author: HENDRICKSON, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Charles R. CROSSTY, Defendant-Appellant.
    NOS. CA2017-01-003 CA2017-01-004 CA2017-01-005
    Court of Appeals of Ohio, Twelfth District, Clermont County.
    October 23, 2017
    D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
    Soumyajit Dutta, 3278 Jefferson Avenue, Cincinnati, Ohio 45220, for defendant-appellant
   HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, Charles R. Crossty, appeals from his convictions in the Clermont County Court of Common Pleas for engaging in a pattern of corrupt activity and trafficking in heroin, cocaine, and fentanyl. For the reasons set forth below, we affirm appellant's convictions.

I. FACTS

{¶ 2} Following an investigation by the Clermont County Narcotics Unit ("CCNU") that took place between January 22 and February 29, 2016, appellant was arrested and indicted on (1) six counts of trafficking in heroin in violation of R.C. 2925.03, of which two were felonies of the second degree, three were felonies of the third degree, and one was a felony of the fourth degree, (2) three counts of trafficking in cocaine in violation of R.C. 2925.03, felonies of the third degree, (3) two counts of aggravated trafficking in drugs in violation of R.C. 2925.03, felonies of the third degree, where the substance trafficked was fentanyl, a schedule II drug, and (4) one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), a felony of the first degree. All of the trafficking counts specified that that the offenses were committed in the vicinity of a juvenile, and three of the trafficking counts contained a specification seeking the forfeiture of $1,035 in cash that was found on appellant at the time he was arrested.

{¶ 3} A three-day bench trial was held in October 2016. At trial, the state presented testimony from Officer Nick DeRose and Lieutenant Douglas Ventre regarding CCNU's investigation into appellant's distribution of narcotics in and around New Richmond, Clermont County, Ohio. The state also presented testimony from James Burress, a confidential informant who purchased drugs from appellant, and from Brandy Moore and Rex Perkins, two individuals involved in appellant's drug-trafficking business.

{¶ 4} Officer DeRose testified that on January 22, 2016, Burress contacted him to express concern with the flood of heroin that had entered the New Richmond area. Burress, an admitted drug addict, informed DeRose that appellant was the source of the drugs, and Burress agreed to serve as a confidential informant as he knew appellant and had purchased drugs from him in the past.

{¶ 5} Working with DeRose, Burress arranged to purchase heroin and cocaine from appellant on six different occasions. Burress testified he called and texted appellant from the residence he was staying at on Weil Road in New Richmond, Clermont County, Ohio to set up the controlled buys. During these conversations, the type of drug, quantity to be purchased, and amount to be paid were established. Appellant directed Burress to various locations to complete the transactions. Two of the controlled buys occurred at Perkins' apartment, located at 718 Washington Street in New Richmond, Clermont County, Ohio. The other four controlled buys occurred on or near Eastern Avenue in Hamilton County, Ohio.

{¶ 6} At trial, Perkins testified he had known appellant for about nine or ten months and appellant dealt him heroin and crack cocaine. About three or four months before appellant was arrested in February 2016, appellant approached Perkins about establishing his apartment as a "trap house" where drugs would be sold. Perkins permitted appellant to sell drugs out of his apartment in exchange for appellant "tak[ing] care" of him by giving him drugs, picking things up for him from the store, and caring for the apartment. Perkins allowed his apartment to be used as a trap house, even though this violated the terms of a Cooperating Individual Agreement he signed with CCNU when he became a confidential informant in August 2014.

{¶ 7} Perkins testified appellant personally sold drugs out of the apartment "[b]asically all day, every day." Once the apartment was established as a trap house, appellant turned the day-to-day dealings over to Moore and Miguel "Mike" Rivera. According to Perkins, Moore was at his apartment "every day" to sell heroin and cocaine.

{¶ 8} Moore testified she met appellant in November 2015, and she bought drugs from him in New Richmond. Moore and appellant reached an agreement wherein Moore would sell appellant's drugs in exchange for appellant giving her drugs to feed her own addiction. Moore stated she and Rivera both sold drugs out of Perkins' apartment. For two or three months, Moore stayed at Perkins' apartment and sold drugs "all day long," completing more than 100 drug transactions for appellant. Moore explained she received a new supply of drugs from appellant every day, usually around five grams of heroin and cocaine. Although the drugs were sold for "street prices," appellant dictated how much of the drugs were to be sold and for what price. Once the drugs were sold, Moore would turn the money over to appellant. Occasionally, Moore would drive appellant "downtown" to buy more drugs from his supplier. She would also occasionally bring buyers, such as Burress, to appellant.

A. First Controlled Buy-January 25, 2016 (Count One)

{¶ 9} On January 25, 2016, while working with CCNU, Burress arranged to purchase 2 grams of heroin from appellant. The sale occurred at Perkins' apartment in New Richmond. Prior to arriving at the apartment, Burress met with DeRose. Burress was searched, a wire placed on him, and $365 given to him for the purchase of the heroin.

{¶ 10} DeRose drove Burress to the apartment and waited inside his car while Burress went into the apartment to purchase the drugs. Burress testified he had to settle an old debt owed to appellant before he could make the purchase. After giving appellant money to clear up this debt, appellant sold him the heroin they had agreed to over the phone. Burress explained appellant personally weighed the drugs and handed them over to him. Burress left the apartment and returned to DeRose's car, where he turned over drugs. The drugs were tested at the Hamilton County Crime Laboratory ("HCCL") and consisted of 1.219 grams of heroin.

B. Second Controlled Buy-February 1, 2016 (Count Two)

{¶ 11} On February 1, 2016, Burress arranged a second buy with appellant for the purchase of 2 grams of heroin for $280. Appellant told Burress to go to Perkins' apartment for the exchange.

{¶ 12} Burress again met with DeRose, where he was searched, a wire placed on him, and $280 given to him for the purchase of the heroin. DeRose drove Burress to the apartment and waited inside his car while Burress went inside to purchase the drugs. Appellant was not present at Perkins' apartment for the transaction. Instead, Rivera handed the drugs over to Burress in exchange for $280. After leaving the apartment, Burress turned the drugs over to DeRose. The drugs were subsequently tested at HCCL and consisted of .930 grams of heroin.

C. Third Controlled Buy-February 18, 2016 (Count Three)

{¶ 13} Following the first two buys, DeRose had Burress arrange to buy a larger amount of heroin from appellant. On February 18, 2016, Burress contacted appellant by phone from a residence on Weil Road in New Richmond, and the terms of the purchase were agreed upon-5 grams of heroin in exchange for $850. Appellant told Burress New Richmond was getting "too hot" and he wanted to conduct the transaction at a UDF in Hamilton County.

{¶ 14} Burress met with DeRose, where both Buress and his car were searched, a wire placed on him, and $850 given to him for the purchase of the heroin. Burress drove himself to the UDF, where law enforcement officers were stationed to monitor the exchange. Once at UDF, Burress received a phone call from appellant, directing him to a home on Eastern Avenue in Hamilton County. Burress, followed by law enforcement, drove to the new location.

{¶ 15} Once inside the home on Eastern Avenue, Burress gave appellant the agreed $850 in exchange for the drugs. Burress explained appellant weighed the drugs before handing them over. At the time of the exchange, Burress noticed there was a juvenile boy and two juvenile girls present. Burress testified the two girls were between 12 and 16 years of age.

{¶ 16} After completing the transaction, Burress left the Eastern Avenue residence and met with DeRose to turn over the drugs he received from appellant. The drugs were tested at HCCL and were found to be 3.1 grams of heroin.

D. Fourth Controlled Buy-February 22, 2016 (Count Four)

{¶ 17} On February 22, 2016, Burress arranged to purchase 8 grams of crack cocaine from appellant for $750. Appellant instructed Burress to go to the Eastern Avenue residence for the exchange.

{¶ 18} Burress again met with DeRose. Both Buress and his car were searched, a wire was placed on him, and $750 given to him for the purchase of the cocaine. Burress drove to the Eastern Avenue residence, entered the home, and purchased the drugs from appellant. The two female juveniles who had been present at the February 18, 2016 buy were present for this exchange. While purchasing the drugs, appellant told Burress about a problem he was having in New Richmond with a couple of his dealers. Burress testified appellant told him that "Mike-Miguel and Brandy had had a situation where * * * Mike was taking a package to Brandy and it either didn't get there or got there light * * * [and appellant] had to go down and straighten it out." During this transaction, Burress noticed handguns in the residence, which were laying out in the open.

{¶ 19} While Burress was inside the Eastern Avenue residence, he was being monitored by law enforcement. Lieutenant Ventre monitored the controlled buy from a vehicle parked near the residence. Ventre observed Burress, appellant, and a young female, later identified as 14-year-old L.M., enter the residence where the drug transaction took place. After Burress purchased the drugs and exited the home, Ventre saw appellant and L.M. leave the residence together. Ventre also saw a boy in his "mid-teens" standing at the front door of the Eastern Avenue residence.

{¶ 20} After leaving the Eastern Avenue residence, Burress met with DeRose to turn over the drugs he had purchased from appellant. The drugs were tested at HCCL and found to consist of 5.034 grams of cocaine.

E. Fifth Controlled Buy-February 24, 2016 (Count Five)

{¶ 21} On February 24, 2016, DeRose had Burress contact appellant to see about purchasing 6 grams of heroin and a firearm. Appellant offered to sell the drugs and firearm in exchange for $1,350. Burress was directed to the Eastern Avenue residence to make the exchange.

{¶ 22} Burress met with DeRose. Both Buress and his car were searched; Burress was fitted with a wire, and given $1,350 for the purchase of the gun and heroin. Burress drove to the Eastern Avenue residence and purchased the drugs from appellant. Appellant did not sell Burress a gun at this time. Appellant told Burress he would give him a gun later, as he "did not like to carry guns and dope at the same time." Burress testified three juveniles, who were between the ages of 14 and 16, were present at the time he purchased the drugs.

{¶ 23} Ventre and other law enforcement officers monitored Burress' purchase. Ventre observed appellant, Burress, and two other adults enter the Eastern Avenue residence. While the adults were inside, Ventre saw a young child, somewhere between six and eight years of age, get out of the vehicle appellant had been traveling in and enter the residence.

