source: Caselaw Access Project

author: TIMOTHY P. CANNON, J.

license: Public Domain

text:
    In the MATTER OF: A.J.F., Delinquent Child
    NOS. 2016-L-114 2016-L-115
    Court of Appeals of Ohio, Eleventh District, Lake County.
    Decided March 30, 2018
    Charles E. Coulson, Lake County Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Appellee State of Ohio).
    Christopher J. Boeman, P.O. Box 583, Willoughby, OH 44096 (For Appellant A.J.F.).
    MEMORANDUM OPINION
   TIMOTHY P. CANNON, J.

{¶ 1} This matter involves juvenile delinquency complaints brought against appellant, A.J.F., by the Lake County Court of Common Pleas, Juvenile Division, in case Nos. 15 DL 1878 and 16 DL 92. These cases were never consolidated below.

{¶ 2} On December 14, 2015, a delinquency complaint was filed against appellant in case No. 15 DL 1878, charging him with one count of assault in violation of R.C. 2903.13(A), a first-degree misdemeanor if committed by an adult, and one count of disorderly conduct in violation of R.C. 2917.11(A)(1), a minor misdemeanor if committed by an adult. On January 19, 2016, an unrelated delinquency complaint was filed against appellant in case No. 16 DL 92, charging him with one count of sexual imposition in violation of R.C. 2907.06(A)(1), a third-degree misdemeanor if committed by an adult.

{¶ 3} Both cases came before the magistrate on June 8, 2016. Pursuant to a plea agreement in case No. 15 DL 1878, appellant entered a plea of "true" to the disorderly conduct count. The magistrate accepted the plea, declared appellant a delinquent child as to the charge of disorderly conduct, and dismissed the assault charge.

{¶ 4} Appellant pled "not true" to the sexual imposition count in case No. 16 DL 92, and an adjudication hearing was held before the magistrate. Both the state and appellant presented witness testimony, at the conclusion of which the magistrate declared appellant a delinquent child as to the charge of sexual imposition.

{¶ 5} On June 9, 2016, the Lake County Juvenile Court approved and adopted the magistrate's decisions in both cases.

{¶ 6} On June 20, 2016, in case No. 15 DL 1878, appellant filed objections to the June 8, 2016 magistrate's decision and a motion for leave to supplement the objections. The motion for leave to supplement was granted. Appellant's trial counsel subsequently filed a motion to correct clerical errors in both cases, as the objections should have been filed under case No. 16 DL 92. The Lake County Juvenile Court denied the motion to correct clerical errors on the basis that service was not perfected on all parties. On July 20, 2016, trial counsel filed a renewed motion to correct clerical errors in both cases, which never received a ruling.

{¶ 7} On August 9, 2016, appellant filed supplemental objections to the June 8, 2016 magistrate's decision under both case numbers, although the objections only related to the sexual imposition adjudication in case No. 16 DL 92. On August 23, 2016, the Lake County Juvenile Court considered but overruled appellant's objections and supplemental objections and affirmed its June 9, 2016 entry adopting the magistrate's finding of delinquency on the charge of sexual imposition.

{¶ 8} On September 13, 2016, the Lake County Juvenile Court ordered both cases to be transferred for final disposition to the Geauga County Court of Common Pleas, as appellant was a resident of Geauga County. See Juv.R. 11 ; R.C. 2151.271. Certified copies of all legal and social records pertaining to the Lake County Juvenile Court proceedings were to accompany the transfer. Id. The Geauga County Court of Common Pleas was then required to "proceed as if the original complaint had been filed in that court." Id.

{¶ 9} On September 16, 2016, trial counsel filed, in the Lake County Juvenile Court, a motion to withdraw as appellant's counsel and to appoint Attorney Christopher Boeman for purposes of appeal. The Lake County Juvenile Court purported to grant this motion on September 20, 2016. The order was of no effect, however, as there was no longer a case before the Lake County Juvenile Court upon which it had authority to act. See, e.g., In re Tyler , 4th Dist. Pickaway No. 92CA22, 1992 WL 329413, *1 (Oct. 28, 1992).

{¶ 10} On November 7, 2016, Attorney Boeman filed two notices of appeal with the clerk of the Lake County Juvenile Court. The clerk subsequently transmitted the records from the Lake County Juvenile Court to this court, pursuant to App.R. 10. The records from the Geauga County Court, which would contain all proceedings subsequent to the transfer, are therefore not before this court.

{¶ 11} The notices of appeal, assigned case Nos. 2016-L-114 and 2016-L-115, are essentially identical. They both identify the trial court as "Lake & Geauga County Court of Common Pleas, Juvenile Divisions," and they both identify the trial court case number as "15 DL 1878, 16 DL 92 & 16JD321." Attached to both notices of appeal is a copy of the same entry from the Geauga County Court in case No. 16JD321, which was issued on October 7, 2016. The entry is signed by the probate/juvenile judge of Geauga County and enters a disposition as to the delinquent child adjudication on the charge of sexual imposition from Lake County Juvenile Court case No. 16 DL 92. Also attached to both notices of appeal is a copy of the August 23, 2016 entry from the Lake County Juvenile Court overruling the objections to the magistrate's finding on the sexual imposition complaint. There is no entry attached regarding Lake County Juvenile Court case No. 15 DL 1878, nor is there any indication as to the disposition of the disorderly conduct count. The notices of appeal both state:

Notice is hereby given that [A.J.F.] appeals to the Eleventh District Court of Appeals from the trial court Judgment Entry time-stamped 10/7/2016 at 3:29 PM. Disposition from the Geauga County Court of Common Pleas, Juvenile Division, of a case certified from the Lake County Court of Common Pleas, Juvenile Division. Judgment Entry from Lake County involved the Judge's overruling of the minor child's objections to a finding of 'true' after a trial for Gross [sic] Sexual Imposition by a Magistrate.

Additionally, both notices of appeal include a copy of an October 13, 2016 entry issued by the Geauga County Court, appointing Attorney Boeman to represent appellant for the purposes of appeal in Geauga County case No. 16JD321.

{¶ 12} The only difference between the two notices of appeal is that 2016-L-114 includes a copy of the complaint filed in Lake County under case No. 15 DL 1878, and 2016-L-115 includes a copy of the complaint filed in Lake County under case No. 16 DL 92.

{¶ 13} On December 1, 2016, this court sua sponte consolidated the two appellate cases for purposes of briefing, oral argument, and disposition. It is apparent upon further review that one of these appellate cases should have been dismissed, as they are identical notices attempting to appeal from the same October 7, 2016 entry of the Geauga County Court that entered a disposition on the sexual imposition charge. See Concord Tp. Trustees v. Hazelwood Builders, Inc. , 11th Dist. Lake No. 98-L-176, 1998 WL 964507, *2 (Dec. 4, 1998) ("A duplicate appeal is subject to dismissal."); see also State v. Gibbs , 11th Dist. Geauga No. 2016-G-0059, 2016-Ohio-2693, 2016 WL 1638748.

{¶ 14} It is further apparent that the records before us for review, transmitted from the Lake County Juvenile Court, do not contain a final appealable order, as the cases were transferred to the Geauga County Court following adjudication but prior to disposition. See In re Sekulich , 65 Ohio St.2d 13, 14, 417 N.E.2d 1014 (1981) (citations omitted) ("It is rudimentary that a finding of delinquency by a juvenile court, unaccompanied by any disposition thereof, is not a final appealable order.").

{¶ 15} Certain statutory requirements must be met before the jurisdiction of an appellate court is properly invoked. R.C. 2505.04 provides, in pertinent part: "An appeal is perfected when a written notice of appeal is filed, in the case of an appeal of a final order, judgment, or decree of a court, in accordance with the Rules of Appellate Procedure * * * and no step required to be taken subsequent to the perfection of the appeal is jurisdictional." An appeal as of right is perfected pursuant to Rules 4(A) and 3(A) of Ohio Appellate Procedure, which provide, respectively, that "a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry," and "[a]n appeal as of right shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4."

{¶ 16} "Filing is accomplished when actual and timely delivery is made to the correct tribunal." Welsh Dev. Co., Inc. v. Warren Cty. Regional Planning Comm. , 128 Ohio St.3d 471, 2011-Ohio-1604, 946 N.E.2d 215, ¶ 38. "The filing of notice of appeal, in the court from which the appeal is taken , within the time prescribed by law, is the only jurisdictional step necessary to perfect an appeal and where such notice is not filed within such time the reviewing court is without jurisdiction to consider the appeal." State ex rel. Curran v. Brookes , 142 Ohio St. 107, 50 N.E.2d 995 (1943), paragraph seven of the syllabus (emphasis added); see also State v. Nickles , 159 Ohio St. 353, 360-361, 112 N.E.2d 531 (1953) and State v. Sanchez , 22 Ohio App.2d 145, 146, 259 N.E.2d 139 (3d Dist. 1970) (a criminal appeal as of right "is deemed perfected when a notice of appeal is timely filed with the lower court").

{¶ 17} Here, the Geauga County Court became the trial court as of September 13, 2016, when the case was transferred; nothing remained before the Lake County Juvenile Court upon which it had authority to act. The Geauga County Court issued the final appealable order in this case when it entered a disposition on the sexual imposition charge. According to the copy of the entry attached to the notice of appeal, this occurred on October 7, 2016. The notice of appeal was therefore required to be filed in the Geauga County Court within 30 days thereafter. Although it appears the notice of appeal was filed within the time prescribed by law, it was filed in an incorrect tribunal, i.e., it was not filed in the court from which the appeal was taken. Thus, our appellate jurisdiction was not properly invoked. Compare Tyler , supra , at *1 (denying jurisdiction where the juvenile erroneously filed a notice of appeal with the county that adjudicated him delinquent rather than the county that entered the final disposition).

