew. Because Ms. Delaney's objection at trial, as well as the proffered testimony, related to a detective, not Andrew, she has not preserved that issue as it relates to Andrew on appeal. Accordingly, Ms. Delaney's fourth assignment of error is overruled.

III.

{¶ 22} Ms. Delaney's assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

SCHAFER, J.

TEODOSIO, J.

CONCUR.


text:
    IN RE: M.L., a Minor Child
    [Appeal By B.W., Mother]
    No. 105991
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 1, 2018
   Christina Joliat, P.O. Box 391531, Solon, Ohio 44139, ATTORNEY FOR APPELLANT

Michael C. O'Malley, Cuyahoga County Prosecutor, By: Colleen R. Cassidy Ulrich, County Department of Human Services, Assistant County Prosecutor, 3955 Euclid Avenue, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLEES

Cheryl Rice, Assistant County Prosecutor, 8111 Quincy Avenue, Room 440, Cleveland, Ohio 44104, For C.C.D.C.F.S.

Candace L. Brown, P.O. Box 286, Medina, Ohio 44258, Guardian Ad Litem For Minor Child

Michael S. Weiss, 602 Rockefeller Building, 614 West Superior Avenue, Cleveland, Ohio 44113, For Johnny Litt, Father

BEFORE: Blackmon, J., E.T. Gallagher, P.J., and Jones, J.

JOURNAL ENTRY AND OPINION

PATRICIA ANN BLACKMON, J.:

{¶ 1} Appellant, B.W. (referred to herein as "appellant"), mother of M.L., appeals from the order of the juvenile court that awarded permanent custody of M.L. to the Cuyahoga County Department of Children and Family Services ("CCDCFS"). For the reasons set forth below, we affirm.

{¶ 2} M.L. was born in November 2015, while appellant was incarcerated following her convictions for child endangering and domestic violence. Several days after M.L. was born, CCDCFS filed a dependency complaint, seeking predispositional temporary custody. In relevant part, CCDCFS alleged that two of appellant's other children were also in the custody of CCDCFS, and that M.L.'s alleged father did not establish paternity, has another child who is not in his care, and has not completed case plan services for this child.

{¶ 3} The trial court awarded temporary custody of M.L. to CCDCFS. Appellant requested that the children be placed with the paternal grandmother but her home was unsuitable. No other relatives were available for placement, so M.L. was placed in foster care. CCDCFS subsequently implemented a case plan requiring appellant to show that she could meet M.L.'s basic needs, and to attend anger management classes, counseling, and parenting classes. A guardian ad litem ("GAL") was appointed for the child.

{¶ 4} Following a hearing on March 7, 2016, the trial court determined that M.L. is a dependent child. After subsequent pretrials, the court also noted that appellant "has been released from incarceration and has failed to appear for * * * hearing."

{¶ 5} On July 5, 2016, CCDCFS filed a complaint for permanent custody of M.L., alleging that appellant has not completed recommended services, has not benefitted from anger management and domestic violence education, did not have stable housing, and could not provide for the basic needs of M.L. CCDCFS further alleged that paternity had been established, but father had not engaged in any case plan services, and only visited with M.L. twice.

{¶ 6} On December 29, 2016, appellant filed a motion requesting that her maternal cousin, A.M., be appointed legal custodial for M.L. After speaking with A.M. on several occasions and visiting her home twice, the GAL issued a report that included the following:

[A.M.] is nineteen years old. She has a daughter, who is seven months old. When the [GAL] first visited [A.M.] in January 2017, her three bedroom apartment was nearly empty. She had one piece of furniture, a blow-up mattress in her bedroom. Social Worker Olivia Goins-Jordan helped [A.M.] obtain some furniture for her home.
When [GAL] visited the home again in March 2017, [A.M.] had only a couch and a chair in her living room, as well as a toddler bed. [A.M.] was only working sporadically as a home health aide. She said at the time that she was working part-time and was in the process of finding another job. At that time, the [GAL] read through [A.M.'s] lease to her apartment. Her lease was obtained in October 2016 through the Violence Against Women and Department of Justice Reauthorization Act of 2005. She initially had a female roommate that was later taken off the lease. The [GAL] asked [A.M.] whether she was a victim of domestic violence and generally asked her about how she obtained her housing. [A.M.] denied being a victim of domestic violence and did not offer any further details about her past or background.
Because of [A.M.'s] age, the fact that she has her own daughter to care for, and [A.M.'s] limited work history and stability, the [GAL] has concerns about [A.M.'s] ability to additionally provide for M.L. No other relatives have been identified who are willing and able to care for M.L.
M.L. has remained placed in the same foster home since she was born. She is bonded with her foster parents and has become integrated into their family. The foster parents are interested in adopting M.L.
Based upon the [GAL's] investigation, the [GAL] finds that it is in the best interests of M.L. that CCDCFS be granted permanent custody of her. Although [appellant] has made some progress in alleviating the conditions that caused removal of M.L., by participating in case plan services, [Appellant] does not have furniture or appliances at her current home. [appellant] is unable at this time to provide for M.L.'s basic needs, and it is unclear if or when [appellant] would be able to do so.