{¶ 24} After making his purchase and leaving the Eastern Avenue residence, Burress met with DeRose. Burress turned over the drugs, which were subsequently tested at HCCL. The drugs consisted of 4.1 grams of heroin.

F. Sixth Controlled Buy-February 29, 2016 (Counts Six through Eleven)

{¶ 25} The final purchase took place on February 29, 2016. As CCNU intended to arrest appellant after this purchase, CCNU enlisted assistance from the Cincinnati Police Department. DeRose had Burress contact appellant to purchase 15 grams of heroin and 12 grams of crack cocaine. Appellant offered to sell the drugs in exchange for $2,800. Burress was directed to go to the Eastern Avenue residence and wait on appellant to make the exchange.

{¶ 26} Prior to driving to Eastern Avenue, Burress met with DeRose, both he and his car were searched, a wire placed on him, and $2,800 that had been xeroxed by law enforcement was given to him for the purchase of the cocaine and heroin.

Burress drove to Eastern Avenue and waited on appellant in his car. Burress was approached by another vehicle-a Hyundai Santa Fe that was driven by Donny Martin and contained Moore as a passenger. Moore had been in contact with appellant, who told her to pick up Burress and meet him at another location. Moore explained she was on her way to meet appellant to pick up drugs to sell and to drop off $900 she had made selling a previous batch of drugs for appellant.

{¶ 27} Burress got into the Santa Fe and the vehicle traveled south to meet appellant near River Road and Delhi Avenue in Cincinnati, Ohio. Martin parked the Santa Fe behind a Ford Expedition that appellant, an adult female, and four juveniles were traveling in. Burress approached appellant and gave him the $2,800 in exchange for the agreed upon drugs. Moore then gave appellant $900 and received crack cocaine and heroin from appellant.

{¶ 28} After the exchanges were made, the Expedition and Santa Fe drove away from the area. Each vehicle was stopped by law enforcement, who had continued to follow and monitor Burress after he left Eastern Avenue. The occupants of the Santa Fe were arrested and searched, and the drugs Burress and Moore possessed were taken into evidence. The drugs were later tested at HCCL. The drugs found in Burress' possession consisted of 5.328 grams of cocaine and 8.754 grams of heroin and fentanyl. The drugs found in Moore's possession consisted of 7.789 grams of cocaine and 8.613 grams of heroin and fentanyl.

{¶ 29} When the Expedition was stopped, officers found the vehicle occupied by appellant, an adult female, 14-year-old L.M., a girl in her "mid-teens," a girl around ten years of age, and a boy between seven and eight years of age. Appellant had in his possession $2,835, some of which was found in the vehicle's console and some of which was found in his pants pocket. Only $1,800 of the money found in appellant's possession was the "marked" money that had been xeroxed by law enforcement. Burress informed Ventre that appellant had put several thousand dollars in into a brown paper bag and left the bag on a stairwell in Delhi Avenue. Although officers searched the area, they were unable to locate the bag.

{¶ 30} Recordings from the wire Burress wore to each of the controlled buys were admitted into evidence. The drugs recovered from each of the controlled buys and the laboratory results from testing said drugs were also admitted into evidence. Thereafter, the state rested and defense counsel moved for acquittal pursuant to Crim.R. 29, arguing that the state had not proved venue in its case-in-chief. The trial court denied appellant's motion. Although the defense did not call any witnesses to testify on appellant's behalf, defense counsel introduced into evidence certain records pertaining to Burress' address and Burress' and Perkins' statuses as confidential informants. The trial court accepted these exhibits into evidence.

{¶ 31} Closing arguments were heard by the court, and the court took the matter under advisement. On November 15, 2016, the trial court found appellant guilty of all offenses. However, with respect to two of the trafficking in heroin offenses (counts one and two), the court determined that the state failed to present evidence that the offenses had been committed in the vicinity of a juvenile. Appellant was sentenced on December 21, 2016, to an aggregate prison term of 20 years and nine months and the $1,035 in cash found on appellant at the time of his arrest was ordered forfeited to CCNU.

{¶ 32} Appellant timely appealed his convictions, raising four assignments of error.

II. ANALYSIS

{¶ 33} Assignment of Error No. 1:

{¶ 34} THE EVIDENCE IS INSUFFICIENT TO ESTABLISH VENUE IN CLERMONT COUNTY BEYOND A REASONABLE DOUBT.

{¶ 35} In his first assignment of error, appellant argues the state failed to establish venue in Clermont County beyond a reasonable doubt.

{¶ 36} " 'Venue commonly refers to the appropriate place of trial for a criminal prosecution within a state.' " State v. Davis , 2017-Ohio-495, 85 N.E.3d 136, ¶ 21, quoting State v. Meridy , 12th Dist. Clermont No. CA2003-11-091, 2005-Ohio-241, 2005 WL 123993, ¶ 12. "Establishing the correct venue is imperative in order to 'give the defendant the right to be tried in the vicinity of his alleged criminal activity.' " (Emphasis sic.) State v. Baker , 12th Dist. Warren No. CA2012-12-127, 2013-Ohio-2398, 2013 WL 2635584, ¶ 11, quoting Meridy at ¶ 12. Proper venue ensures that "the state [does not] indiscriminately [seek] a favorable location for trial or [select] a site that might be an inconvenience or disadvantage for the defendant." Meridy at ¶ 12.

{¶ 37} "Venue is not a material element of any offense charged." Id. Nonetheless, the state must prove beyond a reasonable doubt that the crime charged was committed in the county where the indictment was returned and the trial held, unless the issue of venue is waived by the defendant. Id. ; Baker at ¶ 13. The standard for establishing venue is whether the defendant has a "significant nexus" with the county where the trial was held. State v. Mielke , 12th Dist. Warren No. CA2012-08-079, 2013-Ohio-1612, 2013 WL 1712872, ¶ 14 ; State v. Stone , 12th Dist. Warren No. CA2007-11-132, 2008-Ohio-5671, 2008 WL 4766829, ¶ 16. As a result, and pursuant to Ohio's venue statute, "[t]he trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and * * * in the territory of which the offense or any element of the offense was committed." R.C. 2901.12(A).

{¶ 38} Ohio's venue statute further provides that when an offender commits offenses in different jurisdictions as part of a course of criminal conduct, venue lies for all the offenses in any jurisdiction in which the offender committed one of the offenses or any element thereof. R.C. 2901.12(H). Offenses "committed as part of the same transaction or chain of events, or in furtherance of the same purpose or objective" serve as "prima-facie evidence of a course of criminal conduct." R.C. 2901.12(H)(3).

{¶ 39} In the present case, appellant was indicted and subsequently convicted in counts one through eight of the indictment of trafficking in heroin, fentanyl, and cocaine in violation of R.C. 2925.03(A)(1). This statute provides, in relevant part, that "[n]o person shall knowingly * * * [s]ell or offer to sell a controlled substance or a controlled substance analog." R.C. 2925.03(A)(1). In counts nine, ten, and eleven, appellant was indicted and convicted of trafficking in heroin, fentanyl, and cocaine in violation of R.C. 2925.03(A)(2), which provides that "[n]o person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or controlled substance analog is intended for sale or resale by the offender or another person." Finally, in count twelve, appellant was indicted and convicted of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), which provides that "[n]o person employed by, or associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection of an unlawful debt."

{¶ 40} Appellant argues that "venue [is] of paramount importance in Counts 1 and 2." He contends that "[i]f venue was not established in those particular two counts, a strong argument for the dismissal of the remaining counts could be made, as everyone agreed Counts 3-11 essentially took place in Hamilton County, and Count 12 encompassed, in part, the allegations in Counts 1 and 2."

{¶ 41} The state, however, alleges it established venue in Clermont County under R.C. 2901.12(H)(3) in three ways, any one of which is sufficient to establishing venue in Clermont County. Specifically, the state contends it introduced evidence demonstrating appellant had a "significant nexus" with Clermont County as appellant, through a continuing course of criminal conduct, (1) arranged to sell drugs to Burress, when the transactions were planned and agreed to while Burress was in Clermont County, (2) sold drugs to Burress in Clermont County, and (3) engaged in a pattern of corrupt activity in Clermont County.

A. Drug Transactions Planned and Agreed to in Clermont County

{¶ 42} This court has previously determined that venue is proper in a county where the terms of a drug transaction were discussed and agreed upon, even if only one party to the transaction is in the county when the agreement is reached. See Meridy , 2005-Ohio-241, 2005 WL 123993 at ¶ 10-24. In Meridy , a confidential informant, Rose, attempted to purchase crack cocaine from Jackson in Jackson's home in Clermont County. Id. at ¶ 2. Jackson, however, did not have the drugs on him; instead he obtained them by contacting his supplier, Meridy, who resided in Hamilton County. Id. Jackson would call Meridy from his Clermont County residence and the two would arrange the drug sales over the phone after "discussing such terms as price and quantity." Id. Jackson and Rose would then drive to Hamilton County to purchase the drugs from Meridy before returning to Jackson's home in Clermont County to divide the drugs. Id. Meridy was eventually arrested and charged with trafficking in crack cocaine in the Clermont County Court of Common Pleas. Id. at ¶ 3. A jury found Meridy guilty of these offenses. Id. at ¶ 7.

{¶ 43} On appeal, Meridy argued that venue in Clermont County was improper as "no drug activity involving him took place in Clermont County." Id. at ¶ 11. We disagreed, finding that "the evidence was sufficient to establish venue in Clermont County" as "[t]he evidence showed that there was a 'significant nexus' with Clermont County." Id. at ¶ 23. In finding venue proper, we stated:

There is little doubt that the transaction that formed the basis of the charges against [Meridy] was planned and agreed to during telephone conversations in Clermont County between [Meridy], who was in Hamilton County, and his co-conspirator, * * * Jackson, who was at his residence in Bethel, Clermont County. The evidence showed that [Meridy] and Jackson discussed the important terms of the drug sale, including price and quantity, during these telephone conversations.

Id.