{¶ 18} We recognize that courts sometimes find an end-around when faced with jurisdictional dilemmas that arise from filing defects. The Fourth Appellate District accepted a miscaptioned notice of appeal that was file-stamped in the court of appeals, rather than in the trial court, because "the clerk of each court of common pleas serves as the clerk for the court of appeals for all appellate cases originating from courts in that county. When appellant handed his notice of appeal to the clerk of courts, or one of her deputies, he handed the notice of appeal to a person who serves both as the clerk of the trial court and the clerk of the appellate court." State v. Hughes , 4th Dist. Scioto No. 1937, 1991 WL 286053, *2 (Dec. 24, 1991) ; see also Perry v. Baskey , 90 Ohio App. 338, 340, 106 N.E.2d 790 (6th Dist. 1951) (similarly accepting a notice of appeal as "filed in the right church but in the wrong pew"). Our court has also accepted appeals as timely filed in identical situations, although our entries have not been published for citation purposes.

{¶ 19} The Tenth Appellate District accepted a notice of appeal that was filed in the court of common pleas instead of the probate court in the same county. The appellate court reasoned that, because "the notice of appeal was clearly labelled as being in the probate division and bore the proper probate division case number, it was a clerical error for the clerk of the general division to file and docket the notice of appeal[.]" In re Estate of Tague , 33 Ohio App.3d 142, 143, 514 N.E.2d 910 (10th Dist. 1986).

{¶ 20} And, in the Supreme Court of New York, the Appellate Division accepted an appeal that was erroneously filed in the improper county, because that clerk subsequently certified the notice of appeal to the clerk of the correct county and the appellee received timely notice. Sinicropi v. Town of Indian Lake , 148 A.D.2d 799, 799-800, 538 N.Y.S.2d 380 (1989).

{¶ 21} Each of these situations is distinguishable from the case sub judice. First, appellate counsel did not file the notice of appeal with this court, as opposed to the trial court, as in Hughes . If that had occurred, we could have directed our clerk, whom we share with the Geauga County Court, to refile the notice of appeal in the common pleas court and transmit the Geauga County Court record for our review. Second, the notice of appeal was not accepted for filing by the wrong division of the proper court, as in Tague . If that had occurred, we could consider it a clerical error made by the clerk, not a filing error made by counsel. Third, the Lake County Juvenile Court clerk did not discover the error and certify the notice of appeal to the Geauga County Court clerk, as in Sinicropi . If that had occurred, the Geauga County Court would have received notice of the appeal, and the record would have been transmitted to this court for our review.

{¶ 22} Additionally, because we do not have a final appealable order before us-nor do we have a complete record before us-we cannot even attempt to conduct a proper appellate review of this particular case. Upon his review of the Lake County Juvenile Court record, appellate counsel filed a motion for leave to withdraw as appellant's appointed counsel, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

{¶ 23} As outlined in Anders , "if counsel finds his client's case to be wholly frivolous, counsel should advise the court and request permission to withdraw; * * * the request to withdraw must be accompanied by a brief referring to anything in the record that might arguably support the appeal; [and] * * * time must be allowed for the client to raise any points he chooses." State v. Spears , 11th Dist. Ashtabula No. 2013-A-0027, 2014-Ohio-2695, 2014 WL 2882943, ¶ 5, citing Anders . The appellate court must then conduct "a full examination of all the proceedings, to decide whether the case is wholly frivolous." Anders , supra , at 744, 87 S.Ct. 1396.

{¶ 24} In his motion to withdraw, appellate counsel contends he "is unable to find any meritorious issue in this record upon which to base an appeal," and he did not propose any arguable assignments of error in support of the appeal. We granted appellant 30 days to file a brief or memorandum that raises any additional arguments in support of the appeal, but appellant did not do so. Therefore, because we do not have the entire record before us, which may include transcripts of the dispositional hearing or others, we cannot conduct a full examination of the proceedings to determine whether the case is wholly frivolous.

{¶ 25} Finally, the statutory filing requirements are essential not only to put the appellee on notice that an order has been appealed but also to provide such notice to the court that issued the order. See, e.g. , Roberts v. Pleasant Local School Dist. Bd. of Edn. , 3d Dist. Marion No. 9-11-04, 2011-Ohio-4560, 2011 WL 4011409, ¶ 13 (providing that R.C. 2505.04 is a jurisdictional statute, although in the context of an administrative appeal, because it provides notice to the tribunal that an appeal of its decision has been filed). One reason it is crucial for the lower court to receive notice is because "[o]nce a case has been appealed, the trial court loses jurisdiction except to take action in aid of the appeal. The trial court retains jurisdiction over issues not inconsistent with the appellate court's jurisdiction to reverse, modify, or affirm the judgment appealed from." In re S.J. , 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 9 (internal citations omitted).

{¶ 26} The filing error at issue here involved an incorrect tribunal, as opposed to a late filing, thus the Geauga County Court never received notice that its final judgment was under review. Even if appellant's sentence was stayed pending appeal (which it does appear occurred from the copy of the entry attached to the notice of appeal), the Geauga County Court was not aware that an appeal had been filed. It is altogether possible that the Geauga County Court lifted the stay and that appellant has served his sentence, thus rendering his appeal, or at least a portion thereof, moot. See, e.g. , In re A.J. , 1st Dist. Hamilton No. C-140246, 2014-Ohio-5566, 2014 WL 7215190, ¶ 5-8 (applying the mootness doctrine to a juvenile delinquent who had served his sentence); see also In re G.L.L. , 11th Dist. Geauga Nos. 2014-G-3189, 2015-Ohio-3539, 2015 WL 5095950, ¶ 48. It is simply impossible for this court to glean that information from the record as it stands before us.

{¶ 27} Although the procedural quagmire within which we find ourselves has caused an unfortunate delay in this case, appellant does have recourse.

{¶ 28} In certain circumstances, this court has found it necessary and appropriate to take judicial notice of a trial court docket. See Watkins v. Pough , 11th Dist. Trumbull No. 2016-T-0100, 2017-Ohio-7026, 2017 WL 3226047, ¶ 39 ; Hutz v. Gray , 11th Dist. Trumbull No. 2008-T-0100, 2009-Ohio-3410, 2009 WL 2005361, ¶ 40. Upon review of the Geauga County Court docket in case No. 16JD321, it appears this matter was transferred back to the Lake County Juvenile Court on May 24, 2017, due to a change in appellant's residency. Thus, certified copies of all legal and social records pertaining to the Geauga County Court proceedings were to accompany the transfer, and the Lake County Juvenile Court is now required to proceed, once again, as if the original complaint had been filed in that court. See Juv.R. 11 ; R.C. 2151.271.

{¶ 29} App.R. 5(A)(1)(b) allows for delayed appeals that originate from delinquency proceedings. An appeal as of right "may be taken by a defendant with leave of the court to which the appeal is taken" "after the expiration of the thirty day period provided by App.R. 4(A)." Id. App.R. 5(A)(2) describes the process by which an appellant is to file a motion to obtain such leave, including an instruction to "set forth the reasons for the failure of the appellant to perfect an appeal as of right."

{¶ 30} The reasons for appellant's failure to perfect his appeal as of right are abundantly clear, as outlined above, none of which can be attributed to the fault of appellant. Therefore, although we have no alternative but to dismiss this matter for the reasons stated herein, appellant may seek leave to file a delayed appeal in the correct tribunal, which is now the Lake County Juvenile Court, if he so desires and if counsel deems it advisable upon his or her review of the record.

{¶ 31} If counsel determines an appeal should be taken, appellant's motion for a delayed notice of appeal and the notice of appeal should be filed with the clerk of the Lake County Court of Common Pleas, Juvenile Division, in the form prescribed by App.R. 3, as soon as practicable after the date of this memorandum opinion. Pursuant to App.R. 5(A)(2), a copy of such notice of appeal should also be filed in this court. See also R.C. 2505.04 ("If a leave to appeal from a court first must be obtained, a notice of appeal also shall be filed in the appellate court."); State v. Fisher , 46 Ohio App.2d 279, 349 N.E.2d 327 (10th Dist. 1975), syllabus.

{¶ 32} At that juncture, this court, based on the unique circumstances of this case, will consider the motion. See State v. Dench , 113 Ohio App. 329, 333, 175 N.E.2d 188 (1st Dist. 1959) ("The discretion to be exercised upon a motion for leave to appeal would seem to be a broad discretion based on fundamental justice, having regard not only for the appellant but also for the public.").

{¶ 33} Appeals dismissed.

THOMAS R. WRIGHT, P.J., concurs,

COLLEEN MARY O'TOOLE, J., dissents with a Dissenting Opinion.

{¶ 34} I respectfully dissent.

{¶ 35} The Ohio Supreme Court "has long recognized that, in construing the Rules of Appellate Procedure, the law favors and protects the right of appeal and that a liberal construction of the rules is required in order to promote the objects of the Appellate Procedure Act and to assist the parties in obtaining justice." Maritime Mfrs., Inc. v. Hi-Skipper Marina , 70 Ohio St.2d 257, 258, 436 N.E.2d 1034 (1982), citing In re Guardianship of Love , 19 Ohio St.2d 111, 115, 249 N.E.2d 794 (1969). " 'The legislative purpose throughout the act was obviously to liberalize procedure upon appeals and to prevent technicalities from being fatal to substantive rights.' " Id. , quoting Couk v. Ocean Accident & Guar. Corp., Ltd. , 138 Ohio St. 110, 115, 33 N.E.2d 9 (1941).