{¶ 7} At trial, appellant's former social worker, Catherine Borden ("Borden"), testified that appellant's convictions for child endangering and domestic violence stem from an incident of physical abuse upon M.L.'s brother and he has been removed from appellant's care. M.L.'s sister was removed from the home due to neglect of her medical issues. Borden testified that appellant is currently on parole. Appellant had completed some services as required on her case plan, but did not benefit from them. Appellant does not have her own residence, and has lived with various friends and relatives. With regard to the father, Borden testified that he had established paternity, but he informed Borden that he did not intend to engage in case plan services for M.L. and would instead focus on raising his other children. He rarely visits M.L.

{¶ 8} Appellant's current social worker, Olivia Goins-Jordan ("Goins-Jordan"), testified that as of the time of trial, appellant lived with her fiancé, but their apartment did not have a stove or refrigerator. Appellant indicated that her fiancé's relatives lived upstairs and she had permission to use their appliances. Goins-Jordan also believed that appliances could be obtained through a community collaborative organization. Goins-Jordan opined that appellant is more stable than she had been previously and is appropriate during her visits with M.L. Goins-Jordan also noted that appellant has two part-time jobs and was looking for another job.

{¶ 9} Goins-Jordan testified that M.L. is well-bonded to her foster family, and that her needs were met in that placement. The father did not respond to Goins-Jordan's repeated efforts to contact him, and no other family members were approved for placement.

{¶ 10} With regard to A.M.'s suitability for custody, Goins-Jordan testified that she had been to A.M.'s apartment and found it suitable, and a bedroom was set up for M.L. A.M. is employed and has no criminal history, but she is young and has her own infant.

{¶ 11} A.M. testified that she was recently hired at Wal-Mart and also occasionally works as a home health aide. She lives in subsidized housing. She has visited with M.L. a few times. She stated that she was not willing to facilitate M.L.'s visitation with the father.

{¶ 12} Appellant testified regarding her living conditions. She stated that for the past seven months, she has been living with her fiancé. Their apartment does not have appliances, but appliances are available for her use in an upstairs apartment.

Appellant works 16 hours per week at Burger King and was also hired at another restaurant that has not yet opened. Appellant visits M.L. once a week. She stated that she has completed parenting classes, but she admitted that during a visitation, M.L. fell off a couch and bumped her head while appellant was plugging in her cell phone.

{¶ 13} The GAL testified that she has ongoing concerns about appellant's ability to meet M.L.'s basic needs, and that she does not believe that placement with A.M. is appropriate. The GAL stated that M.L. is in need of a permanent home and that it is in her best interest to award CCDCFS permanent custody.

{¶ 14} On June 23, 2017, the trial court concluded that the allegations of the complaint had been proven by clear and convincing evidence and awarded permanent custody of M.L. to CCDCFS. In relevant part, the court noted:

12. [Appellant's other] children, I.W. and A.W. were committed to the permanent custody of [CCDCFS] on January 15, 2016.
* * *
14. [M.L.] was adjudicated dependent on March 9, 2016 and committed to the temporary custody of [CCDCFS] on March 17, 2016.
* * *
16. [Appellant] did not consistently engage in case plan services until at least November, 2016, even though she was released from prison in February, 2016.
17. * * * Borden testified that she saw no difference in [appellant] from before she went to prison to after she was released.
18. * * * M.L. * * * fell off of the couch and hit her head due to [appellant's] lack of supervision during a visit. * * *
19. * * * [Appellant] was not able to demonstrate that she could meet the basic needs of the child.
20. * * * [There are] no appliances in [Appellant's] home.
21. [Appellant] stated that she was working only 16-17 hours a week at minimum wage. [Appellant] did not work consistently during the life of the case.
* * *
23. Father expressed that he was not willing to engage in case plan services to be unified with M.L.
* * *
26. [A.M.] is nineteen years of age and has her own six month old child for whom she is responsible.
27. [A.M.] testified that she works at Wal-Mart[,] and as a home health aide; however she continued to state that she has only been working at Wal-Mart for about a month and does not have regular work as a home health aide. * * *
28. At the time of the hearing, [A.M.] lived in subsidized housing for which she paid no rent.
29. [A.M.] testified that she would not be willing to facilitate visitation with the child's father, should he request visitation, despite expressing her understanding that parents retain residual rights when custody is granted to another individual.
30. [A.M.] does not have a significant bond with the child as she has only visited with her a few times during [appellant's] visitation.
31. There is not an appropriate relative available for placement or custody of the child.