{¶ 44} The present case is analogous to Meridy . Burress testified he called appellant from Weil Road in New Richmond, Clermont County, Ohio to arrange the drug transactions. During these phone calls, the type of drug, quantity to be purchased, and amount to be paid were agreed upon. Burress' testimony established a "significant nexus" with Clermont County and was sufficient to establish venue in Clermont County. See also State v. Potee , 2017-Ohio-2926, 90 N.E.3d 58, ¶ 27-28 (finding venue proper in Clermont County were there was testimony that the drug transaction was arranged in Clermont County even though the physical act of exchanging money for drugs occurred in Hamilton County).

{¶ 45} Appellant argues Burress' testimony is insufficient to establish venue as the state failed to introduce evidence corroborating that the phone calls were made while he was in Clermont County. Burress' telephone call logs were not introduced into evidence and neither Officer DeRose nor Lieutenant Ventre testified that a member of law enforcement was present for or observed the phone calls and text messages Burress and appellant exchanged. Appellant contends the lack of corroborating evidence, combined with the fact that Burress listed a Mt. Orab, Brown County, Ohio address as his residential address on the confidential informant paperwork he filled out for CCNU on January 22, 2016, raises serious doubt as to Burress being in Clermont County when he and appellant arranged the drug transactions.

{¶ 46} However, with respect to the Mt. Orab address, Burress testified the address was his mother's address. Although Burress used this address for mailing and probation purposes, he explained he lived with some friends on Weil Road in New Richmond, Clermont County, Ohio. Burress stated he was at the Weil Road address when he exchanged phone calls and text messages with appellant to arrange the drug transactions. Though there was no evidence introduced contradicting this testimony, appellant nonetheless argues Burress' testimony is insufficient to establish venue as "Burress was severely lacking in credibility." In support of his argument that Burress is not credible, appellant points to the fact that Burress admittedly lied about receiving an education at M.I.T. and told "different version[s]" about his interactions with police and appellant "to protect [him]self."

{¶ 47} "Credibility is not an issue in determining the sufficiency of the evidence [as it relates to venue], as all evidence must be construed in favor of the state."

State v. Stanley , 10th Dist. Franklin No. 06AP-65, 2006-Ohio-4632, 2006 WL 2575646, ¶ 10. See also State v. Williams , 4th Dist. Ross No. 709, 1980 WL 350985, *1 (Feb. 25, 1980). As Burress' testimony, if believed, would have convinced the average mind beyond a reasonable doubt that Clermont County was the proper venue, his testimony, on its own, was sufficient to establish venue in Clermont County. See Stanley. Moreover, we know the trial court found Burress' testimony credible, as the court specifically stated, "the Court [is] also finding that the testimony of the confidential informant is to be credible regarding his presence in Clermont County when he made the calls to [appellant]."

{¶ 48} Therefore, in accordance with R.C. 2901.12(H) and our precedent in Meridy , we conclude that venue in Clermont County, Ohio was proper as the state introduced evidence demonstrating appellant had a significant nexus with Clermont County. The drug transactions that formed the basis of the charges against appellant in counts one through three and counts five through eight were planned and agreed to in Clermont County. The remaining counts, counts four and nine through twelve, were committed as part of a course of criminal conduct as the offenses were committed in furtherance of appellant's objective in trafficking in cocaine, heroin, and fentanyl for profit. The state therefore presented sufficient evidence to establish venue in Clermont County.

B. Sale of Drugs to Burress in Clermont County

{¶ 49} The state also established venue when it introduced evidence that appellant, as part of a course of criminal conduct, sold drugs to Burress in Clermont County. Burress testified appellant personally sold him 1.219 grams of heroin at Perkins' apartment in New Richmond on January 25, 2016. Appellant also arranged a second sale of drugs to Burress at Perkins' apartment on February 1, 2016. Appellant had his associate, Rivera, handle the second transaction. Burress' testimony, combined with Perkin's testimony that appellant and Rivera sold drugs out of his apartment and he recalled seeing Burress and appellant inside his apartment in New Richmond, was sufficient to establish venue in Clermont County.

{¶ 50} Appellant contends that because Burress is an admitted liar and since a member of law enforcement did not observe him at Perkins' apartment at the time of the January 25, 2016 buy or February 1, 2016 buy, the court cannot rely on Burress' testimony to establish venue. However, as we stated above, "[c]redibility is not an issue in determining the sufficiency of the evidence [as it relates to venue], as all evidence must be construed in favor of the state." Stanley , 2006-Ohio-4632, 2006 WL 2575646 at ¶ 10. Here Burress' and Perkins' testimony, if believed, would have convinced the average mind beyond a reasonable doubt that Clermont County was the proper venue as appellant personally, and through his associates, sold drugs in that county. Accordingly, the trafficking in heroin offenses in counts one and two properly place venue in Clermont County. As the remaining counts were committed in a continuing course of criminal conduct, venue lies in Clermont County for these offenses. R.C. 2901.12(H).

C. Engaging in a Pattern of Corrupt Activity in Clermont County

{¶ 51} We also conclude that venue in Clermont County was established when the state introduced evidence that appellant engaged in a pattern of corrupt activity in the county. As discussed more thoroughly in our resolution of the second assignment of error, appellant and his associates, Perkins, Moore, and Rivera, were acting in an enterprise for the sale and distribution of illicit drugs for profit in Clermont County. In furtherance of this enterprise, appellant and his associates sold drugs out of Perkins' apartment in New Richmond, Clermont County, Ohio on a daily basis for more than three months. As the state introduced evidence that appellant operated his business, at least in part, out of Clermont County, venue in Clermont County was properly established. See, e.g., Davis , 2017-Ohio-495, 85 N.E.3d 136 at ¶ 26-28.

{¶ 52} Accordingly, for the reasons stated above, we find that the state presented sufficient evidence to establish venue in Clermont County. Appellant's first assignment of error is overruled.

{¶ 53} Assignment of Error No. 2:

{¶ 54} THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION OF THE CHARGE OF O.R.C. 2923.32(A)(1), ENGAGING IN A PATTERN OF CRIMINAL ACTIVITY.

{¶ 55} In his second assignment of error, appellant argues his conviction for engaging in a pattern of corrupt activity was not supported by sufficient evidence. Specifically, appellant argues the state failed to present evidence demonstrating he and his associates, such as Moore, Perkins, and Rivera, were in an enterprise that shared a "common purpose." He also contends the state failed to establish that "two or more charged acts occurred in furtherance of the enterprise." We find no merit to appellant's arguments.

{¶ 56} Whether the evidence presented at trial is legally sufficient to sustain a verdict is a question of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997) ; State v. Grinstead , 194 Ohio App.3d 755, 2011-Ohio-3018, 958 N.E.2d 177, ¶ 10 (12th Dist.). When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Paul , 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, 2012 WL 2877754, ¶ 9. Therefore, "[t]he 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.

{¶ 57} Appellant was convicted of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), which provides that "[n]o person employed by, or associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection of an unlawful debt." An "enterprise" includes "any individual, sole proprietorship, partnership, limited partnership, corporation, trust, union, government agency, or other legal entity, or any organization, association, or group of persons associated in fact although not a legal entity." R.C. 2923.31(C). Further, an enterprise "includes illicit as well as licit enterprises."

Id. A "pattern of corrupt activity" is defined as "two or more incidents of corrupt activity, whether or not there has been a conviction, that are related to the affairs of the same enterprise, are not isolated, and are not so closely related to each other and connected in time and place that they constitute a single event." R.C. 2923.31(E). As pertinent to this case, "corrupt activity" means "engaging in, attempting to engage in, conspiring to engage in, or soliciting, coercing, or intimidating another person to engage in" trafficking in drugs in violation of R.C. 2925.03. R.C. 2923.31(I)(2)(c).

{¶ 58} "When determining whether a group of people are associated-in-fact, a court will look to whether the group is a 'continuing unit that functions with a common purpose.' " Baker , 2013-Ohio-2398, 2013 WL 2635584 at ¶ 19, quoting Boyle v. United States , 556 U.S. 938, 948, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009). An association-in-fact enterprise must have three structural features: "a purpose, relationships among the associates, and longevity sufficient to permit the associates to pursue the enterprise's purpose." Id. , citing Boyle at 946, 129 S.Ct. 2237.

{¶ 59} The state presented evidence that, if believed, would have convinced a trier of fact beyond a reasonable doubt that appellant engaged in a pattern of corrupt activity when he engaged in multiple drug transactions in Clermont County and Hamilton County. Contrary to appellant's arguments, evidence was introduced demonstrating that he was in an associated-in-fact enterprise with a group of people that had a common purpose of selling drugs for profit and that he engaged in more than two incidents of drug trafficking in furtherance of this enterprise. Appellant sold or directed his associates, Moore and Rivera, to sell drugs for profit. On six occasions, from January 25 to February 29, 2016, appellant or one of his associates sold heroin, fentanyl, and cocaine to a confidential informant in exchange for more than $6,000. Two of the sales occurred at Perkins' apartment, an established "trap house." As Perkins explained, appellant and his associates, Moore and Rivera, used the apartment to sell drugs for about three or four months before appellant was arrested. Appellant personally sold drugs to Burress at the apartment on January 25, 2016. After setting up another sale with Burress over the phone, appellant had Rivera conduct the physical exchange of the drugs with Burress at the apartment on February 1, 2016. After these exchanges, Moore began selling drugs for appellant out of Perkins' apartment "all day long" for approximately two to three months. According to Moore, appellant provided her with a new supply of drugs "every day" and he dictated how much of the drugs were to be sold and for what price.

{¶ 60} Moore also brought buyers to appellant to purchase drugs. Moore testified that on February 29, 2016, she picked up Burress and transported him to appellant's location so that Burress could purchase drugs. Burress gave appellant $2,800 in exchange for 5.328 grams of cocaine and 8.754 grams of heroin and fentanyl. After appellant and Burress completed their transaction, she turned over $900 that she had made selling drugs for appellant. Appellant then gave Moore 7.789 grams of cocaine and 8.613 grams of heroin and fentanyl to sell for him.

{¶ 61} Appellant's argument that Moore and Perkins did not have a "common purpose" in the sale of the drugs because they did not receive a "financial gain" for the sale of the drugs is without merit. Both Perkins and Moore testified they profited from the sale of appellant's drugs out of the "trap house." In exchange for allowing his apartment to be used as a "trap house," Perkins received drugs, items he needed from the store, and care for his apartment. Moore also received drugs in exchange for selling drugs for appellant. The fact that Perkins' and Moore's profits from selling drugs were received in the form of goods (drugs) rather than money is immaterial.