{¶ 36} In that spirit, to avoid further unnecessary delay, and under the unique circumstances caused by the application of Juv.R. 11 in this case, I would accept the appeal assigned Case No. 2016-L-115 as having been timely filed in the correct tribunal. The appeal assigned Case No. 2016-L-114 should be dismissed as a duplicate appeal. See Concord Tp. Trustees , supra , at *2.

{¶ 37} It is apparent that appellant's current counsel of record did not review the portion of the record from the Geauga County Court prior to concluding there are no meritorious issues upon which to base an appeal. This writer would therefore grant Attorney Boeman's motion to withdraw, appoint new counsel for purposes of appeal, and temporarily remand for the clerk of courts for the Lake County Court of Common Pleas, Juvenile Division, to certify and retransmit the record, including all legal and social records pertaining to the proceedings that were held in the Geauga County court. Following the retransmission, this writer believes this court should then issue an order outlining an expedited briefing schedule.

{¶ 38} I respectfully dissent.

      We note there is current disagreement amongst Ohio appellate districts, and dissent within this court, as to whether the Anders procedure is the appropriate approach to take in these circumstances. It is, nevertheless, the precedent of this district and most others in Ohio, to follow the procedure outlined in Anders . See, e.g. , State v. Shannon , 11th Dist. Trumbull No. 2017-T-0012, 2017-Ohio-9344, 2017 WL 6729832 (O'Toole, J., dissenting); see generally State v. Wilson , 4th Dist. Lawrence, 2017-Ohio-5772, 83 N.E.3d 942.


author: M. POWELL, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. C.J., Defendant-Appellant.
    NO. CA2017-06-082
    Court of Appeals of Ohio, Twelfth District, Warren County.
    April 2, 2018
    David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
    Christo Lassiter, 839 Dunore Road, Cincinnati, Ohio 45220-1416, for defendant-appellant
   M. POWELL, J.

{¶ 1} Defendant-appellant, C.J., appeals a decision of the Warren County Court of Common Pleas, Juvenile Division, adjudicating him a delinquent child.

{¶ 2} On June 20, 2016, 14-year-old appellant, 15-year-old B.N. (the "victim"), and two other male juveniles played a basketball game at the Mason Community Center. After completion of the game, appellant and the victim played a one-on-one game, while the other two boys watched. Appellant and the victim were experienced basketball players and knew each other from other games at the community center. As the game progressed, it became very physical, with each boy taunting and aggressively fouling the other. At one point during the game, the victim hit his knee on the floor and it began to bleed. Some of the other boys who were watching the game from a bench on the sidelines began laughing at the victim. In response, the victim threw the ball at one of his friends and pushed another boy off the bench. The video system at the community center recorded the victim doing so.

{¶ 3} By all accounts, the game was very competitive and the fouls became increasingly physical. The game ended with a confrontation between appellant and the victim. As the victim went for a lay-up, appellant knocked him to the ground. Appellant then "got into" the victim's face and taunted him. Fed up, the victim got up and as he went to get his bag and leave the court, pushed appellant out of the way. Appellant testified that the victim was angry and that in addition to shoving him, the victim also kicked appellant as hard as he could in the shin. The victim denied kicking appellant and stated that any kick was accidental. In response to the victim's actions, appellant punched him in the face, causing injury. Appellant immediately apologized to the victim.

{¶ 4} Mason police were called and Police Officer Jonathan Stafford responded. The officer spoke to the victim and various witnesses and viewed the community center video. Although the video did not show the actual altercation between appellant and the victim, it showed the victim throwing the ball at one of his friends and pushing another boy off the bench as they watched the game. Officer Stafford found appellant and his mother sitting on a bench, outside of the community center office. Appellant's mother gave permission for the officer to speak with appellant. Appellant told the officer what happened and provided a written statement to the officer. No Miranda warnings were given. After appellant provided his statement, he was not arrested and he and his mother left the community center.

{¶ 5} On June 24, 2016, Officer Stafford filed a complaint alleging appellant was a delinquent child for having committed an act that would constitute assault in violation of R.C. 2903.13(A), if committed by an adult. Five days later, appellant's trial counsel sent a letter to the prosecutor requesting discovery and asking that all evidence be preserved, including the community center video. Trial counsel also delivered the request for preservation of the video to the Mason Police Department. Officer Stafford was a new police officer and was unaware that any video from the community center was fed to the police department. The record does not reflect whether the prosecutor communicated with Officer Stafford about the defense request for the preservation of the video. In any event, Officer Stafford failed to request that the video be preserved. Consistent with its practice, the community center recorded over the video.

{¶ 6} Appellant moved to dismiss the case on the ground the state violated his due process rights by failing to preserve the community center video. Appellant argued that the video was necessary to establish that he acted in self-defense when he punched the victim. Appellant further moved to suppress his statements to Officer Stafford on the ground he was never advised of his Miranda rights. On December 5, 2016, a juvenile court magistrate held a hearing on appellant's motions to dismiss and suppress, and then proceeded to an adjudicatory hearing on the assault charge. Prior to the hearing on the motion to dismiss, the parties entered into the following Agreed Upon Stipulation of Fact regarding the video:

Mason Police Videotape taken at the Mason Community Center in Mason on 6-21-16 [sic], at approximately 1326 hours, and referenced in [Mason] Police Incident Report * * * shows [B.N.] (alleged victim) shoving a kid on the bench, as well as throwing a basketball at another kid. This occurred approximately 1-2 minutes prior to the incident.

{¶ 7} The magistrate denied appellant's motion to suppress, finding that appellant was not in custody when he talked to Officer Stafford, and therefore, Miranda warnings were not required. The magistrate further denied appellant's motion to dismiss. The magistrate found that the video was not materially exculpatory, and therefore, appellant was required to show the state acted in bad faith in failing to preserve the video. The magistrate found that the state did not act in bad faith. The magistrate further found that appellant was able to obtain comparable evidence to the video, given the parties' stipulation as to what was shown on the video, Officer Stafford's testimony, and the fact appellant was "able to call witnesses who were actually present." Appellant filed objections to the magistrate's denial of his motions to dismiss and suppress, which were overruled by the juvenile court.

{¶ 8} On January 19, 2017, the magistrate adjudicated appellant delinquent for committing the lesser included offense of disorderly conduct in violation of R.C. 2917.11(A)(1). The magistrate found that appellant failed to prove he acted in self-defense when he punched the victim. The magistrate further found that the victim's kick, "even if intentional[,] was minor." Appellant filed objections to the magistrate's order, which were overruled by the juvenile court.

{¶ 9} Appellant now appeals, raising three assignments of error.

{¶ 10} Assignment of Error No. 1:

{¶ 11} THE COURT FATALLY ERRED IN FAILING TO DISMISS THE CHARGE AFTER THE STATE FAILED TO PRODUCE MATERIALLY EXCULPATORY VIDEO EVIDENCE TIMELY REQUESTED BY DEFENSE COUNSEL.

{¶ 12} Appellant argues that his due process rights were violated when the state failed to preserve the community center video, and thus, the juvenile court erred in denying his motion to dismiss. Appellant asserts that the video was materially exculpatory because it would have shown how angry the victim was when he threw the ball at one of his friends and pushed another off the bench minutes before his altercation with appellant. Appellant claims the video would have rebutted the victim's assertion that his kick was merely accidental, and was thus necessary to establish that appellant acted in self-defense when he punched the victim.

{¶ 13} When reviewing a trial court's decision regarding a motion to dismiss, this court applies a de novo standard of review. State v. Shalash , 2015-Ohio-3836, 41 N.E.3d 1263, ¶ 21. We thus give no deference to the trial court's decision. State v. Hubbard , 12th Dist. Preble No. CA2004-12-018, 2005-Ohio-6425, 2005 WL 3276169, ¶ 6.

{¶ 14} Depending on the nature of the evidence, different tests are applied to determine whether the state's failure to preserve evidence amounts to the level of a due process violation. State v. Powell , 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 73 ; State v. Gatliff , 12th Dist. Clermont No. CA2012-06-045, 2013-Ohio-2862, 2013 WL 3368572, ¶ 40. The state's failure to preserve "materially exculpatory" evidence, regardless of whether such failure was done in good faith or bad faith, violates due process. Gatliff at ¶ 40. Evidence is constitutionally material when it possesses "an exculpatory value that was apparent before the evidence was destroyed, and is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id.

{¶ 15} A different rule is used when the evidence is merely "potentially useful." Id. at ¶ 41. Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. Id. Bad faith implies more than bad judgment or negligence; rather, it imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive, or ill will partaking of the nature of fraud. Id.

{¶ 16} A defendant generally bears the burden of showing that the evidence was materially exculpatory. Gatliff , 2013-Ohio-2862, 2013 WL 3368572 at ¶ 40. However, "where a defendant moves to have evidence preserved and that evidence is nonetheless destroyed by the state in accordance with its normal procedures," the burden shifts back to the state to prove that the evidence was not exculpatory. State v. Benton , 136 Ohio App.3d 801, 805, 737 N.E.2d 1046 (6th Dist.2000). See also Columbus v. Forest , 36 Ohio App.3d 169, 522 N.E.2d 52 (10th Dist.1987) ; State v. Palivoda , 11th Dist. Ashtabula No. 2006-A-0019, 2006-Ohio-6494, 2006 WL 3544825 ; and State v. McDade , 12th Dist. Warren Nos. CA2003-09-096 and CA2003-09-097, 2004-Ohio-3672, 2004 WL 1543190. "However, if the state fails to carry this burden, the defendant must still show that the evidence could not have been obtained by other reasonable means." Benton at 805-806, 737 N.E.2d 1046. Because the video was recorded over after appellant has filed his motion to preserve the video, the burden was on the state to show that the video was not exculpatory.

