[Cite as In re T.T., 2019-Ohio-3002.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

                                                 :
 IN RE T.T.                                      :
                                                 :   Appellate Case No. 28326
                                                 :
                                                 :   Trial Court Case No. 2018-5011
                                                 :
                                                 :   (Appeal from Common Pleas Court –
                                                 :   Juvenile Division)
                                                 :
                                                 :

                                           ...........

                                           OPINION

                              Rendered on the 26th day of July, 2019.

                                           ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Appellant

JEFFREY D. LIVINGSTON, Atty. Reg. No. 0062466, 2312 Far Hills Avenue, #143,
Dayton, Ohio 45419
      Attorney for Appellee

                                         .............
                                                                                       -2-



DONOVAN, J.

      {¶ 1} The State appeals from the February 22, 2019 order of the juvenile court,

which granted T.T.’s motion to dismiss the State’s complaint for assault. For the reasons

that follow, we reverse the judgment of the trial court and remand the matter for further

proceedings.

      {¶ 2} The State’s complaint, which was filed in the Montgomery County Court of

Common Pleas, Juvenile Division on October 7, 2018, alleged that:

               * * * [T.T.], a child about the age of 16 years, * * * appears to be

      delinquent in that on or about 09-25-18, * * * [she] did knowingly cause or

      attempt to cause physical harm to [the victim] and the offense occurred in

      or on the grounds of a state correctional institution or an institution at the

      department of youth services, the victim of the offense was an employee of

      the department of rehabilitation and correction, the department of youth

      services, and the offense was committed by a person incarcerated in the

      state correctional institution, or by a person institutionalized in the

      department of youth services institution * * *.

The complaint specified that the offense charged was a felony of the third degree. The

circumstances under which the assault was allegedly committed enhanced the degree of

the offense.

      {¶ 3} At a hearing on October 31, 2018, T.T. denied responsibility for the assault,

which allegedly occurred at the Montgomery County Center for Adolescent Services

(“CAS”). On December 4, 2018, T.T. filed a motion to dismiss. She was charged with

knowingly causing or attempting to cause physical harm to the victim and further that the
                                                                                       -3-


offense occurred 1) in an institution of the Department of Youth Services (“DYS”), 2) the

victim was an employee of the DYS, and 3) the offense was committed by a person

institutionalized in the DYS institution pursuant to a commitment to the DYS, but T.T.

asserted that the victim was not an employee of the DYS and that the CAS was not an

institution of the DYS.

       {¶ 4} On January 25, 2019, the State responded to T.T.’s motion to dismiss. The

State noted that on August 31, 2017, T.T. had been committed to the DYS for secure

confinement until the age of 21, having been adjudicated delinquent in Lucas County for

murder. The State attached to its response the following documents: the Lucas County

judgment entry, an August 3, 2017 correspondence from the DYS Bureau Chief of

Community Facilities to the Director of CAS, stating that CAS’s “approved facility budget”

for fiscal year 2018 was $3,659,237, and a copy of the Ohio DYS Community Corrections

Facilities Grant/Renewal Application and Agreement between DYS and CAS for July

2017 through June 2018.

       {¶ 5} The State further asserted that T.T. and two other female DYS-incarcerated

juveniles assaulted a detention officer at CAS. According to the State, pursuant to the

agreement between CAS and DYS, female DYS-incarcerated juveniles were housed in a

“discrete separate unit from non-DYS juveniles committed to CAS,” and the $3,659,237

allocated to CAS for the 2018 fiscal year included costs associated with 15 beds available

for females at CAS. “At the time of the assault [T.T.] was in the custody of DYS and

housed in the DYS portion of the CAS facility.”

       {¶ 6} The State also asserted that Juv.R. 22(D) enumerates five separate

prehearing motions that “must be heard prior to the adjudicatory hearing,” and that T.T.’s
                                                                                            -4-


motion to dismiss did not fall within “any of the listed five prehearing motions.” According

to the State, T.T.’s motion was, instead, a request for the juvenile court to issue factual

findings before the State put on any evidence on the issues of whether the victim was or

was not an employee of DYS and whether CAS was or was not an institution of DYS.