{¶ 15} The trial court concluded that M.L. could not be placed with either parent within a reasonable time, or should not be placed with either parent, and the grant of permanent custody to the agency is in M.L.'s best interest.

{¶ 16} Within her sole assigned error, appellant asserts that the trial court erred in awarding permanent custody of M.L. to CCDCFS, and in denying the motion to award legal custody of the child to A.M.

Award of Permanent Custody

{¶ 17} "An appellate court will not reverse a juvenile court's termination of parental rights and award of permanent custody to an agency if the judgment is supported by clear and convincing evidence." In re N.B. , 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, 2015 WL 406036, ¶ 48 ; In re M.J. , 8th Dist. Cuyahoga No. 100071, 2013-Ohio-5440, 2013 WL 6572862, ¶ 24. "Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Cross v. Ledford , 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). A reviewing court is required to examine the record to determine whether the trier of fact had sufficient evidence to satisfy the clear and convincing standard. In re T.S. , 8th Dist. Cuyahoga No. 92816, 2009-Ohio-5496, 2009 WL 3321019, ¶ 24.

{¶ 18} In order to terminate parental rights and grant permanent custody to CCDCFS, the court must apply the two-prong test set forth in R.C. 2151.414. First, the court must find by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody to the agency, and one of the factors listed in R.C. 2151.414(B)(1) has been met. The factors for the first part of the test under R.C. 2151.414(B)(1) include the following: (a) the child cannot be placed with either parent within a reasonable period of time or should not be placed with either parent; (b) the child is abandoned; (c) the child is orphaned and no relatives are able to take permanent custody of the child; or (d) the child has been in the temporary custody of one or more public or private children services agencies for 12 or more months of a consecutive 22-month period.

{¶ 19} Under the second part of the test, the court must determine by clear and convincing evidence, that permanent custody is in the best interest of the child in accordance with the factors listed in R.C. 2151.414(D). In re J.H. , 8th Dist. Cuyahoga No. 105078, 2017-Ohio-7070, 2017 WL 3311036, ¶ 39 ; In re J.M. , 8th Dist. Cuyahoga No. 104030, 2016-Ohio-7307, 2016 WL 5940454, ¶ 50. These factors include the child's interactions and relationships, the wishes of the child, the custodial history of the child, the child's need for a legally secure permanent placement and whether that can be achieved without a grant of permanent custody to the CCDCFS, and, in the event that the court determines that the child cannot be placed within either parent within a reasonable time, whether any of the following R.C. 2151.414(E) additional factors apply:

(1) Following the placement of the child outside the home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.
* * *
(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child;
* * *
(5) The parent is incarcerated for an offense committed against the child or a sibling of the child;
(6) The parent has been convicted of or pleaded guilty to an offense under division (A) or (C) of section 2919.22 or under * * * 2929.25 * * * and the child or a sibling of the child was a victim of the offense;
* * *
(11) The parent has had parental rights involuntarily terminated with respect to a sibling of the child pursuant to this section or section 2151.353 or 2151.415 of the Revised Code * * *.
* * *
(16) Any other factor the court considers relevant.

{¶ 20} The existence of one factor alone will support a finding that a child cannot be reunified with the parents within a reasonable time. See In re William S. , 75 Ohio St.3d 95, 99, 661 N.E.2d 738 (1996) ; In re C.F. , 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 50.

{¶ 21} In this case, with regard to the first prong of the two-prong test, the trial court found by clear and convincing evidence that M.L. had been in temporary custody for approximately 18 months preceding the hearing. The court also determined that M.L. cannot be placed with either parent within a reasonable time or should not be placed with the parents. Secondly, the court concluded that the award of permanent custody to CCDCFS is in M.L.'s best interest.

{¶ 22} The record contains clear and convincing evidence that supports the court's determination. It is undisputed that two of appellant's other children are in the permanent custody of CCDCFS. Additionally, appellant has convictions for domestic violence under R.C. 2919.25 and child endangering under R.C. 2919.22, and one of appellant's other children was the victim of those offenses. These factors alone would have supported the trial court's finding that M.L. cannot be placed with the parents within a reasonable period of time or should not be placed with them. In re J.H. , 2017-Ohio-7070, ¶ 22 ; In re J.M. , 2016-Ohio-7307, ¶ 52. R.C. 2151.414(E)(11) ; In re D.G. , 8th Dist. Cuyahoga No. 99587, 2013-Ohio-3537, 2013 WL 4244883, ¶ 16 ; In re M.W. , 8th Dist. Cuyahoga No. 91539, 2009-Ohio-121, 2009 WL 94547, ¶ 49. Further, where this factor is established, the burden is then on the parent to provide clear and convincing evidence to prove that he or she can provide a legally secure permanent placement and adequate care for the health, welfare, and safety of the child. In re E.A. , 9th Dist. Medina No. 12CA0059-M, 2012-Ohio-5925, 2012 WL 6561189, ¶ 14. However, appellant remained unable to provide such an environment by the date of trial. Moreover, in light of all the evidence, the trial court properly found by clear and convincing evidence, that the award of permanent custody to CCDCFS was in M.L.'s best interest in light of appellant's offenses and her lack of suitable housing, and appellant's prior termination of parental rights pertaining to M.L.'s siblings.