{¶ 62} Accordingly, as the state introduced evidence demonstrating appellant was acting with others in an enterprise for the sale and distribution of illicit drugs in Clermont County and Hamilton County, we find that appellant's conviction for engaging in a pattern of corrupt activity was supported by sufficient evidence. See, e.g., Davis , 2017-Ohio-495, 85 N.E.3d 136 at ¶ 16-55. Appellant's second assignment of error is, therefore, overruled.

{¶ 63} Assignment of Error No. 3:

{¶ 64} THE EVIDENCE TO CONVICT [APPELLANT] WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 65} In his third assignment of error appellant contends his convictions for trafficking in heroin, trafficking in cocaine, aggravated trafficking in drugs, and engaging in a pattern of corrupt activity were against the manifest weight of the evidence as his convictions were "based primarily on the mostly uncorroborated testimony of Burress and Moore," two individuals who appellant contends have "credibility issues and strong motives to falsely implicate [him] in these matters."

{¶ 66} A manifest weight of the evidence challenge examines the "inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, 2012 WL 1940800, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the 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. Graham , 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, 2009 WL 1659049, ¶ 66. "While appellate review includes the responsibility to consider the credibility of witnesses and weight given to the evidence, 'these issues are primarily matters for the trier of fact to decide.' " State v. Barnes , 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, 2011 WL 4790887, ¶ 81, quoting State v. Walker , 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, 2007 WL 646257, ¶ 26. An appellate court, therefore, will overturn a conviction due to the manifest weight of the evidence only in extraordinary circumstances when the evidence presented at trial weighs heavily in favor of acquittal. Id. , citing Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541.

{¶ 67} We have thoroughly reviewed the record in the present case and conclude that appellant's convictions for trafficking in heroin, trafficking in cocaine, aggravated trafficking in drugs, and engaging in a pattern of corrupt activity are not against the manifest weight of the evidence. The state presented testimony demonstrating that appellant and his associates, Rivera and Moore, were in the business of selling narcotics in Clermont County and Hamilton County. Testimony was offered by Moore and Perkins that a substantial portion of appellant's business was conducted out of Perkins' apartment in New Richmond, Ohio. They explained that appellant, Moore, or Rivera sold drugs out of Perkins' apartment "every day" for a period of more than three months. Burress testified that between January 25 and February 29, 2016, appellant offered to sell him and did sell him narcotics on six different occasions, either personally or through his associate Rivera. Moore and Burress also testified that appellant delivered drugs to Moore for sale on February 29, 2016. According to Burress and Lieutenant Ventre, the drug trafficking offenses that occurred on February 18, February 22, February 24, and February 29, 2016 all occurred in the presence or vicinity of a juvenile. Testing of the drugs sold to Burress and given to Moore demonstrated that the drugs consisted of heroin, fentanyl, and cocaine.

{¶ 68} Although appellant challenges the credibility of Burress' and Moore's testimony, the trial court, as the original trier of fact, "was in the best position to judge the credibility of witnesses and the weight to be given the evidence." State v. Patterson , 12th Dist. Butler No. CA2001-09-222, 2002-Ohio-5996, 2002 WL 31443546, ¶ 12. Appellant's convictions are not against the manifest weight of the evidence merely because the trier of fact believed the testimony of the state's witnesses. State v. Burrell , 12th Dist. Fayette No. CA2016-04-005, 2016-Ohio-8454, 2016 WL 7626283, ¶ 22 ; State v. Lunsford , 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, 2011 WL 6382534, ¶ 17.

{¶ 69} Accordingly, we conclude that the trial court did not lose its way or create such a manifest miscarriage of justice such that appellant's convictions must be reversed and a new trial ordered. Appellant's third assignment of error is, therefore, overruled.

{¶ 70} Assignment of Error No. 4:

{¶ 71} [APPELLANT] WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

{¶ 72} In his fourth assignment of error, appellant argues he received ineffective assistance of counsel. Specifically, appellant argues trial counsel was ineffective for not properly cross-examining Burress about statements Burress made to defense counsel during a pretrial interview held on June 29, 2016.

{¶ 73} At trial, before cross-examining Burress, defense counsel revealed that he took notes during the June 29, 2016 interview and purportedly had Burress sign the notes at the conclusion of the meeting. Defense counsel's notes indicated that Burress stated he had acted as a confidential informant for CCNU in exchange for assistance in gaining custody of his children and for leniency in his own criminal case, rather than out of a civic interest in stopping the flood of heroin to New Richmond. The notes also indicated appellant never sold drugs to Burress in Clermont County and that it was "Mike" Rivera who sold drugs to Burress in New Richmond on two occasions. Defense counsel argued the notes were admissible pursuant to Evid.R. 801(D) and could be used for impeachment purposes.

{¶ 74} The state, however, argued that the notes were inadmissible as defense counsel failed to disclose them as required by Crim.R. 16(H) and the notes constituted hearsay. The state further argued that admission of the notes would require defense counsel to act as a witness in the case, as defense counsel would be called to testify as to the circumstances surrounding the making of the document.

{¶ 75} The trial court did not make a ruling on the record as to the admissibility of the interview notes or defense counsel's ability to question Burress about the June 29, 2016 interview. Defense counsel did not seek to introduce the interview notes when cross-examining Burress. Instead, defense counsel proffered the notes at the close of trial. Appellant now contends that Burress' statement to defense counsel was relevant for impeachment purposes and was "significant * * * [in] suggesting that venue had not been established in the matter." Appellant therefore argues defense counsel was ineffective for not properly cross-examining Burress about his statements during the interview.

{¶ 76} To prevail on an ineffective assistance of counsel claim, an appellant must establish that (1) his trial counsel's performance was deficient and (2) such deficiency prejudiced the defense to the point of depriving the appellant of a fair trial. Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Trial counsel's performance will not be deemed deficient unless it "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. To show prejudice, the appellant must prove there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other. State v. Madrigal , 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).

{¶ 77} "The scope of cross-examination falls within the ambit of trial strategy, and debatable trial tactics do not establish ineffective assistance of counsel." State v. Conway , 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101. In evaluating trial counsel's performance, the reviewing court must indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. State v. Hendrix , 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, 2012 WL 5995043, ¶ 14.

{¶ 78} The record reveals that even without admission of the interview notes, defense counsel was able to challenge Burress' credibility and recollection of events. Defense counsel got Burress to admit that he was not always an honest man, he had a prior felony conviction for use of a controlled substance, he had lied about attending M.I.T., he had violated his probation, and he had assisted CCNU's investigation in hopes that he would be able to get into a drug treatment program in lieu of receiving a prison term for violating his probation. Although defense counsel did not reference his June 29, 2016 interview of Burress during his cross-examination, defense counsel did question Burress about whether he told "different versions" of events from his trial testimony about his interactions with the police and appellant. Burress admitted he had told different versions, although he maintained he only did so to protect himself. Defense counsel, therefore, successfully challenged Burress' credibility on cross-examination and defense counsel's performance did not fall below an objective standard of reasonableness. See, e.g., State v. Murphy , 12th Dist. Butler No. CA2009-05-128, 2009-Ohio-6745, 2009 WL 4896231, ¶ 32-36.

{¶ 79} Further, contrary to appellant's arguments, he was not prejudiced by trial counsel's cross-examination of Burress.

Though appellant believes additional questioning would have demonstrated that venue in Clermont County had not been established, the record reveals that defense counsel cross-examined Burress on this precise issue. For instance, counsel questioned Burress about where he resided, the location where the phone calls arranging the drug transactions originated, and whether appellant was present at Perkins' apartment in New Richmond for the drug transactions involved in counts one and two. As the trial court specifically found Burress' testimony regarding his presence in Clermont County when he exchanged phone calls with appellant to set up the drug transactions credible, and such evidence was sufficient to establish venue under Meridy , 2005-Ohio-241, 2005 WL 123993, we find that appellant cannot establish the prejudice prong of Strickland . Appellant's argument that defense counsel was ineffective is, therefore, without merit. Appellant's fourth assignment of error is overruled.

III. CONCLUSION

{¶ 80} Having found appellant's assignments of error to be without merit, we hereby affirm appellant's convictions for engaging in a pattern of corrupt activity, aggravated trafficking in drugs, and trafficking in heroin and cocaine.

{¶ 81} Judgment affirmed.

S. POWELL and RINGLAND, JJ., concur.

      At the time Burress agreed to serve as a confidential informant he was on probation and was facing an obstruction charge, which, if convicted, would have been a violation of his probation.

      Prior to the Santa Fe being stopped by law enforcement, Moore concealed the drugs she received from appellant inside her pants, near her pelvic region. She surrendered the drugs to Officer DeRose after her arrest.

      The recording from the February 18, 2016 buy did not capture Burress' purchase of the drugs from appellant, as the transaction occurred outside the range of the Bluetooth device that was used to operate the wire Burress was wearing.

      {¶ a} At trial, defense counsel questioned Burress as follows regarding the "different versions" of events he had told:
      {¶ b} Q: Now, have you told any different versions of what you've testified here today to anybody?
      {¶ c} A: Honestly, I'm sure that I have.
      {¶ d} * * *
      {¶ e} Q: Have you told a different version of what you've testified [to] here today?
      {¶ f} A: Yes.
      {¶ g} * * *
      {¶ h} Q: Okay. You've agreed that you've told a different version of what happened-
      {¶ i} A: I've only told a different version of what happened to protect myself when it was going on.

      Burress testified at trial that the controlled buys encompassing the charges set forth in counts one through three and counts five through eight were arranged with appellant through the exchange of phone calls and text messages while Burress was at a residence on Weil Road in New Richmond, Clermont County, Ohio. There was no testimony from Burress as to where he was located when the drug transaction encompassing count four was arranged with appellant. Nonetheless, venue in Clermont County for all charges was proper pursuant to R.C. 2901.12(H)(3).