The State argued that these questions were factual issues that should be determined by

the trier of fact at the adjudicatory hearing. The State also asserted that, because the

juvenile rules do not specifically deal with motions to dismiss or motions for acquittal, “the

analogous Crim.R. 29 should be used; “[u]nder Crim.R. 29 a motion for acquittal may not

be granted until the conclusion of the State’s case in chief,” and it would therefore be

improper for the juvenile court to sustain T.T.’s motion to dismiss prior to the hearing.

       {¶ 7} The State acknowledged that the victim in this case was not, in fact, an

employee of DYS, but it asserted that the victim was employed by CAS, and “it necessarily

follows [that] her position would not exist without the 15 beds DYS ha[d] contracted for at

a cost of $3,659,237 for fiscal year 2018.” The State argued that the agreement between

CAS and DYS imposed several requirements upon CAS as part of the grant allocation,

including making CAS staff available for regular interviewing, observation, and surveying

so that the DYS Central Office could assess the services provided on an ongoing basis.

According to the State, the victim’s “position [was] ostensibly created by and at least

partially subjected to some level of oversight by DYS.”

       {¶ 8} The State analogized assaults committed by DYS inmates on CAS

employees to assaults committed by inmates at private prisons.” The State argued that

“[p]rivate prison employees are not directly employed by the department of rehabilitation

and correction in the same manner that CAS employees are not directly employed by
                                                                                         -5-


DYS.    They instead work for an entity which contracts with the department of

rehabilitation and correction, or in the case of CAS with DYS, to house inmates.” The

State asserted that “private prisons themselves are pseudo state correctional facilities in

the same manner the units devoted to DYS inmates at CAS are a pseudo DYS facility.”

       {¶ 9} The State pointed out that the Ninth and Eleventh Districts have both

concluded that assaults by inmates on corrections officers at a privately-operated

correction institution are properly treated as assaults on corrections officers at a state

facility, citing State v. Godfrey, 9th Dist. Lorain No. 09CA009703, 2011-Ohio-512, ¶ 15,

and State v. Johnson, 11th Dist. Ashtabula No. 2001-A-0043, 2002-Ohio-6570, ¶ 20.

According to the State, “[t]his conclusion logically follows” because the defendants in

those cases were committed to the department of corrections and the private corrections

officers assaulted were doing the same job as a state corrections officer. Here, T.T. was

committed to DYS, which placed her at CAS, and the victim of the assault was employed

as a corrections officer at CAS in the same manner a corrections officer would be

employed in DYS’s main facility. The victim was also working at a DYS facility when she

was assaulted by a person committed to DYS. The State argued that the employment

status of the victim and the relationship between CAS and DYS were factual issues that

deserved to be resolved at an adjudicatory hearing, and that the motion to dismiss prior

to the hearing should be dismissed.

       {¶ 10} On February 7, 2019, T.T. filed a reply, pointing out that “even the State

agrees that the victim herein [was] not an employee of [DYS],” from which she concluded

that her offense could not be elevated to a felony of the third degree. T.T. also noted that

the terms of the agreement between DYS and CAS provided that CAS was contractually
                                                                                         -6-


forbidden from employing any employee of DYS and that ““it seems clear that [DYS] would

not consider [the victim] as one of its employees.” T.T. further argued that, pursuant to

the grant agreement, “the youths are at [CAS]. They are not institutionalized in a [DYS]

institution.”

        {¶ 11} T.T. argued that Johnson “does not stand for the proposition that assaults

by inmates on correction officers at * * * privately operated prisons are to be treated as

assaults on correction officers at a state prison.” T.T. further distinguished Godfrey as

“a case regarding the sufficiency of the evidence” where the court merely “found that there

was testimony from the victim that the offense was on the grounds of a state correctional

institution, that the victim was a corrections officer, and that the defendant was an inmate

of the correctional institution.” She stated:

                The State fails to point out that the legislature has acted in regards

        to private operation and management of initial intensive program prison.