{¶ 17} We find that appellant's due process rights were not violated when the state failed to preserve the community center video because the video was not exculpatory. The video did not depict the altercation between appellant and the victim. Rather, it showed the victim throw the ball at one of his friends and push another boy off the bench a few minutes before the altercation. The exculpatory value of the video was also not apparent before the evidence was destroyed. Appellant argued that he punched the victim in self-defense in part because the victim's behavior toward the spectators led him to believe the victim would continue his behavior and further assault him after he kicked him. The juvenile court rejected the argument, finding that the victim's behavior towards his friends was only slightly probative as it was unclear whether the victim's actions resulted from ill intent or frustration. While the video may have shed some light on the victim's emotional state a few minutes prior to the altercation and removed the ambiguity referred to by the juvenile court, the video was only tangential to the altercation and was therefore not exculpatory.

{¶ 18} We further find that appellant could have obtained and in fact was able to obtain comparable evidence by other reasonably available means. The parties entered into an agreed stipulation of facts which described what the video showed, to wit, the victim's behavior minutes before the altercation. Officer Stafford testified at the hearing on the motion to dismiss. Having viewed the video before it was recorded over, the officer testified that the video showed that the victim was frustrated with the way he was playing and the fact he was losing the game. The officer further stated he did not know whether the victim was angry. The officer also testified at trial. However, trial counsel never questioned him as to the contents of the video or the victim's behavior prior to the altercation.

{¶ 19} At trial, the victim testified he acted out against his friends out of frustration because they were laughing at him. One of those friends was G.W. who testified at trial and was thus available to answer questions about the victim's demeanor. The record further shows that there were three other eye witnesses present during the game that trial counsel could have called to testify. However, they did not testify at trial.

{¶ 20} Because the community center video was not exculpatory and appellant was able to obtain comparable evidence by other reasonable means, we find that appellant's due process rights were not violated when the state failed to preserve the video after receiving appellant's request that it be preserved. See Benton , 136 Ohio App.3d 801, 737 N.E.2d 1046. The juvenile court, therefore, did not err in denying appellant's motion to dismiss.

{¶ 21} Appellant's first assignment of error is overruled.

{¶ 22} Assignment of Error No. 2:

{¶ 23} THE TRIAL COURT FATALLY ERRED IN FAILING TO SUPPRESS THE STATEMENT OF [C.J.] AND THE ENTIRE POLICE REPORT AND TESTIMONY OF OFFICER STAFFORD DUE TO THE ABSENCE OF MIRANDA WARNINGS.

{¶ 24} Appellant argues the juvenile court erred in denying his motion to suppress statements he made to Officer Stafford at the community center. Specifically, appellant argues that his statements, as well as the police report and the officer's testimony, should have been suppressed because appellant was never advised of his Miranda rights. Appellant asserts that because he was not free to go, "that is arrest/custody enough for Miranda purposes."

{¶ 25} An appellate court's review of a motion to suppress presents a mixed question of law and fact. In re J.S. , 12th Dist. Clermont No. CA2011-09-067, 2012-Ohio-3534, 2012 WL 3157149, ¶ 10 ; State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. In re J.S. at ¶ 10 ; Burnside at ¶ 8. Accordingly, when reviewing a trial court's decision on a motion to suppress, an appellate court accepts the trial court's findings of fact if they are supported by competent, credible evidence. In re J.B. , 12th Dist. Butler No. CA2004-09-226, 2005-Ohio-7029, 2005 WL 3610482, ¶ 52. However, an appellate court reviews de novo whether the trial court has applied the appropriate legal standard. Id.

{¶ 26} Police officers are not required to administer Miranda warnings to every person whom they question. In re J.S. at ¶ 11 ; State v. Biros , 78 Ohio St.3d 426, 440, 678 N.E.2d 891 (1997). Only custodial interrogation triggers the need for Miranda warnings. Biros at 440, 678 N.E.2d 891. Miranda defines custodial interrogation as any "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

{¶ 27} Where a suspect has not been formally arrested, "the restraint on the subject's freedom of movement must be significant in order to constitute custody." In re J.B. , 2005-Ohio-7029, 2005 WL 3610482 at ¶ 53. Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. Id. at ¶ 54. In cases involving a juvenile, the juvenile suspect's age may be analyzed as part of the court's determination on whether a custodial interrogation occurred. In re J.S. , 2012-Ohio-3534, 2012 WL 3157149 at ¶ 12, citing J.D.B. v. North Carolina , 564 U.S. 261, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011).

{¶ 28} We have further held that general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process ordinarily does not fall within the ambit of custodial interrogation. State v. Rivera-Carrillo , 12th Dist. Butler No. CA2001-03-054, 2002 WL 371950, at *3 (Mar. 11, 2002). That is because such general questioning is only an attempt to elicit basic facts relative to the officer's investigation. Id. Having an individual stay while relevant facts are ascertained does not necessarily elevate the situation to custodial interrogation. See id.

{¶ 29} After a careful review of the record, we find that appellant was not in custody for Miranda purposes at the time he spoke with Officer Stafford and provided a written statement. At the time of his statements, appellant was seated on a bench, in public, outside the office of the community center. His mother was present and had told the officer that no one had spoken to appellant about the incident yet. Appellant was not under arrest and was not "otherwise deprived of his freedom of action in any significant way." Miranda , 384 U.S. at 444, 86 S.Ct. 1602. The officer did not tell appellant that he had to stay or that he was not free to go. While the officer testified that appellant would not have been "free to go" during the questioning, that was simply because the officer wanted to get appellant's side of the story. At the time the officer spoke to appellant, the officer had not completed his investigation and was unsure whether charges would be filed as the victim's mother had indicated earlier she did not want to press charges. Officer Stafford's questions to appellant were simply on-the-scene inquiries done as part of the normal fact-finding process. Once appellant provided a written statement, he and his mother left the community center.

{¶ 30} Based upon the foregoing, we find that appellant was not in custody at the time he spoke with Officer Stafford and provided a written statement. The juvenile court, therefore, properly denied appellant's motion to suppress.

{¶ 31} Appellant's second assignment of error is overruled.

{¶ 32} Assignment of Error No. 3:

{¶ 33} THIS CASE SHOULD BE DISMISSED AS IT CANNOT WITHSTAND AN INDEPENDENT REVIEW FOR PROOF BEYOND A REASONABLE DOUBT.

{¶ 34} Appellant argues the juvenile court erred in adjudicating him delinquent for committing disorderly conduct because he not only did not act recklessly, he also acted in self-defense when he punched the victim.

{¶ 35} In reviewing whether a juvenile's delinquency adjudication is supported by sufficient evidence and not against the manifest weight of the evidence, the standard of review is the same as the standard used in adult criminal cases. In re Washington , 81 Ohio St.3d 337, 339, 691 N.E.2d 285 (1998) ; In re M.J.C. , 12th Dist. Butler No. CA2014-05-124, 2015-Ohio-820, 2015 WL 1005020, ¶ 27. The relevant inquiry in reviewing a claim of insufficient evidence 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. McKnight , 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 70. When evaluating the sufficiency of the evidence, this court must construe the evidence in favor of the state and "defer to the trier of fact on questions of credibility and the weight assigned to the evidence." State v. Kirkland , 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132 ; State v. V.A.C. , 12th Dist. Warren No. CA2017-01-011, 2017-Ohio-5779, 2017 WL 2927781, ¶ 9. If a juvenile court's delinquency finding is supported by the manifest weight of the evidence, then the finding is also supported by sufficient evidence. In re D.L.B. , 12th Dist. Fayette No. CA2011-09-019, 2012-Ohio-3045, 2012 WL 2524293, ¶ 3.

{¶ 36} In considering whether a conviction is against the manifest weight of the evidence, "a reviewing court must examine the entire record, weigh all of the evidence and 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." In re M.J.C. at ¶ 28 ; State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Granting a new trial through use of discretionary power should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. In re N.J.M. , 12th Dist. Warren No. CA2010-03-026, 2010-Ohio-5526, 2010 WL 4621877, ¶ 35.

{¶ 37} Appellant was adjudicated delinquent for committing disorderly conduct in violation of R.C. 2917.11(A)(1). Pursuant to that statute, "[n]o person shall recklessly cause inconvenience, annoyance, or alarm to another by [e]ngaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior."

{¶ 38} Appellant argues the juvenile court erred in adjudicating him delinquent because he did not act recklessly in punching the victim. Appellant asserts he did not intend to harm the victim; rather, he punched the victim out of reflex or instinct after the victim shoved and kicked him.

{¶ 39} "A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause a certain result or is likely to be of a certain nature. R.C. 2901.22(C). "A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist." Id.

{¶ 40} We find that appellant acted with heedless indifference to the consequences and disregarded a substantial and unjustifiable risk that his conduct was likely to cause physical harm to the victim when he punched the victim in the head with a close fist with such force that it caused a "very big knot" on the victim's head and a swollen, black and blue eye. Appellant testified he punched the victim out of reflex or instinct. However, he also testified he punched the victim to defend himself because he did not know if the victim was going to keep coming at him. The punch was therefore not accidental but intentional, done to stop what he thought the victim was going to do. Appellant's conduct was reckless.

{¶ 41} Appellant further argues the juvenile court erred in adjudicating him delinquent because the evidence shows he acted in self-defense.