      To the extent appellant is arguing that defense counsel was ineffective for failing to move to admit the interview notes into evidence, we find no merit to his argument. The interview notes constituted hearsay and were not admissible under Evid.R. 801(D)(1)(a), as Burress' statement to defense counsel was not given under oath while he was subject to cross-examination by the state. The notes were also not admissible as extrinsic evidence of a prior inconsistent statement under Evid.R. 613, as Burress' admitted to making the prior inconsistent statement. See State v. Mathes , 12th Dist. Clermont No. CA2012-03-028, 2013-Ohio-1732, 2013 WL 1799934, ¶ 9-10.


source: Caselaw Access Project

author: M. POWELL, J.

license: Public Domain

text:
    In the MATTER OF: B.H.H.
    NO. CA2016-10-069
    Court of Appeals of Ohio, Twelfth District, Clermont County.
    October 30, 2017
    Susan Zeller Dunn, 10921 Reed Hartman Way, Suite 111, Cincinnati, Ohio 45242, for appellant
    Jeffrey Hale, 101 North Riverside Drive, Batavia, Ohio 45103, for appellee
   M. POWELL, J.

{¶ 1} Appellant, M.S.H. ("Father"), appeals a decision of the Clermont County Court of Common Pleas, Juvenile Division, denying his motion to modify a prior custody order.

{¶ 2} Father and appellee, A.M.T. ("Mother"), are the parents of a ten-year-old son. The parties were never married. On November 12, 2014, the parties entered into a joint shared parenting plan pursuant to R.C. 3109.04(D)(1)(a)(i). By entry filed the same day, the juvenile court adopted the parties' shared parenting agreement as the order of the court. Both parents were designated as residential parents. Father was awarded parenting time from Thursday after school until Sunday at 4:00 p.m.; Mother was awarded parenting time from Sunday at 4:00 p.m. until Thursday morning when the child goes to school.

{¶ 3} In July 2015, Father filed a Motion to Modify Order Regarding Custody and Allocation of Parenting Time. The motion alleged there "ha[d] been a change of circumstances regarding the care, custody and control of the minor child, and it is in the best interest of the minor child to grant Father sole custody." In an affidavit attached to the motion, Father asserted that Mother's relocation in violation of the shared parenting agreement and her failure to communicate with Father regarding the child's enrollment for the 2015-2016 school year constituted changes in circumstances for the child.

{¶ 4} On March 28, 2016, Father filed a Motion to Modify Order Regarding Custody, Allocation of Parenting Time and Child Support. Once again, Father asserted there "ha[d] been a change of circumstances regarding the care, custody and control of the minor child, and it is in the best interest of the minor child to grant Father sole custody." Neither motion specifically sought termination of the shared parenting agreement.

{¶ 5} Father's March 28, 2016 motion proceeded to an evidentiary hearing on August 29, 2016. Father, the child's therapist, the child's teacher in first, second, and third grades, and the school principal testified on behalf of Father; Mother testified on her own behalf. Testimony at the hearing revealed that the child is very intelligent with behavioral issues. Specifically, the child is unwilling to complete his homework and will cry when asked to do so. He is very easily flustered and becomes "frustrated about really small things" and as a result, he hits and scratches himself at school and has had several toileting incidents while in school. The child started seeing the therapist in July 2015 and typically sees her on a weekly basis during Father's parenting time. The therapist has diagnosed the child with selective mutism, a form of anxiety disorder. At the time of the hearing, the child was almost nine years old and had just started third grade.

{¶ 6} Testimony at the hearing further revealed that Father is married to a woman who has two children and who lives in Florence, Kentucky. Father has maintained his residence in Mt. Orab, Ohio and divides his time between the two residences. Mother relocated to West Union, Ohio and lives with her boyfriend. Mother's relocation was anticipated at the time the parties entered into the shared parenting agreement on November 12, 2014, and occurred mere weeks later. The parties agreed that in return for Mother's relocation, the child would remain in his current school and Father's child support obligation would be reduced.

{¶ 7} In an order filed on September 14, 2016, the juvenile court treated Father's motion as one to modify a prior custody decree pursuant to R.C. 3109.04(E)(1)(a), thereby requiring the court to first find a change in circumstances before considering whether the modification was in the child's best interest. The juvenile court found that the change in circumstances "must have arisen subsequent to the Shared Parenting Plan, or [was] unknown to the Court at the time," and "must be as to the minor child or the residential parent, which is in this case the Mother."

{¶ 8} The juvenile court found that Father had failed to establish a change in circumstances as required under R.C. 3109.04(E)(1)(a) and denied Father's motion as follows:

In the instant cause, there are only two changes in the parties' and the minor child's circumstances: (1) The Mother relocated to West Union, Ohio; however, this was anticipated at the time of the execution of the parties' Shared Parenting Plan, the Father agreed to a downward deviation of child support in return for this relocation, and it happened mere weeks after the execution of the Plan in 2014; and (2) The Father remarried and currently divides his time between his home in Mt. Orab and his wife's residence in Florence, Kentucky.
All other circumstances regarding the child's behavioral challenges, his toileting issues, his dental problems, as well as the parties' inability to communicate effectively other than by text or e-mail, were in existence prior to, and at the time of, the execution and filing of the Shared Parenting Plan with this Court.
For the foregoing reasons, the Court finds that there has been insufficient proof of a change of circumstances in the minor child or in the Mother, who is the residential parent.

{¶ 9} Father now appeals, raising one assignment of error:

{¶ 10} WHETHER THE TRIAL COURT PROPERLY APPLIED OHIO REVISED CODE § 3109.04 IN DETERMINING THE THRESHOLD EVIDENCE REQUIRED BEFORE A SHARED PARENTING PLAN MAY BE TERMINATED AND SOLE CUSTODY AWARDED.

{¶ 11} Father challenges the juvenile court's denial of his motion to modify a prior custody order, raising the following four issues: (1) because Father's motion sought to terminate the shared parenting agreement, the juvenile court erred in applying R.C. 3109.04(E)(1)(a) and should have instead applied R.C. 3109.04(E)(2)(b) or (c) ; (2) the juvenile court erred "when it stated as a matter of law that [R.C.] 3109.04(E)(1)(a) only requires the court to consider a change of circumstances in the residential parent and/or the subject child of a shared parenting decree;" (3) the juvenile court erred when it designated Mother as the only residential parent of the child; and (4) the juvenile court erred when it failed to consider the child's "entry into psychological therapy" as a change in circumstances.

{¶ 12} R.C. 3109.04(E)(1)(a) provides that a trial court "shall not modify a prior decree allocating parental rights and responsibilities" unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, a change in circumstances regarding "the child, the child's residential parent, or either of the parents subject to a shared parenting decree" and the modification is in the best interest of the child.

{¶ 13} R.C. 3109.04(E)(2)(b) provides that a trial court "may modify the terms" of a shared parenting plan approved by the court and incorporated by it into the shared parenting decree upon its own motion at any time if the court determines that the modification is in the best interest of the child or upon the request of one or both of the parents. R.C. 3109.04(E)(2)(c) provides that a trial court "may terminate a prior final shared parenting decree" that includes a shared parenting plan approved under R.C. 3109.04(D)(1)(a)(i)"upon the request of one or both of the parents or whenever it determines that shared parenting is not in the best interest of the children." In contrast to the modification of a prior decree allocating parental rights and responsibilities under R.C. 3109.04(E)(1)(a), neither the modification of the terms of a shared parenting plan under R.C. 3109.04(E)(2)(b) nor the termination of a shared parenting plan under R.C. 3109.04(E)(2)(c) require a showing of a change in circumstances.

{¶ 14} We first address Father's assertion that notwithstanding the motion's caption, his March 28, 2016 motion was a motion to terminate the parties' shared parenting agreement.

{¶ 15} As stated above, Father's motion alleged there had been a change in circumstances regarding the child and thus, it was in the best interest of the child to grant Father sole custody. At the outset of the evidentiary hearing, the juvenile court identified Father's motion as a "motion to modify prior custody order." Father's counsel did not interject or otherwise tell the juvenile court that the motion was one to terminate the shared parenting agreement. During the hearing, Father presented evidence of change in circumstances regarding himself, Mother, and the child, thus inducing Mother to defend on that basis. It was not until Father filed his post-hearing, written closing arguments that he argued, for the first time, that his motion was one to terminate the shared parenting agreement pursuant to R.C. 3109.04(E)(2)(c).

{¶ 16} Although Father's motion sought sole custody and control of the child, this does not make Father's motion one to terminate the parties' shared parenting agreement. In this regard, R.C. 3109.04(L)(5) and (6) generally provide that "unless the context clearly requires otherwise," both parents subject to a shared parenting plan "have 'custody of the child' or 'care, custody, and control of the child' " and are "the 'residential parent,' the 'residential parent and legal custodian,' or 'the custodial parent' of the child." These statutory provisions make clear that a shared parenting plan may designate one of the parents as residential parent and legal custodian of the child.

{¶ 17} In light of the foregoing, we find the juvenile court properly treated Father's motion as a motion to modify a prior custody order. Because Father's motion was not a motion to terminate the parties' shared parenting agreement, R.C. 3109.04(E)(2)(c) does not apply and the juvenile court did not err in not considering the statutory provision.

{¶ 18} In its decision denying Father's motion to modify custody, the juvenile court stated that a change in circumstances under R.C. 3109.04(E)(1)(a)"must be as to the minor child or the residential parent, which is in this case the Mother." We agree with Father that the juvenile court erred in considering Mother as the only residential parent. The parties' joint shared parenting agreement specifically designated both "Mother and Father * * * as the residential parents without regard to where the child is physically located[.]"

{¶ 19} We further find the juvenile court erred when it stated that under R.C. 3109.04(E)(1)(a), a court need only find a change in circumstances regarding "the minor child or the residential parent[.]" R.C. 3109.04(E)(1)(a) plainly requires a change in circumstances regarding "the child, the child's residential parent, or either of the parents subject to a shared parenting decree ." (Emphasis added.) Both Father and Mother are parents subject to the shared parenting decree. However, we find this error to be harmless. The only change claimed by Father in his own circumstances was his marriage and dividing his time between living with his wife in her Florence, Kentucky home and Father's own home in Mt. Orab. As discussed below, the juvenile court considered Father's living arrangements in deciding Father's motion.