        R.C. 9.06. The department of rehabilitation and correction may contract

        for private operation and management pursuant to this section of the initial

        intensive program prison established pursuant to section 5120.033 of the

        Revised Code. Section 5120.033 deals with those convicted of OVI. The

        Court in Godfrey in dicta did say that under R.C. 9.06(G), an offense that

        would be a crime at a state correctional institution shall be a crime if

        committed by an inmate at a facility operated under R.C. 9.06. Id. at ¶ 20.

        [CAS] is not an Intensive Program Prison (IPP). It is not a private operation

        under R.C. 9.06. It is wholly inapplicable to the case at hand.

        {¶ 12} T.T. concluded that CAS would be in violation of the grant agreement if the
                                                                                           -7-


victim-employee were an employee of DYS. “No need for a hearing exists. This alleged

assault cannot be a felony of third degree.”

       {¶ 13} On February 7, 2019, the State asked to supplement its response to T.T.’s

motion to dismiss, and it filed a supplemental response on February 11, 2019. The State

asserted that there was no dispute in this case that T.T. committed an assault on the

grounds of a correctional facility or that she was institutionalized in DYS at the time of the

offense.   “These two facts alone render (C)(4)(b) and (C)(4)(c) [of R.C. 2903.13]

irrelevant to this case and by default leave only (C)(3) or (C)(4)(a).” The State asserted

that each “elevating provision contains the same three elements: 1) where the offense

was committed 2) who the victim of the offense was and 3) who committed the offense.”

       {¶ 14} Regarding the first element, the State asserted that, because CAS contracts

with DYS for the institutional care and custody of felony delinquents, CAS is “by definition

a DYS institution,” and the first element was met for R.C. 2903.13(C)(3) (i.e., the offense

occurred on the grounds of an institution of the DYS). Conversely, the State asserted

that the first element of R.C. 2903.13(C)(4)(a) was not met; “(C)(4)(a) requires the offense

to occur on the grounds of a local correctional facility. The DYS portion of CAS is a DYS

institution and not a local correctional facility so the first requisite elements of (C)(4)(a)

cannot be met in this case.”

       {¶ 15} Regarding the second element, the State asserted that the victim was acting

as a DYS employee at the time of the assault, because she “worked within the DYS

portion of CAS at the time of the offense.” The State further asserted that the testimony

would show that but for multi-million dollar grant “and the subsequent existence of DYS

girls at CAS,” the victim’s job “would not have existed” and the victim “would not have
                                                                                         -8-


been in the DYS portion of CAS” on the date of the assault. The State argued that,

although the victim was employed by CAS, her position was subject to oversight from

DYS, and she was “for all intents and purposes working as an employee of [DYS] in a

DYS institution” at the time of the offense. As such, the State contended that the second

element of R.C. 2903.13(C)(3) could be satisfactorily proven in this case, i.e., T.T. was

institutionalized at a DYS institution.

       {¶ 16} Regarding the final element, the State asserted that the Lucas County court

that committed T.T. did not commit her to a local correction facility; it committed her to a

DYS institution. “CAS receives a significant financial incentive to comport with the rules

and regulations outlined in their grant agreement with DYS to operate a DYS institution

for the institutional care and custody of felony delinquents.” According to the State, the

DYS portion of CAS should be treated the same as any other DYS facility, citing R.C.

5139.01(A)(4).

       {¶ 17} The trial court sustained T.T.’s motion to dismiss prior to an adjudicatory

hearing. After quoting R.C. 9.06, the court reasoned:

              * * * [F]emale DYS youth are housed at CAS pursuant to a DYS

       “Grant Agreement for Community Corrections Facilities” pursuant to ORC

       5139.36. (Court’s Exhibit 1, attached. Note Section 9 which specifically

       details the services CAS will provide to DYS committed females housed at

       CAS.) ORC 5139.36(A) states that DYS “shall make grants that provide

       financial resources to operate community corrections facilities for felony

       delinquents.” Further, ORC 5139.36(E)(2)(b) directs that DYS “may, with

       the consent of the juvenile court with jurisdiction over the Montgomery
                                                                                        -9-