{¶ 42} To establish a claim of self-defense in situations involving the use of non-deadly force, a defendant must prove by a preponderance of the evidence that (1) he was not at fault in creating the situation giving rise to the altercation, and (2) he had reasonable grounds to believe and an honest belief, even though mistaken, that he was in imminent danger of bodily harm and his only means to protect himself from the danger was by the use of force not likely to cause death or great bodily harm. State v. Russell , 12th Dist. Warren Nos. CA2011-06-058 and CA2011-09-097, 2012-Ohio-1127, 2012 WL 937111, ¶ 33, 38 ; In re B.Z. , 11th Dist. Geauga No. 2016-G-0089, 2017-Ohio-5638, 2017 WL 2831013, ¶ 11-12. When acting in self-defense, a person is privileged to use only that force that is reasonably necessary to repel the attack. Russell at ¶ 32, citing State v. Williford , 49 Ohio St.3d 247, 249, 551 N.E.2d 1279 (1990). "If the defendant fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense." (Emphasis sic.) Williford at 249, 551 N.E.2d 1279.

{¶ 43} As stated above, by all accounts, the one-on-one game between appellant and the victim was very competitive with hard, physical fouls on both sides. Immediately before the altercation, a hard foul by appellant knocked the victim to the ground. The victim testified that soon after, appellant got in his face, taunting him. Fed up, the victim got up and as he went to get his bag and leave the court, pushed appellant out of the way as the latter was in his personal space. The victim testified he did not shove appellant very hard. Appellant stumbled back but did not fall down. Appellant then punched him in the face. The punch was forceful and painful.

{¶ 44} At trial, the victim denied he kicked appellant during the altercation. The victim's written statement does not mention a kick. By contrast, appellant told Officer Stafford at the scene and testified at trial that the victim kicked him in the shin. Appellant testified that the victim whipped back his leg as hard as he could and then kicked appellant. Appellant expressed his belief the kick was intentional.

{¶ 45} Three of the victim's friends testified. One was G.W. who watched the one-on-one game and witnessed the altercation. The other two friends testified about a text the victim sent the day after the incident. While one of those friends testified that the victim texted he had pushed and kicked appellant, the other friend testified that the text indicated a shove but no kick. G.W. testified that while he saw the victim shove appellant, he did not see him kick appellant. However, G.W.'s written statement to the police stated that the victim kicked appellant.

{¶ 46} Officer Stafford testified that G.W. told him at the scene that appellant's kick was accidental. Likewise, the victim indicated at the scene that the kick was accidental. The officer testified that based upon statements appellant, the victim, and eye witnesses made at the scene, he ultimately concluded that the kick was not intentional. The officer further explained that the conflicting statements as to whether the kick was accidental or intentional was the reason why the victim was not charged.

{¶ 47} Appellant testified that after the victim hit his knee on the floor during the game and some spectators began laughing at him, the victim became angry and frustrated and consequently, "ran over to [one of the boys] sort of screaming at him and * * * just pushed him and then * * * threw the ball at [another boy] out of rage." Appellant testified that after he subsequently scored despite a hard foul by the victim, appellant stated "and one" but denied otherwise taunting the victim. Angry, the victim dropped the ball, walked over to appellant, shoved him, and then kicked him as hard as he could. Surprised by the victim's reaction and not knowing what was going to happen next, appellant punched the victim. Appellant testified he did so out of instinct and to protect himself. Appellant explained he did not know if the victim was going to come at him again or not. Alternatively, appellant stated his belief that the victim was going to keep coming at him. Appellant could not explain why he chose to punch the victim rather than simply shove him. Appellant stated he was neither angry nor scared when he punched the victim.

{¶ 48} The record shows that there was conflicting testimony as to the identity of the boys on the bench who were the recipients of the victim's frustration during the game, who was winning the one-on-one game, and whether the victim disrespectfully called out appellant earlier in the game. Appellant's trial counsel further challenged the veracity and credibility of the victim and G.W. on several occasions during trial.

{¶ 49} In light of the foregoing, the juvenile court found that appellant failed to prove he acted in self-defense:

[Appellant] did not prove he is not at fault for the fight, nor did he prove he had reasonable grounds to believe and an honest belief that he was in imminent danger of harm. Both boys * * * engaged in hard fouls. [Appellant] caused [the victim] to fall to the ground. [Appellant] also got in [the victim's] face. After [the victim] pushed and kicked [appellant], there was insufficient evidence in [the victim's] acts and words to cause [appellant] to reasonably and honestly believe [the victim] would cause him harm. There was no testimony [the victim] was advancing on [appellant]. [The victim's] shove did not knock [appellant] to the ground, just away. [The victim's] kick even if intentional was minor.

{¶ 50} The juvenile court further found that "[w]hen looking from [appellant's] position" and "under the circumstances and conditions that surrounded him at the time, including the conduct of the boys, [appellant] did not have reasonable grounds to believe and an honest belief that he was about to receive bodily harm."

{¶ 51} The trier of fact is in the best position to determine credibility issues, because he or she personally observes the demeanor, voice inflections, and gestures of the witnesses. State v. Hill , 75 Ohio St.3d 195, 204, 661 N.E.2d 1068 (1996). Here, the juvenile court heard conflicting evidence as to whether the victim kicked appellant before he was punched and if so, as to whether the kick was intentional or accidental. The court further heard appellant's explanations as to why he believed he was in imminent danger of bodily harm and thus punched the victim as the only means to protect himself. The court did not find the explanation credible, elected to believe the victim's version of the events, and found that appellant failed to prove self-defense.

{¶ 52} "If evidence is susceptible to more than one construction, reviewing courts must give it the interpretation that is consistent with the verdict and judgment." In re B.Z. , 2017-Ohio-5638, 2017 WL 2831013 at ¶ 18 (deferring to the juvenile court's construction of the evidence and determining the court did not err in finding the juvenile failed to prove self-defense and in adjudicating him delinquent for committing disorderly conduct). The credibility of the testimony of appellant and the witnesses was a matter for the juvenile court to decide. The court was free to believe all, part, or none of appellant's testimony, as well as the other witnesses. See State v. Lewis , 12th Dist. Fayette No. CA2010-08-017, 2011-Ohio-415, 2011 WL 334831. Appellant's delinquency adjudication for disorderly conduct was not improper or against the manifest weight of the evidence, merely because the trier of fact believed the testimony of the state's witnesses. See State v. Burrell , 12th Dist. Fayette No. CA2016-04-005, 2016-Ohio-8454, 2016 WL 7626283.

{¶ 53} We therefore find that the juvenile court did not err in concluding that appellant failed to prove self-defense and in adjudicating appellant delinquent for committing disorderly conduct.

{¶ 54} Appellant's third assignment of error is overruled.

{¶ 55} Judgment affirmed.

RINGLAND, P.J., concurs.

PIPER, J., dissents.

{¶ 56} YouTube, Hollywood movies, and sometimes professional basketball games (when there is lapse in judgment or loss of control) demonstrate flagrant, hard fouls. However, such are not demonstrations of skill, nor do they depict basketball at its best. Giving punishment to a fellow player does not make one tough, skilled, or on the way to being "accomplished." When occurring in basketball games, they are often called as intentional fouls. Endurance, persistency, and discipline are exercised by the successful player because such attributes allow one to maintain focus and restraint.

{¶ 57} No doubt, the record here documents that the rivalry and competitiveness were intense between C.J. and B.N. By way of their conduct, both had consented to giving and receiving hard fouls. Attempting to persevere, B.N. was struggling in front of his friends. The record shows that his frustration and embarrassment led B.N. to lose control and erupt on more than one occasion. As the game was concluding, the violence escalated and B.N.

lost all restraint, attacking C.J. by shoving him and kicking C.J. in the knee. All players are sensitive to knee injury, as such an injury can be debilitating and life-changing. Shoving might be an acceptable hard foul for some playing asphalt basketball, but an attack to the knee is beyond the pale of a hard foul; it is an assault. To end the assault and in fear of further escalation, C.J. defended himself by punching B.N. in the forehead.

{¶ 58} B.N's attempt to seriously injure C.J. precipitated and caused C.J. to respond in like kind. While the trial court had difficulty attributing intent to B.N. in his kick to C.J.'s knee, C.J. had no time to act or reflect. C.J. articulated he felt that he had to reciprocate to stop anything further from happening. C.J. did not cause the exchange and he proved self-defense by a preponderance of the evidence. Therefore, C.J. was not guilty of the charge, and I respectfully dissent on the majority's disposition of appellant's third assignment of error. Otherwise, I concur on the decisions reached in appellant's first and second assignments of error.

      Once again, the juvenile court magistrate improperly captioned his rulings as a "magistrate's order" as opposed to a "magistrate's decision." Juv.R. 40(D) (2(a)(i) restricts "magistrate's orders" to "[r]egulating the proceedings" and specifically provides that a "magistrate's order" may not be "dispositive of a claim or defense of a party." We have held that a magistrate's ruling on a motion to suppress is a "decision" and not an "order." State v. J.A.C. , 12th Dist. Warren Nos. CA2017-04-044 and CA2017-04-045, 2018-Ohio-361, 2018 WL 582332, ¶ 10, fn. 2. A fortiori, and because the grant of a motion to dismiss a case is dispositive as it ends the state's case, a magistrate's ruling on a motion to dismiss is likewise a "decision" and not an "order" under Juv.R. 40. Further, the Ninth Appellate District has held that a magistrate's adjudication of delinquency is a "decision" and not an "order." In re T.S. , 9th Dist. Medina No. 11CA0033-M, 2012-Ohio-858, 2012 WL 691448, ¶ 5. The designation is significant because the time to set aside a "magistrate's order" is 10 days whereas the time to object to a "magistrate's decision" is 14 days. Juv. R. 40(D)(2)(b) and Juv.R.40(D)(3)(b)(i). The designation of a magistrate's determination of an issue as a "magistrate's order" or "magistrate's decision" is therefore not merely a matter of form, but rather one of substance. While the magistrate's rulings were filed in January 2017, appellant's trial counsel did not file objections to all three rulings until April 2017. We note that no one claimed that the objections were untimely filed and the juvenile court proceeded to address the objections on the merits and overrule them. We further note that while the juvenile court did not correct the incorrect captions in the magistrate's rulings denying appellant's motions to dismiss and suppress, the court did recognize that the magistrate's adjudication of delinquency "should have been characterized as a Magistrate's Decision and not an Order, and the Court will reference to it as same."