Appellant's Motion for Legal Custody to A.M.

{¶ 23} Appellant next argues that the record does not support the termination of parental rights because CCDCFS did not adequately pursue the issue of granting legal custody of the child to A.M.

{¶ 24} We note that the juvenile court is not required to determine by clear and convincing evidence that "termination of appellant's parental rights was not only a necessary option, but also the only option" or that "no suitable relative was available for placement." In re Schaefer , 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 63. Therefore, while a trial court "must find by clear and convincing evidence that the parents are not suitable placement options, the court is not required to invoke the same standard with regard to a [another family member]." In re L.W. , 8th Dist. Cuyahoga No. 104881, 2017-Ohio-657, 2017 WL 712808, ¶ 22, quoting In re A.D. , 8th Dist. Cuyahoga No. 85648, 2005-Ohio-5441, 2005 WL 2600638, ¶ 12. Further, the trial court is not required to consider placing children with a relative prior to granting permanent custody to CCDCFS, and the willingness of a relative to care for a child does not alter what the court must consider in determining permanent custody. In re L.W. at ¶ 38-39. In re L.S. , citing In re Benavides , 8th Dist. Cuyahoga No. 78204, 2001 WL 470177, 2001 Ohio App. LEXIS 2002 (May 3, 2001) ; In re Patterson , 134 Ohio App.3d 119, 129, 730 N.E.2d 439 (9th Dist. 1999).

{¶ 25} Under R.C. 2151.353(A)(3), a court may make an award of legal custody of the children to a person who, prior to the dispositional hearing, files a motion requesting legal custody of the child and signs a statement of understanding for legal custody acknowledging that: (1) it is the person's intent to become legal custodian; (2) the person understands that legal custody is permanent in nature; (3) the person understands that the parents have residual rights, including the right of visitation; and (4) the person must appear in court to affirm these intentions and answer any questions. The trial court is then charged with determining whether the award of legal custody is in the child's best interest, considering all relevant factors. For guidance, the court may look to the factors listed under R.C. 2151.414(D) pertaining to permanent custody cases. In re B.D. , 8th Dist. Cuyahoga No. 105650, 2017-Ohio-8663,, 2017 WL 5626220 ¶ 26 ; In re M.B. , 8th Dist. Cuyahoga No. 105168, 2017-Ohio-7481, 2017 WL 3912794, ¶ 11.

{¶ 26} In this matter, the GAL noted that A.M.'s subsidized apartment was leased through the Violence Against Women and Department of Justice Reauthorization Act of 2005, and that A.M. initially had a female roommate. A.M. denied that she was a victim of domestic violence, but did not offer any further details about her past. Noting A.M.'s young age, limited furnishings, extremely limited work history, and her responsibility in caring for her own young child, the GAL expressed concerns about A.M.'s ability to provide for M.L. Likewise, the trial court noted that A.M. had been working at Wal-Mart for about a month and does not have regular employment in her other job as a home health aide. The court also observed that A.M. would not be willing to facilitate visitation with M.L.'s father, contrary to the provisions of the memorandum of understanding required by R.C. 2151.353. Moreover, the court found that A.M. does not have a significant bond with the child because she has only visited with her a few times during appellant's visitation.

{¶ 27} In accordance with all of the foregoing, a review of the evidence supports the trial court's determination that the award of legal custody to A.M. would not be in M.L.'s best interest, and supports the court's denial of appellant's motion to have legal custody of the child awarded to A.M. Further, the court did not err, during consideration of whether M.L.'s need for a legally secure permanent placement could be achieved without a grant of permanent custody to the agency, when it concluded that placement with A.M. would not be appropriate.

{¶ 28} In accordance with the foregoing, the evidence of record clearly and convincingly supports the award of permanent custody to the CCDCFS.

{¶ 29} The assigned error is overruled.

{¶ 30} Judgment affirmed.

EILEEN T. GALLAGHER, P.J., and LARRY A. JONES, SR., J., CONCUR

      During the pendency of this matter, CCDCFS was awarded permanent custody of appellant's two other children.