{¶ 20} We now address whether the juvenile court improperly applied R.C. 3109.04(E)(1)(a) rather than R.C. 3109.04(E)(2)(b). In 2007, the Ohio Supreme Court addressed the proper application of R.C. 3109.04(E)(1)(a) and 3109.04(E)(2)(b) with respect to modifying the designation of residential parent and legal custodian of a child. The specific issue presented to the supreme court was as follows:

Is a change in the designation of residential parent and legal custodian of children a "term" of a court approved shared parenting decree, allowing the designation to be modified solely on a finding that the modification is in the best interest of the children pursuant to R.C. 3109.04(E)(2)(b) and without a determination that a "change in circumstances" has occurred pursuant to R.C. 3109.04(E)(1)(a) ? The answer to this question is "no."

Fisher v. Hasenjager , 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 1.

{¶ 21} The supreme court first held that "[w]hen a court designates a residential parent and legal custodian, the court is allocating parental rights and responsibilities." Id. at ¶ 23. Likewise, a "court also allocates parental rights and responsibilities when it issues a shared-parenting order." Id. at ¶ 24. "Once a shared-parenting decree has issued, R.C. 3109.04(E) governs modification of the decree[.]" Id. at ¶ 11.

{¶ 22} After analyzing the language of both R.C. 3109.04(E)(1)(a) and 3109.04(E)(2)(b) and the statutory difference between a shared parenting order or decree and a shared parenting plan, the supreme court held that "[a]n allocation of parental rights and responsibilities is a designation of the residential parent and legal custodian" which is "made by the court in an order or decree. Therefore, the designation of residential parent or legal custodian cannot be a term of shared-parenting plan, and thus cannot be modified pursuant to R.C. 3109.04(E)(2)(b)." Fisher , 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546 at ¶ 26, 31. Rather, " R.C. 3109.04(E)(1)(a) controls when a court modifies an order designating the residential parent and legal custodian." Id. at ¶ 26. By contrast, " R.C. 3109.04(E)(2)(b) * * * allows only for the modification of the terms of shared-parenting plan." Id. at ¶ 27. Such terms include a child's "physical living arrangements, child support obligations, provision for the children's medical and dental care, school placement, and * * * holidays[.]" Id. at ¶ 28.

{¶ 23} Because Father's March 28, 2016 motion sought to modify the allocation of parental rights and responsibilities by asking the juvenile court to re-designate the residential parent and legal custodian under the shared parenting agreement and grant sole custody of the child to Father, R.C. 3109.04(E)(1)(a) applied, and not R.C. 3109.04(E)(2)(b). Id. at ¶ 26 -27. The juvenile court, therefore, did not err in analyzing Father's motion pursuant to R.C. 3109.04(E)(1)(a).

{¶ 24} As the juvenile court was asked to re-designate parental rights and responsibilities, it was required to first find that a change in circumstances occurred to warrant a change in legal custodianship pursuant to R.C. 3109.04(E)(1)(a). Pierson v. Gorrell , 12th Dist. Butler No. CA2011-11-216, 2012-Ohio-3878, 2012 WL 3641630, ¶ 12. Although R.C. 3109.04 does not define "change in circumstances," Ohio courts have generally held the phrase to denote "an event, occurrence, or situation which has a material and adverse effect upon the child." Id. at ¶ 13. "In order to warrant the abrupt disruption of the child's home life, the change in circumstances must be one 'of substance, not a slight or inconsequential change.' " Id. , quoting Davis v. Flickinger , 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). "In determining whether a 'change' has occurred * * * a trial judge must have wide latitude in considering all the evidence before him * * * and such a decision must not be reversed absent an abuse of discretion." Id.

{¶ 25} Father argues the juvenile court erred in failing to identify the child's "entry into psychological therapy" as a change in circumstances. As stated above, the child started seeing a therapist in July 2015, was diagnosed with selective mutism, a form of anxiety disorder, and typically sees the therapist on a weekly basis during Father's parenting time. In its decision denying Father's motion, the juvenile court did not specifically consider the fact that the child started counseling with the therapist several months after the juvenile court adopted the parties' shared parenting agreement.

{¶ 26} At the evidentiary hearing, the therapist testified that she first started seeing the child in July 2015 when he was brought in by Father, and that the child continues to be a patient. The therapist described the child as a very guarded child who struggles with communicating his feelings and who typically stops talking when they start working on feelings or communication. Nonetheless, the therapist recommended that the child continue counseling as he "ha[d] opened up" and counseling was "very beneficial" to him. The therapist further testified she had never met Mother but had recently talked to her on the phone. The record shows that while Father sent an email to Mother in July 2015 informing her that the child's pediatrician recommended counseling and that the child was to "begin the counseling this week," Father did not provide the therapist's contact information to Mother in his email and did not invite Mother to the initial consultation. It was not until February or March 2016 that Father provided Mother with the therapist's contact information, and August 2016 that Mother was finally able to communicate with the therapist.

{¶ 27} While the child's counseling with the therapist indicates a change in circumstances, no evidence was presented at the hearing that counseling and diagnosing the child with selective mutism had a material and adverse effect on him. To the contrary, the therapist testified that counseling was very beneficial to the child and therefore recommended that it continue. The juvenile court, therefore, did not abuse its discretion in failing to consider the child's diagnosis and counseling as change in circumstances of great significance.

{¶ 28} Father does not challenge the juvenile court's determination that several changes in the parties' and the child's circumstances were either in existence before the shared parenting agreement or of little significance. Nevertheless, a thorough review of the record supports the juvenile court's determination that neither Mother's relocation nor Father's marriage and his dividing his time between his own home in Ohio and his wife's home in Kentucky were changes in circumstances. The record shows that Mother's relocation was anticipated at the time the parties entered into the shared parenting agreement, and in return for agreeing to the relocation, Father's child support obligation was to be reduced. While Father's marriage and new living arrangement may be a change in circumstances, no evidence was presented at the hearing that it had a material and adverse effect on the child.

{¶ 29} A thorough review of the record further supports the juvenile court's determination that circumstances regarding the child's behavioral issues, toileting issues, and dental problems, as well as the parties' inability to communicate effectively other than by text or e-mail were not changes in circumstances as they were in existence either before or at the time the parties entered into the shared parenting agreement. Testimony at the hearing indicates that the child's behavioral issues, toileting incidents, and dental problems began before the parties' shared parenting agreement. Likewise, testimony at the hearing indicates that the parties' inability to communicate effectively, including by text or e-mail, started in 2012, thus before the parties' shared parenting agreement.

{¶ 30} We therefore find the juvenile court did not err in determining that a change in circumstances did not occur regarding the child, Mother, or Father. Father failed to establish that the parties' inability to communicate effectively, the child's diagnosis, counseling, behavioral issues, toileting incidents, and dental problems, Mother's relocation, and Father's marriage and living arrangement were an "event, occurrence, or situation" which materially and adversely affected the child, or that the change in circumstances were "of substance" and not a "slight or inconsequential change." Consequently, the juvenile court did not err in denying Father's motion to modify a prior custody order.

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

{¶ 32} Judgment affirmed.

S. POWELL, P.J., and PIPER, J., concur.

      Following his July 2015 motion to modify a prior custody order, Father filed an emergency motion regarding the child's school enrollment and a motion to compel Mother to comply with Father's discovery requests. The juvenile court denied Father's motion to compel in January 2016. The next day, Father voluntarily "dismisse[d] the within matter without prejudice as to refiling" pursuant to Civ.R. 41(A). The record does not indicate whether Father's voluntary dismissal related to his July 2015 motion to modify a prior custody order or to his emergency motion and/or motion to compel. Subsequently, Father filed his March 2016 Motion to Modify Order Regarding Custody, Allocation of Parenting Time and Child Support.


text:
    In the MATTER OF: B.T.H.
    NO. CA2017-06-080
    Court of Appeals of Ohio, Twelfth District, Butler County.
    October 30, 2017
    Amy R. Ashcraft, P.O. Box 172, Seven Mile, Ohio 45062, Guardian Ad Litem
    Debra R. Rothstein, 10 Journal Square, 3rd Floor, Hamilton, Ohio 45011, for B.T.H.
    Mark W. Raines, 246 High Street, Hamilton, Ohio 45011, for appellant
    Carol A. Garner, 9435 Waterstone Boulevard, Suite 140, Cincinnati, Ohio 45249, Guardian Ad Litem for appellant
    Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for Butler County Children Services
   M. POWELL, J.

{¶ 1} Appellant, the biological mother of B.T.H. ("Mother"), appeals a decision of the Butler County Court of Common Pleas, Juvenile Division, granting permanent custody of B.T.H. to appellee, the Butler County Department of Job and Family Services ("JFS" or "the agency").

{¶ 2} In July 2014, JFS filed a complaint alleging that B.T.H. was a neglected, abused, and dependent child. The complaint alleged that Mother was living with B.T.H., age 10, in an unsanitary motel room. The complaint further alleged that Mother had mental health issues and an extensive history with the agency. Finally, the complaint alleged that Mother asked B.T.H. to "have sex" with a boy who was living at the motel.

{¶ 3} JFS' complaint requested an ex parte emergency order granting temporary custody of B.T.H. to her aunt or to JFS. The juvenile court found probable cause to believe that B.T.H.'s removal was necessary to prevent immediate or threatened physical or emotional harm. Based on this finding, the court issued an ex parte emergency order, which placed B.T.H. in the temporary custody of the aunt.

{¶ 4} In August 2014, JFS entered into a case plan with Mother with the goal of reunification. The case plan required Mother to complete a psychological evaluation to determine her mental health needs and follow any recommendations, comply with court orders, address her anger issues, follow through with her current mental health services, take her medications as prescribed, and secure stable housing and income. The case plan permitted Mother weekly supervised visits with B.T.H.

{¶ 5} In September 2014, the juvenile court found that B.T.H. was an abused and dependent child and that Mother was the perpetrator of the abuse. The court noted that B.T.H.'s father, after proper service, failed to appear and was found in default.

{¶ 6} In May 2015, B.T.H.'s aunt informed the agency that she could no longer maintain temporary custody of B.T.H. JFS then moved to transfer temporary custody to the agency. The court granted JFS' motion and the agency placed B.T.H. in foster care.