      "Prison Rules" in basketball call for the use of "hard fouls" but have no place other than with inmates on the yard fighting to survive. There is nothing there to emulate. See Shock the World, p.142-143, by author Peter F. Burns.

      As a power forward, Blake Griffin gets "tossed around" a lot. He's been told his entire career he needs to punch someone. Blake admits to being pushed to the edge and even tempted, but maintains he exercises restraint because the bigger picture is to be there for the team and focus on a win. See Los Angeles Times interview with Melissa Rohlin, May 5, 2015.


author: HENDRICKSON, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Timothy Craig WHITLING, Defendant-Appellant.
    NO. CA2016-10-202
    Court of Appeals of Ohio, Twelfth District, Butler County.
    April 9, 2018
    Stephen J. Wolterman, Fairfield City Prosecutor, 675 Nilles Road, Fairfield, Ohio 45014, for plaintiff-appellee
    Scott N. Blauvelt, 315 South Monument Avenue, Hamilton, Ohio 45011, for defendant-appellant
   HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, Timothy Craig Whitling, appeals from his conviction and sentence in the Fairfield Municipal Court for violating a protection order. For the reasons set forth below, we reverse appellant's conviction and remand the matter for further proceedings.

I. FACTS

{¶ 2} On August 10, 2016, appellant was arrested and charged in Fairfield Municipal Court Case No. 2016CRB01987 with violating a protection order in contravention of Fairfield Codified Ordinances 537.15(a)(1), a misdemeanor of the first degree. The charge arose out of allegations that appellant violated a protection order issued by the Butler County Domestic Relations Court when he mailed a letter to his estranged wife. At the time of this violation, appellant had two other cases pending in the municipal court for violation of the protection order-Case Nos. 2016CRB01890 and 2016CRB01904.

{¶ 3} Appellant was arraigned on August 11, 2016 in all three cases. He was advised that for each charge of violating a protection order, he faced a maximum penalty of six months in jail and a $1,000 fine. Defense counsel asked that appellant be released on a personal recognizance bond, noting that appellant had "fairly serious medical issues" and "a history of brain injury." The trial court denied defense counsel's request and set bond at $25,000. Appellant was unable to make bond and was held in jail.

{¶ 4} On August 17, 2016, a pretrial hearing was held. At this time, the trial court scheduled a competency hearing and ordered appellant to undergo a competency assessment by Dr. Bobbie Hopes. A brief competency hearing was then held on September 7, 2016, at which time the following discussion occurred:

THE COURT: All right. Did you see a copy of the doctor's report?
DEFENSE ATTORNEY: I did, I just got it.
THE COURT: He is competent to stand trial, so what are we going to do here today?
DEFENSE ATTORNEY: Today I was going to-what I would like to do is have a pretrial with the Prosecutor to-
THE COURT: Let's do it sooner rather than later.

Although the trial court made reference to a competency report, or "doctor's report," at the hearing, the report was not admitted into evidence. Further, although the trial court stated appellant was "competent to stand trial," the court did not journalize an entry to this effect.

{¶ 5} At the conclusion of the September 7, 2016 hearing, the court set the matter for pretrial and released appellant on a personal recognizance bond. On September 21, 2016, appellant appeared before the court and, pursuant to an agreement reached with the state, pled guilty to violating a protection order as charged in Case No. 2016CRB01987. In exchange for appellant's guilty plea, the charges in Case Nos. 2016CRB01890 and 2016CRB01904 were dismissed. Appellant was sentenced to 180 days in jail, with 180 days suspended, was ordered to pay a fine of $1,000, with $500 suspended, placed on reporting probation for two years, and ordered not to have contact with the victim. The sentencing entry ordered appellant to pay court costs.

{¶ 6} Appellant appealed his conviction and sentence, raising two assignments of error.

II. ANALYSIS

{¶ 7} Assignment of Error No. 1:

{¶ 8} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN ACCEPTING A GUILTY PLEA WHICH WAS NOT KNOWING, INTELLIGENT, AND VOLUNTARY.

{¶ 9} In his first assignment of error, appellant argues the trial court erred in accepting his guilty plea as issues involving his competency to stand trial remained at the time his plea was entered. Specifically, appellant argues the procedure surrounding his competency hearing was "insufficient" to protect his due process rights as (1) the hearing was "perfunctory" and no evidence was presented at the hearing, (2) a copy of the competency evaluation was not entered into the record, and (3) the trial court did not journalize an entry finding him competent to stand trial.

{¶ 10} "Fundamental principles of due process require that a criminal defendant who is legally incompetent may not be tried." State v. Lampley , 12th Dist. Butler No. CA2011-03-046, 2011-Ohio-6349, 2011 WL 6180457, ¶ 9, citing State v. Berry , 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995). Further, "a defendant who is not competent to stand trial is not competent to enter a guilty plea." State v. Burns , 12th Dist. Warren Nos. CA2004-07-084 and CA2004-10-126, 2005-Ohio-5290, 2005 WL 2416820, ¶ 37. Where the issue of a defendant's competency to stand trial has been raised, the trial court cannot make a reliable determination that the defendant's plea was knowingly, intelligently, and voluntarily entered without first determining the defendant's competency in accordance with R.C. 2945.37.

State v. Cruz , 8th Dist. Cuyahoga No. 93403, 2010-Ohio-3717, 2010 WL 3168975, ¶ 17.

{¶ 11} R.C. 2945.37(B) provides that "the court, prosecutor, or defense may raise the issue of the defendant's competence to stand trial" and, "[i]f the issue is raised before the trial has commenced, the court shall hold a hearing on the issue as provided in this section." (Emphasis added.) Pursuant to the statute, the defendant "is presumed to be competent to stand trial." R.C. 2945.37(G). The defendant "shall be represented by counsel" at the competency hearing and "[t]he prosecutor and defense counsel may submit evidence on the issue of the defendant's competence to stand trial." R.C. 2945.37(D) and (E). The trial court "may order one or more evaluations of the defendant's present mental condition" to be conducted by a psychiatrist or a licensed clinical psychologist. R.C. 2945.371(A) and 2945.37(A)(2). The examiner "shall file a written report with the court within thirty days after entry of a court order for the evaluation, and the court shall provide copies of the report to the prosecutor and defense counsel." R.C. 2945.371(G). The written report of the evaluation of the defendant "may be admitted into evidence at the hearing by stipulation" or, if objected to by either party, "may be admitted under sections 2317.36 to 2317.38 of the Revised Code or any other applicable statute or rule." (Emphasis added.) R.C. 2945.37(E).

{¶ 12} "If the issue of a defendant's competence to stand trial is raised and if the court, upon conducting the hearing provided in section 2945.37 of the Revised Code, finds that the defendant is competent to stand trial, the defendant shall be proceeded against as provided by law." R.C. 2945.38(A). However, "[i]f, after a hearing, the court finds by a preponderance of the evidence that, because of the defendant's present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense, the court shall find the defendant incompetent to stand trial and shall enter an order authorized by section 2945.38 of the Revised Code." R.C. 2945.37(G).

{¶ 13} In support of his argument that the trial court's failure to adhere to the procedures set forth in R.C. 2945.37 results in reversible error, appellant relies on State v. Cruz , 2010-Ohio-3717, 2010 WL 3168975. In Cruz , the defendant's competency to stand trial was raised prior to a trial commencing, and the court ordered a competency evaluation. Id. at ¶ 6. However, no evaluation report was filed with the trial court or mentioned on the docket or in the transcript of proceedings. Id. Furthermore, no competency hearing was held before the trial court accepted the defendant's guilty plea. Id. at ¶ 11 and ¶ 18. On appeal, the Eighth District reversed, finding that the defendant's plea was invalid. The court noted the mandatory nature of R.C. 2945.37(B) and found that the defendant's counsel had not stipulated to a finding of competency or waived the requirement of a competency hearing. Id. at ¶ 13-14, ¶ 18. The Eighth District, therefore, vacated the defendant's plea and remanded the matter for the trial court to conduct a hearing on the defendant's competency. Id. at ¶ 21.

{¶ 14} We find the present case distinguishable from Cruz . Unlike in Cruz , the record in the present case demonstrates that appellant was evaluated by a psychologist, the evaluator's report was provided to the court, the report given to defense counsel, and a competency hearing was conducted. Although appellant takes issue with the evaluation report not being entered into the record as an exhibit, nothing in R.C. 2945.37 or 2945.371 requires the report to be admitted as an exhibit. R.C. 2945.371(G) merely requires the report to be filed with the court and for the report to be given to the prosecutor and defense counsel. R.C. 2945.37(E) provides that the report "may be admitted into evidence at the hearing by stipulation" of the parties or "may be admitted under sections 2317.36 to 2317.38 of the Revised Code or any other applicable statute or rule" by the trial court. (Emphasis added.) While the better practice would have been for the parties or the trial court to have admitted the report as an exhibit at the September 7, 2016 competency hearing, we find no error in the court's or the parties' failure to do so. The record clearly indicates the trial court received the evaluator's report and a copy was given to defense counsel, who acknowledged at the competency hearing that he had seen a copy of the report.