{¶ 7} In March 2016, JFS moved for permanent custody. The motion alleged that B.T.H. could not be placed with her parents within a reasonable time and should not be placed with her parents and that a grant of permanent custody in favor of the agency was in B.T.H.'s best interest. In July 2016, JFS filed a second motion for permanent custody with allegations identical in all pertinent respects to the allegations of the March 2016 motion. At a later hearing, the agency formally withdrew the March 2016 permanent custody motion.

{¶ 8} The court held the permanent custody hearing over several days in November 2016 and January 2017. In support of permanent custody, JFS introduced the testimony of Mother's JFS caseworker, who had been involved with the case since July 2014.

{¶ 9} The caseworker testified that Mother had problems with taking her prescription medication. The caseworker testified that she checked Mother's prescriptions on three occasions and found that Mother was out of medication sooner than called for by the prescriptions. Yet Mother tested negative for her medication in drug screens. Mother always provided the caseworker with excuses for the loss of medication, including claiming that family members were stealing her prescriptions. The agency referred Mother to a substance abuse agency that would assist Mother with taking her medication and perform pill counts.

{¶ 10} A counselor from the substance abuse agency testified that she began working with Mother in October 2015. The counselor provided Mother with scheduled in-home therapy sessions, which also involved pill counts. Mother's counselor stated that on several of these scheduled visits no one responded to the door. Mother offered various excuses as to her lack of response. When the counselor could complete pill counts, Mother's counts were sometimes substantially off. On one occasion, Mother was missing 40 Xanax pills only two days after receiving her prescription. The counselor also noted that Mother tested negative for her prescribed medication. Finally, the counselor said that Mother showed her a text message from a friend asking for Mother's medication.

{¶ 11} The JFS caseworker testified that Mother lived with relatives until April 2015, when she obtained an apartment. The caseworker visited Mother's apartment and found it unsanitary. The caseworker observed food left out in the kitchen, garbage on the floor, and a strong odor and dirty dishes on Mother's mattress. The caseworker never observed the apartment in an appropriate condition for a child. Mother's counselor similarly testified that Mother's apartment was "always dirty."

{¶ 12} The agency also had concerns about Mother's personal associations. Mother admitted to the caseworker that her cousin had overdosed in the apartment and that others she allowed in the home were stealing her medication. The caseworker confirmed that Mother filed a police report concerning missing pills. While the permanent custody hearing was pending, Mother was in the process of being evicted from her apartment for failure to pay late payment fees.

{¶ 13} The caseworker agreed that the agency's primary concern was Mother's mental health and that Mother had consistently utilized mental health services. However, Mother continued to exhibit disturbing behavior. Once, Mother contacted the agency and reported that B.T.H. severely injured herself in a bicycle accident, was hospitalized, and then disappeared from the hospital. In fact, B.T.H. was safe at school. Mother later contacted the agency and reported that she dreamed the incident.

{¶ 14} A specialist at a family visitation center testified that Mother regularly visited with B.T.H. The specialist observed a bond between Mother and B.T.H. However, Mother's visits were supervised at the highest level of scrutiny throughout the case. The agency deemed this level of supervision necessary because the specialist had to re-direct Mother from discussing inappropriate topics with B.T.H., such as the court case or B.T.H.'s foster placement. Mother would also interrupt B.T.H. so that Mother could discuss her own concerns. The specialist, not Mother, had to provide structure to the visits. The specialist observed Mother and B.T.H. play basketball and was concerned that Mother behaved aggressively towards her daughter while playing.

{¶ 15} The specialist also observed Mother acting oddly. Mother began telling visitation employees that she was pregnant. However, Mother's varying statements as to the stage of the pregnancy aroused suspicion. Mother later told facility employees that the pregnancy ended in miscarriage. During one visit, Mother also told B.T.H. that she had a "baby doll" and promised B.T.H. that she would bring it to a visit. However, Mother later told B.T.H. that the baby doll was too expensive, so she had to return it. Visitation employees had to cancel a visit after Mother's behavior indicated she was impaired.

{¶ 16} B.T.H.'s foster mother testified. The foster mother and her family lived near B.T.H. and Mother approximately six years earlier. At that time, B.T.H. was a frequent guest at their house. After B.T.H.'s removal, the foster mother saw B.T.H. at a school event and arranged to foster B.T.H. while the case proceeded. The foster mother said that B.T.H. had her own room and was bonded with her family. The foster mother was willing to adopt B.T.H. The caseworker testified that B.T.H. repeatedly indicated to the agency that she wanted to be adopted.

{¶ 17} Mother testified that her mental health was currently "like a rollercoaster. It's up and down." She was "a little bit" better than when the case began. Mother denied that she told visitation employees that she was pregnant. Mother also denied that her pill counts were inaccurate and blamed the counselor's miscalculation. Mother said that she was in the process of moving into a new one bedroom apartment where the conditions were better. Mother blamed the unsanitary conditions at the old apartment on the dilapidated state of the apartment itself, and said the landlord would not make repairs. Mother testified that she received around $700 per month in social security income and would receive more if she regained custody of B.T.H.

{¶ 18} A social worker with Mother's mental health agency testified that he had been assisting Mother with her daily needs, including transporting her once or twice a month to food pantries when she would prematurely use all of her food stamps. The social worker observed improvements in Mother's ability to cope with anxiety, by using techniques that she had learned from him and others. The social worker said he would not be concerned if Mother regained custody of B.T.H. The social worker observed Mother's new apartment and agreed that Mother was maintaining it better than the old apartment. In this respect, the agency stipulated that they had no concerns with the condition of Mother's new apartment.

{¶ 19} With respect to B.T.H.'s father, the JFS caseworker testified that the agency was able to locate him in November 2015. B.T.H.'s father had no contact with B.T.H. between her removal and when the agency located him. B.T.H.'s father then exercised a few visits but the agency terminated the visits because B.T.H.'s father would not communicate with the agency. The record reflects that the agency served B.T.H.'s father with notice of the permanent custody motion but he failed to participate.

{¶ 20} On the final hearing day, B.T.H.'s attorney filed a motion requesting liberalized parenting time between B.T.H. and Mother. Specifically, B.T.H. asked to spend unsupervised time with Mother at Mother's new apartment "to see whether she can live with her Mother." B.T.H. also asked the juvenile court to make no decision with respect to permanent custody until B.T.H. could determine if she wanted to live with Mother. Mother did not join in the motion or otherwise indicate her support for the motion. Finally, B.T.H. asked the court for an in-camera meeting with the magistrate hearing the case. The court denied B.T.H.'s motion with respect to liberalized parenting time but agreed to meet in camera with B.T.H. prior to issuing a decision.

{¶ 21} B.T.H.'s guardian ad litem ("GAL") filed a report recommending permanent custody be granted to the agency. The GAL also testified at the permanent custody hearing and was cross-examined on the report. The GAL testified that her recommendation would not change because B.T.H. had requested liberalized visits with Mother and Mother had improved the sanitary conditions of her living environment. Mother's more concerning mental health issues remained unresolved.

{¶ 22} In February 2017, a juvenile court magistrate issued a decision recommending that the court grant permanent custody to the agency. The magistrate concluded that B.T.H.'s father abandoned B.T.H. The magistrate further concluded that B.T.H. was in the agency's temporary custody for 12 or more months of a consecutive 22-month period and that placing B.T.H. in the permanent custody of the agency was in the child's best interest. The court adopted the magistrate's decision after overruling Mother's objections. Mother now appeals the decision, raising two assignments of error.

{¶ 23} Assignment of Error No. 1:

{¶ 24} THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN IT IMPROPERLY DENIED MINOR CHILD'S MOTION FOR A CONTINUANCE TO EXPLORE HER INTEREST IN RETURNING HOME WITH HER MOTHER.

{¶ 25} Mother argues that the juvenile court abused its discretion when it denied B.T.H.'s motion for liberalized parenting time without appropriately weighing the child's need for a continuance against the prejudice to others. The state argues that Mother lacks standing to appeal the denial of B.T.H.'s motion. Alternatively, the state contends that the juvenile court did not abuse its discretion in denying the motion. Mother did not file a reply brief responding to the state's arguments on standing.

{¶ 26} Standing is a "party's right to make a legal claim or seek judicial enforcement of a duty or right." Ohio Pyro, Inc. v. Ohio Dept. of Commerce , 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27, quoting Black's Law Dictionary (8th Ed.2004) 1442. Stated otherwise, only litigants with standing are entitled to have a court determine the merit of an issue presented. Moore v. City of Middletown , 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 20. Whether a party has standing is question of law that this court reviews de novo. Id.

{¶ 27} " '[T]he question of standing depends upon whether the party has alleged such a "personal stake in the outcome of the controversy," as to ensure that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." ' " (Citations omitted.) State ex rel. Dallman v. Franklin Cty. Court of Common Pleas , 35 Ohio St.2d 176, 178-179, 298 N.E.2d 515 (1973), quoting Sierra Club v. Morton , 405 U.S. 727, 732, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). "It is well-established that an appeal lies only on behalf of a party aggrieved by the final order appealed from." Williams v. McFarland Properties, L.L.C. , 177 Ohio App.3d 490, 2008-Ohio-3594, 895 N.E.2d 208, ¶ 29 (12th Dist.), citing Midwest Fireworks Mfg. Co., Inc. v. Deerfield Twp. Bd. of Zoning Appeals , 91 Ohio St.3d 174, 743 N.E.2d 894 (2001). The party seeking to appeal bears the burden of establishing standing. Id.

{¶ 28} Mother failed to join in or otherwise demonstrate support for B.T.H.'s motion for liberalized parenting time. This court concludes that Mother did not establish a personal stake in the outcome of B.T.H.'s motion and therefore lacks standing to appeal the juvenile court's partial denial of the motion. See, e.g. , In re T.W. , 1st Dist. Hamilton No. C-130080, 2013-Ohio-1754, 2013 WL 1820852 (dismissing a father's appeal for lack of standing, which raised arguments on behalf of a great-grandmother). In addition, Mother did not respond to the state's standing challenge and has failed to meet her burden on appeal. Williams at ¶ 29. However, this court's decision would not change if Mother demonstrated standing.