{¶ 15} Appellant also argues that the competency hearing was deficient as it was "perfunctory" and there was no evidence presented at the hearing. We find no merit to appellant's argument. As this court has previously held, "[t]he hearing requirement of R.C. 2945.37 [B] is satisfied when a defendant has been afforded an opportunity to present evidence but instead elects to accept the findings contained in a competency evaluation." State v. Whitecross , 12th Dist. Butler No. CA97-04-079, 1998 WL 87592, at *2 (Mar. 2, 1998).

{¶ 16} At the September 7, 2016 competency hearing, appellant was provided with an opportunity to present evidence and challenge the evaluator's written report. After questioning defense counsel about whether he had seen the evaluation report on appellant's competency, the court stated, " He [appellant] is competent to stand trial" before asking, "so what are we going to do here today?" Appellant chose to request a pretrial hearing rather than challenging or objecting to the contents of the evaluation report or presenting evidence to rebut the presumption of competency. Appellant contends he did not have a "meaningful opportunity" to challenge the competency finding because he had "just got[ten]" the competency evaluation report from the court. However, appellant did not request a continuance to seek time to respond to the contents of the report; nor did he seek a continuance to have an independent evaluation of his competency to stand trial conducted. As appellant was provided with the opportunity to present evidence, to challenge the evaluator's written report, and to request a continuance, we conclude that the procedures utilized during appellant's competency hearing were proper and did not violate his due process rights.

{¶ 17} We are troubled, however, by the trial court's failure to make a determination of appellant's competency to stand trial prior to the court accepting appellant's guilty plea. R.C. 2945.38(A) provides that after a competency hearing has been held, "the defendant shall be proceeded against as provided by law" only if the trial court "finds that the defendant is competent to stand trial. " (Emphasis added.) The fact that the trial court stated at the competency hearing, "He [appellant] is competent to stand trial" is insufficient, as it is well-established that "a court speaks only through its journal entries." State v. Marcum , 12th Dist. Butler Nos. CA2005-10-431 and CA2005-10-446, 2006-Ohio-2514, 2006 WL 1381679, ¶ 5, citing State v. Mincy , 2 Ohio St.3d 6, 8, 441 N.E.2d 571 (1982). Here, the trial court failed to issue an entry finding appellant competent to stand trial. As such, appellant's competence to stand trial remained an outstanding issue that precluded the trial court from making a reliable determination of the appellant's ability to enter a knowing, intelligent, and voluntary plea. See Cruz , 2010-Ohio-3717, 2010 WL 3168975 at ¶ 17 ; Burns , 2005-Ohio-5290, 2005 WL 2416820 at ¶ 37.

{¶ 18} In reaching this determination, we reject the dissent's interpretation of the competency statutes. The suggestion that because defense counsel did not raise the issue of appellant's competency to stand trial, appellant's competency was not truly at issue is without merit. R.C. 2945.38(B) specifically provides that the issue of a defendant's competence may be raised by "the court , the prosecutor, or defense." (Emphasis added.) After appellant appeared before the court and the court heard about appellant's "fairly serious medical issues and "history of brain injury," the court properly raised the issue of appellant's competency and ordered an evaluation-an action that is permitted by statute in determining a defendant's competency, but is not required in every case. See R.C. 2945.37(C) and 2945.371(A) ("the court may order one or more evaluations of the defendant's present mental condition").

{¶ 19} R.C. 2945.37 does not set forth any specific factors or indicia that must be met in order for a court to raise the issue of competency. Rather, whenever the trial court-or the state or defense counsel for that matter-suspect that the defendant is incapable of understanding the nature and objective of the proceedings against him or of assisting in his own defense, the issue of competency may be raised. The court clearly had concerns about appellant's competency, as appellant had two pending violations of the same protection order when he was charged with his third violation and appellant had a history of brain injury and serious medical issues. At this point in the proceedings, the court's concerns caused it to both order a competency evaluation and to schedule a competency hearing.

{¶ 20} As for the competency hearing that was held on September 7, 2016, the dissent suggests no hearing was actually held as no evidence or testimony was received by the court. This position is contrary to R.C. 2945.37(E), which states that "[t]he prosecutor and defense counsel may submit evidence on the issue of the defendant's competence to stand trial." (Emphasis added.) The statute does not require evidence or testimony to be presented at the hearing, and the hearing that transpired in the present case complied with the requirements of R.C. 2945.37.

{¶ 21} At the conclusion of the September 7, 2016 hearing, the trial court was left with the unrebutted presumption that appellant was competent to stand trial. See R.C. 2945.37(G). Utilizing this statutory presumption, the trial court was required to make a determination of appellant's competency to stand trial. See R.C. 2945.38(A).

{¶ 22} Once the issue of competency has been raised, the procedures set forth in R.C. 2945.37 and 2945.38 are required to be followed so that the question of appellant's competence to stand trial may be put to rest. Until the trial court resolves this issue by putting on an entry, there remains an issue as to whether appellant is competent to stand trial. Therefore, for the reasons stated above, we find that the trial court erred in accepting appellant's guilty plea without first determining defendant's competency in accordance with R.C. 2945.38(A). Appellant's first assignment of error is sustained.

{¶ 23} Assignment of Error No. 2:

{¶ 24} THE SENTENCE IMPOSED WAS CONTRARY TO LAW.

{¶ 25} In his second assignment of error, appellant argues the trial court erred in imposing his sentence as the court (1) improperly ordered the payment of court costs in his sentencing entry without imposing the costs at the sentencing hearing and (2) failed to give him jail-time credit. However, based on our resolution of appellant's first assignment of error, we find that we do not need to address his second assignment of error. See App.R. 12(A)(1)(c) ; State v. Blatchford , 2016-Ohio-8456, 79 N.E.3d 97, ¶ 71 ; State v. Scott , 12th Dist. Warren No. CA2005-12-134, 2007-Ohio-1094, 2007 WL 731415, ¶ 29.

III. CONCLUSION

{¶ 26} For the reasons stated above, judgment is reversed, appellant's guilty plea and sentence is vacated, and the matter is remanded to the trial court with instructions to determine appellant's competency in accordance with the requirements of R.C. 2945.38(A) based upon the record of the September 7, 2016 competency hearing.

M. POWELL, J., concurs.

PIPER, J., dissents.

{¶ 27} The bond hearing contained no evidence, nor any suggestion, indicating appellant was incompetent. The mere fact that a subsequent competency hearing was scheduled, counsel appeared, and the trial court inquired as to how counsel wanted to proceed, does not mean a competency hearing was actually conducted. No evidence was admitted, nor any testimony taken. Since no competency hearing took place and no evidence was introduced, I further disagree that an entry needed to be journalized. Therefore, I respectfully dissent from the majority's decision and would not reverse the trial court.

Request for O.R. Bond

{¶ 28} At the arraignment, appellant's counsel requested an O.R. bond. Attempting to sway the trial court, counsel represented that his client had medical problems, a past brain injury, and was on medication. Neither the trial court, nor anyone, raised facts suggesting appellant was incompetent. With no explanation or stated reason, the trial court, presumably in an abundance of caution, sua sponte ordered a forensic evaluation as to the appellant's competency to stand trial. No one ever suggested signs of incompetency existed.

{¶ 29} The majority poses the possibility that appellant's prior convictions and his counsel's statements to secure an O.R. bond meant the "court clearly had concerns" regarding appellant's incompetency. However, nothing in the record supports the effect of appellant's prior convictions and his counsel's comments upon the trial court; even if "concerns" existed it does not necessarily mean the court equated those concerns to be evidence of an "indicia of incompetency." Neither before the trial court, nor before us on appeal, does appellant claim indicia of incompetency actually existed. The majority opinion will be cited for the proposition that a trial court should consider a defendant's record and any past serious medical issues as an indication that a defendant is currently incompetent even though no signs of incompetency are expressed and no suggestions of incompetency take place.

{¶ 30} There was no information produced, nor any indications whatsoever that appellant was incapable of understanding the nature and objective of the proceedings or that he was otherwise incapable of communicating with counsel to assist in his defense. R.C. 2945.37(G) ; State v. Murphy , 173 Ohio App.3d 221, 2007-Ohio-4535, 877 N.E.2d 1034 ¶ 28. To suggest that the trial court found there was an indication that appellant was incapable of understanding the nature and objective of the proceedings or that he was otherwise incapable of communicating with his counsel is purely an assumption.

{¶ 31} The majority equates counsel's comments to secure an O.R. bond as an indication that appellant was currently incompetent. However, long-standing case law clearly establishes that even if medical issues and a brain injury did exist, such are not per se indicators of legal incompetency. The majority assumes, on a sketchy and very limited record, that an order for a forensic evaluation as to competency must mean the trial court found signs of incompetency currently existed. Yet, with the transcript provided, no discussion or dialogue supports such an assumption.

{¶ 32} In ordering the evaluation, the court was merely being cautious in attempting to protect the fairness accorded appellant's proceedings. Absent evidence that an individual was presently suffering a condition that questioned the individual's competency, there was no basis for ordering a competency hearing or mental evaluation. United States v. Manley , 618 Fed.Appx. 276, 280 (6th Cir.2015). Similarly, there was no basis herein to order a hearing or evaluation and the failure to conduct a hearing is harmless.

The Hearing Date

{¶ 33} The statute requires a hearing date be scheduled so that an evaluation is filed in advance, and made available to the court and counsel beforehand. R.C. 2945.37(C). The record demonstrates both appellant's counsel and the trial court had access to, and reviewed, the evaluation. It is undisputed the evaluation concluded appellant was competent to stand trial. Again, no one requested a hearing actually take place in order to submit the evaluation or provide testimony. With there being no indicators pointing to appellant's incompetency, "competency" was not raised as an issue. The trial court inquired of counsel how he wanted to proceed on behalf of his client. Since counsel never espoused or experienced his client's incompetency to begin with, counsel simply indicated he wanted to talk with the prosecutor about negotiating a plea. Contrary to the majority's determination, a hearing on appellant's incompetency to stand trial never came to fruition.

Appellant's Arguments on Appeal

{¶ 34} Appellant does not argue on appeal that he was incompetent to participate in his proceedings. This is because the record does not support such a proposition. Instead, he argues that (1) he should have had a competency hearing even though no indicia of incompetency existed in the record, and no one expressed the need for an incompetency hearing to actually take place, (2) the evaluation should have been entered into evidence although it concluded appellant was competent and no hearing took place and no one offered it by way of stipulation, testimony, or otherwise, and (3) an entry journalizing the result of a competency hearing should have been filed although there was no finding generated at a hearing because a hearing never occurred.

No Entry Needed

{¶ 35} Since an incompetency hearing never occurred, an entry was not required. R.C. 2945.37(G). Without any indicia of incompetency, both before and after the evaluation was received, the trial court had no obligation to sua sponte explore appellant's incompetency. State v. Bock , 28 Ohio St.3d 108, 502 N.E.2d 1016 (1986) ; State v. Murphy , 173 Ohio App.3d 221, 2007-Ohio-4535, 877 N.E.2d 1034 (12th Dist.) ; United States v. Manley , 618 Fed.Appx. 276, 280 (6th Cir.2015).

{¶ 36} The majority determines that because a hearing was scheduled and an "opportunity" to have a hearing existed, it means a hearing was actually conducted. Merely asking counsel how he wants to proceed is not a hearing. The majority and I simply disagree as to what Ohio's competency statutes and the constitutional principles of fundamental fairness require if and when evidence indicates incompetency exists. If and when evidence indicates an individual's incompetency is afoot, the proceedings cannot be rendered hollow with the absence of any evidence whatsoever. See Cooper v. Oklahoma , 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996).

{¶ 37} However, since no need for a hearing ever existed, no one requested a hearing be conducted, and no hearing was actually conducted, an entry purporting to represent a finding made at a competency hearing would be not only unnecessary, but it would be inappropriate.

Evaluation Not Entered into Evidence

{¶ 38} Both before and after the evaluation was received, no one, nor any information, raised facts suggesting appellant was incompetent. The lack of the evaluation being admitted into evidence has little significance, particularly since the evaluation, if entered into evidence, would support the statutory presumption of competency. R.C. 2945.37(G). In view of the circumstances indicating no hearing actually occurred, the evaluation's absence from evidence is meaningless.

The Lack of a Hearing

{¶ 39} Depending upon the circumstances, the failure to conduct a mandatory hearing can be harmless error. Without sufficient indicia of incompetency appearing in the record, a reviewing court must rule that the failure of the trial court to hold a hearing was harmless error. Bock , 28 Ohio St.3d 108, 502 N.E.2d 1016 ; Murphy , 173 Ohio App.3d 221, 2007-Ohio-4535, 877 N.E.2d 1034 (acknowledging the need for a case-by-case determination as to whether or not the lack of a hearing constitutes harmless error).

{¶ 40} A trial court's failure to sua sponte conduct a hearing is not reversible error where it was the prosecutor who raised the issue of appellant's competency to stand trial at a pretrial hearing and appellant's own attorney was not claiming his client would meet the test for incompetency. State v. Jordan , 101 Ohio St.3d 216, 2004-Ohio-783, 804 N.E.2d 1. Any error sub judice in not conducting a hearing would be harmless as well.

{¶ 41} Here, appellant points to no facts in the record to suggest he was incompetent. The mere suggestion of serious past injury or "medical issues" does not suggest incompetency to stand trial. Being psychotic, pleading insanity, or possessing mental or emotional instability is not equated with being legally incompetent to stand trial. Murphy at ¶ 29. Even the mentally ill can be competent to stand trial. State v. Berry, 72 Ohio St. 3d, 354, 650 N.E.2d 433 (1995) (where the Ohio Supreme Court rejected defendant's mid-trial incompetency claim despite a psychologist's strong feelings, the prosecutor's acknowledgment the defendant suffered mental illness, the defendant's lack of cooperation with his counsel, counsel's opinion that his client was "sick," and the defendant's display of disruptive behavior, among other things).

{¶ 42} Past brain injury has been determined to be insufficient indicia of incompetency and the failure to hold a hearing was harmless. Eley v. Bagley , 604 F.3d 958, 966-967 (6th Cir.2010). With no indicia of incompetency and no one suggesting appellant was incompetent, the trial court's failure to conduct a hearing was harmless and the matter should not be reversed.

Effect of Majority Opinion

{¶ 43} The majority decision places the trial court in an untenable position. On remand, the trial court is ordered to journalize an entry with a finding as to appellant's incompetence based on the state of the evidence as it currently exists. Despite the majority's finding that a hearing occurred, the record is undisputed that no evidence or testimony was offered and no evidence was presented at a hearing. Thus, any finding made by the trial court on remand will not be supported by evidence.

{¶ 44} When reviewing a trial court's determination of incompetency, we examine whether the finding was supported by competent, credible evidence . State v. Hicks , 43 Ohio St.3d 72, 538 N.E.2d 1030 (1989) ; State v. Jones , 12th Dist. Butler No. CA96-10-210, 1997 WL 658974 (Oct. 20, 1997). The majority determines, however, a trial court needs no evidence at a competency hearing because of the statutory presumption.

{¶ 45} This determination, along with the remand instructions, will create a situation where the trial court's decision could not possibly be based on evidence because no testimony was taken and no exhibits were admitted into evidence. The majority establishes precedent that the competency statutes do not require a trial court to have evidence. Yet, if the issue of incompetency has been sufficiently raised, as the majority apparently believes, the statutes require the admission of evidence for the court to make a finding at the conclusion of the hearing. R.C. 2945.37 et seq.

{¶ 46} Furthermore, if sufficient indicators of incompetency do exist, the use of a presumption alone cannot clear constitutional hurdles. Cooper v. Oklahoma , 517 U.S. 348, 355, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). The United States Supreme Court stated,

Our conclusion that the presumption of competence offends no recognized principle of "fundamental fairness" rested in part on the fact that the procedural rule affects the outcome only in a narrow class of cases where the evidence is in equipoise; that is, where the evidence that a defendant is competent is as strong as the evidence that he is incompetent.

Cooper at 335, 116 S.Ct. 1373, quoting Medina v. California , 505 U.S. 437, 449, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). In other words, the presumption of competency is only to be used when the balancing scales need to be tipped.

{¶ 47} The United States Supreme Court recognized that the use of a presumption must be in tandem with other evidence before the court. Use of a presumption alone without any exhibits or testimony, "offends" the fundamental fairness of competency proceedings. Id. Additionally, the standard for reviewing a trial court's finding as to competency upon appeal is if some competent, credible evidence exists in support of the trial court's finding. If only a presumption supports the trial court's findings, the standard of review can never be met. The majority fails to explain the conundrum its decision creates.

Conclusion

{¶ 48} None of appellant's arguments require reversal and his plea should not be vacated. It is unfair to the trial court that we permit appellant to surreptitiously litigate issues on appeal that he did not litigate below. However, if the majority is reversing the trial court to journalize an entry representing a finding made at the conclusion of a competency hearing, the majority should also require a hearing take place so that evidence can be submitted, acting as the basis for any future finding. The trial court must receive evidence to support any finding it might make. To require an entry unsupported by evidence is to require a vain act on the part of the trial court, which is something an appellate court should refrain from doing.

{¶ 49} As examined on a case-by-case basis, specific to the facts, and given there were no indications of incompetency from any source, at any stage of the proceedings, I would affirm the trial court and not penalize it for attempting to insure a heightened level of fairness in its proceedings. While the trial court may now regret its effort to ensure fair play and fair process for appellant, the trial court's conduct should not be used to create unnecessary judicial actions upon remand or dilute Ohio's competency statutes of their purpose and constitutional protections.

{¶ 50} With the circumstances being understood as they actually unfolded, I would overrule appellant's first assignment of error as being without merit and proceed to address the merits of appellant's second assignment of error. Therefore, I respectfully dissent.

      The majority suggests there was a "conclusion" to an incompetency hearing, yet the record does not demonstrate an opening, arguments, statements in support or against competency, nor a "conclusion" to an incompetency hearing. The majority acknowledges there was no evidence offered or received and no findings made, yet determines a hearing actually occurred. I find such a suggestion inconsistent with the record.

      The majority holds the trial court "raised" an issue as to appellant's incompetency. It merely ordered a forensic evaluation. If I were to make assumptions, as the majority does, I would assume the trial court merely wanted to make sure counsel had everything at his disposal to fully and zealously represent his client including any insights arising from a forensic evaluation. Or, I could assume by ordering an evaluation, the trial court was attempting to lay to rest any future arguments that might possibly be made indicating appellant was currently incompetent just because of a past injury, medical issues, and the use his medication.

      The majority attributes to the dissent a suggestion that only a defendant's attorney can suggest a defendant is incompetent. Such a proposition is not found in the dissent; the "who", "how", "when" and "why" are only parts of the sum creating the circumstances to be examined. State v. Berry , 72 Ohio St. 3d 354,362, 650 N.E.2d 433 (1995).