{¶ 29} As this court will discuss in greater detail in response to Mother's second assignment of error, the juvenile court did not abuse its discretion in denying B.T.H.'s motion because Mother had yet to resolve the mental health issues that caused B.T.H.'s removal. Moreover, Mother only had supervised visitation with B.T.H., at a visitation center, during the 31-month pendency of this case. A sudden transition to unsupervised, in-home parenting time would not have been in B.T.H.'s best interest.

{¶ 30} The court also did not abuse its discretion in denying B.T.H.'s request to delay a decision on the permanent custody motion. R.C. 2151.414(A)(2) provides that "[t]he court shall issue an order that grants, denies, or otherwise disposes of the motion for permanent custody, and journalize the order, not later than two hundred days after the agency files the motion." The agency filed its permanent custody motion on July 13, 2016. B.T.H. filed her motion on the final day of the custody hearing, i.e., January 25, 2017. Thus, 196 days elapsed since the filing of the permanent custody motion. Granting B.T.H.'s request would have significantly extended the juvenile court's resolution of the permanent custody motion beyond the statutory limit. Additional delay would also be contrary to the policy that juvenile custody issues be resolved expeditiously to allow the child to achieve permanence in a living arrangement. This court overrules Mother's first assignment of error.

{¶ 31} Assignment of Error No. 2:

{¶ 32} THE TRIAL COURT'S DECISION TO GRANT BUTLER COUNTY CHILDREN'S SERVICES PERMANENT CUSTODY IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

{¶ 33} Mother argues that the evidence does not clearly and convincingly support the conclusion that granting permanent custody to the agency was in B.T.H.'s best interest. Mother argues that the evidence showed a strong bond between Mother and B.T.H. and that Mother complied with the case plan's requirements to seek counseling for her mental health issues. While Mother concedes that the agency had some concerns, especially with respect to her prescription medication issues, she contends that these concerns did not outweigh Mother's progress in the case plan.

{¶ 34} Before a natural parent's constitutionally protected liberty interest in the care and custody of her child may be terminated, the state is required to prove by clear and convincing evidence that the statutory standards for permanent custody have been met. Santosky v. Kramer , 455 U.S. 745, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ; R.C. 2151.414(B)(1). An appellate court's review of a juvenile court's decision granting permanent custody is limited to whether sufficient credible evidence exists to support the juvenile court's determination. In re J.H. , 12th Dist. Clinton Nos. CA2015-07-014 and CA2015-07-015, 2016-Ohio-640, 2016 WL 698075, ¶ 21.

{¶ 35} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and award permanent custody to a children services agency if the court makes findings pursuant to a two-part test. First, the court must find that the grant of permanent custody to the agency is in the best interest of the child, utilizing, in part, the factors of R.C. 2151.414(D). Second, the court must find that any of the following apply: (1) the child is abandoned, (2) the child is orphaned, (3) the child has been in the temporary custody of the agency for at least 12 months of a consecutive 22-month period, (4) where the preceding three factors do not apply, the child cannot be placed with either parent within a reasonable time or should not be placed with either parent, or (5) the child or another child in the custody of the parent from whose custody the child has been removed, has been adjudicated an abused, neglected, or dependent child on three separate occasions. R.C. 2151.414(B)(1)(a)-(e). Only one of those findings must be met to satisfy the second prong of the permanent custody test. In re D.K.W. , 12th Dist. Clinton No. CA2014-02-001, 2014-Ohio-2896, 2014 WL 2987316, ¶ 22.

{¶ 36} In this case, the juvenile court found by clear and convincing evidence that B.T.H. had been in JFS' temporary custody for 12 or more months of a consecutive 22-month period. Mother does not dispute this finding. Rather, Mother disputes that granting permanent custody of B.T.H. to the agency was in B.T.H.'s best interest.

{¶ 37} R.C. 2151.414(D)(1), provides:

[T]he court shall consider all relevant factors, including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period * * *;
(d) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

{¶ 38} In granting JFS's motion for permanent custody, the juvenile court considered each of the best interest factors. With respect to the first statutory factor, the juvenile court found that B.T.H.'s father had little contact with her during the case and that B.T.H. was not bonded with her father. The court found that B.T.H. and Mother were bonded and that Mother had supervised visits with B.T.H. throughout the case. The court noted that B.T.H. consistently indicated her desire to be adopted until the last day of the permanent custody hearing. The court observed that B.T.H. was comfortable in her current home and was closely bonded to her foster family, who had expressed a willingness to adopt her.

{¶ 39} In consideration of the second statutory factor, the juvenile court indicated that B.T.H. expressed her wishes and concerns to the court in camera, which the court considered in rendering its decision. The court also noted that it considered the report and recommendation of the GAL, who recommended permanent custody be granted to the agency.

{¶ 40} With respect to the third statutory factor, the juvenile court reviewed the child's custodial history and found that the court placed B.T.H. in the agency's temporary custody beginning in May 2015 and B.T.H. remained in JFS's custody through the remainder of the case. The court also noted that the agency filed its permanent custody complaint on July 13, 2016, when B.T.H. had been in the agency's temporary custody for more than 12 months of a consecutive 22-month period.

{¶ 41} In considering the fourth statutory factor, the juvenile court found that B.T.H. needed a legally secure placement, which could not be achieved without a grant of permanent custody to the agency. In this regard, the juvenile court observed that B.T.H. had been out of her Mother's custody for 31 months while the case was pending. During that time, Mother had been referred for assistance for her issues with mental health and parenting. However, Mother failed to remedy the behaviors and concerns that caused B.T.H.'s removal. Finally, no relatives expressed any interest in taking custody of B.T.H.

{¶ 42} With respect to the fifth statutory factor, the juvenile court noted that B.T.H.'s father abandoned her.

{¶ 43} Based on these findings, the juvenile court found by clear and convincing evidence that it was in B.T.H.'s best interest to grant permanent custody to JFS. After a thorough review of the record, we find that the juvenile court's determination regarding the best interest of B.T.H. is supported by sufficient credible evidence.

{¶ 44} However, Mother argues that there was a lack of evidence submitted concerning how terminating her relationship with B.T.H. could affect B.T.H.'s well-being. Mother cites a case from the Ninth District Court of Appeals where the court reversed a grant of permanent custody. In re A.W. , 9th Dist. Lorain No. 09CA009631, 2010-Ohio-817, 2010 WL 761327. In A.W. , the court of appeals reversed after finding a "paucity" of evidence demonstrating that permanent custody was in the child's best interest. Id. at ¶ 12. The court observed that most evidence in the record weighed towards preserving the family relationship. Id. at ¶ 14. A.W. is distinguishable. Here there was substantial evidence in the record to support the conclusion that Mother's mental health problems, her issues with prescription medications, and her inability to maintain a sanitary home environment prevented Mother from providing B.T.H. with a safe and stable permanent living arrangement. Although it is conceivable and understandable that B.T.H. could suffer some detriment by terminating the parental relationship with Mother, the evidence clearly and convincingly established that permanent custody in favor of the agency was the most appropriate disposition.

{¶ 45} Specifically, no dispositional alternative, other than permanent custody was legally or practically viable. An order extending temporary custody pursuant to R.C. 2151.415(A)(6) was not an available dispositional alternative, as R.C. 2151.415(D)(4) prohibits an extension of temporary custody beyond two years after the filing of the July 2014 complaint. An order for a planned permanent living arrangement pursuant to R.C. 2151.415(A)(5) was not an available dispositional alternative, as B.T.H. was not yet sixteen years old as required by R.C. 2151.415(C)(1). An order placing B.T.H. in the legal custody of a relative or other interested individual was not an available dispositional alternative as no such person filed a motion requesting legal custody or was identified in the complaint or a motion as a proposed legal custodian as provided by R.C. 2151.353(A)(3). Finally, orders that B.T.H. be returned to the custody of a parent or placed into the protective supervision of a parent pursuant to R.C. 2151.415(A)(1) and (2), respectively, were practically unavailable. Mother failed to remedy the conditions necessitating B.T.H.'s removal from Mother's custody and father had no relationship with B.T.H. and had abandoned her.

{¶ 46} Mother also argues that this case is comparable to one where this court reversed a decision granting permanent custody to a family services agency. In re Knuckles , 12th Dist. Butler Nos. CA2003-01-004 and CA2003-01-005, 2003-Ohio-4418, 2003 WL 21991581. In Knuckles the lower court granted permanent custody largely because the parents failed to attend visits with their children and failed to complete case services. Id. at ¶ 21, 25. This court reversed, finding that the record revealed that the parents did not attend visits or complete case services because of transportation issues. Id. at ¶ 26. The record further reflected that the agency failed to assist the parents with their transportation needs. Id. at ¶ 27. The visits the parents could attend demonstrated that the family was well-bonded. Id. at ¶ 23. In sum, we found that the record did not clearly and convincingly demonstrate that the parents could not provide their children with a legally secure placement. Id. at ¶ 33. In this case, however, the record established that Mother failed over a lengthy period to resolve many of the issues that led to B.T.H.'s removal and there was no indication that JFS failed to provide any necessary assistance to Mother to help her resolve those issues.

{¶ 47} The record reflects a bond between Mother and B.T.H. The record further reflects that Mother began to make some improvements in maintaining a sanitary living space, but not until after the agency filed for permanent custody. However, there are compelling reasons to weigh the best interest factors in favor of permanent custody to JFS. The agency's involvement with Mother spanned the entirety of B.T.H.'s life and included some 15 cases. The agency's primary concern was Mother's mental health. In the years while B.T.H. was out of Mother's custody, Mother did not substantially improve her mental health issues. This is reflected in the fact that Mother and B.T.H.'s visits were always held at the highest level of supervision, largely because of Mother's inappropriate behavior. Mother conceded that her mental state was "like a rollercoaster." Mother failed to resolve the agency's concerns with her prescribed medications. Mother also exhibited poor decision-making with respect to the persons who she allowed in her residence. B.T.H. needs permanency and cannot and should not wait until Mother is able to resolve her mental health issues. Accordingly, this court overrules Mother's second assignment of error.

{¶ 48} Judgment affirmed.

HENDRICKSON, P.J., and PIPER, J., concur.