      County [CAS], establish a single unit within the community corrections

      facility for female felony delinquents committed to [DYS] custody. If the

      unit is established under this division, the department may place a female

      delinquent committed to [DYS] custody into the unit in the community

      corrections facility.” ORC 5139.01(14) defines a community corrections

      facility as “a county or multicounty rehabilitation center for felony

      delinquents who have been committed to [DYS] and diverted from care and

      custody in an institution and placed in the rehabilitation center pursuant to

      division (E) of section 5139.36 of the Revised Code. Finally, this Court

      notes that there is nothing in the DYS/Montgomery County Juvenile Court

      “Grant Agreement for Community Corrections Facilities” that indicates or

      even implies that CAS shall be designated as a private correctional facility

      subject to ORC 9.06.

             It is clear to this Court that pursuant to statute, CAS is a community

      corrections facility, not a privately operated corrections facility contracting

      with DYS under ORC 9.06. ORC 9.06 is inapplicable. As the State has

      conceded that [the victim] is not a DYS employee and this Court has found

      ORC 9.06 to be inapplicable, the State cannot prove that the victim of the

      offense * * * was an employee of DYS, which is an essential element of

      ORC 2903.13(C)(3). As this matter was resolved via statute and the briefs

      of the parties, the Court finds a hearing unnecessary.

The court dismissed the complaint without prejudice.

      {¶ 18} The State asserts one assignment of error on appeal:
                                                                                          -10-


              THE TRIAL COURT LACKED THE AUTHORITY TO GRANT T.T.’S

       MOTION TO DISMISS.

       {¶ 19} According to the State, the juvenile court’s order in the instant case must

be reversed, because a juvenile court has no authority to enter summary judgment to a

defendant during a juvenile delinquency case. The State asserts that the juvenile court

did not address its procedural arguments before granting T.T.’s motion on the merits, and

the Rules of Juvenile Procedure “provide no mechanism for the trial court to grant a

‘motion to dismiss’ under these circumstances.” The State asserts that the trial court

was required to determine, in ruling on the motion to dismiss, if the complaint against T.T.

described “an actual criminal offense under Ohio law,” and if the “complaint’s allegations

tracked the language of the relevant statute.” According to the State, “T.T. never alleged

in her motion to dismiss that the complaint failed to charge a criminal offense on its face.”

       {¶ 20} The State argues that, if a charging instrument is legally sufficient, the

question of whether the State is able to support the allegations with sufficient evidence

“must be left to a trial on the merits”; “if T.T. had been charged as an adult and filed the

same motion to dismiss she filed in the instant case, the trial court would have been

required to reject it.” The State argues that, while juvenile delinquency proceedings are

civil in nature, they “are governed by the Rules of Juvenile Procedure, not the Rules of

Civil Procedure.”

       {¶ 21} The State asserts that, pursuant to Juv.R. 22(D), “a motion to dismiss based

on ‘defects in the complaint’ must be filed before the adjudicatory hearing, but if the

‘defect’ is the failure of the complaint to ‘charge an offense,’ the motion may be filed at

any time during the proceedings.” The State asserts that Juv.R. 22 is “substantially
                                                                                          -11-


similar” to Crim.R. 12, and since “this Court has held that Crim.R. 12 does not allow a

‘motion to dismiss’ that challenges the sufficiency of the evidence the defendant

anticipates that State will use to support the charged offense, it follows that Juv.R. 22’s

nearly identical language also does not allow for the motion T.T. filed in the instant case.”

       {¶ 22} The State further directs our attention to Juv.R. 29, which “obligates the

juvenile court to set the case for an adjudicatory hearing after the filing of the complaint.

* * * The court must then ask the charged juvenile to enter an admission or denial of the

allegations stated in the complaint.” The State asserts that “if a juvenile enters a denial to

a delinquency complaint, the trial court must conduct an adjudicatory hearing, order the

presentation of evidence, and make an actual determination of the issues, i.e., whether

the State proved beyond a reasonable doubt the allegations charged in the complaint.”

The State argues that nothing in Juv.R. 29 allows for a trial court to determine that the

State will not be able to carry its burden of proof prior to any evidence actually being

presented.

       {¶ 23} Finally, the State asserts:

              When Juv.R. 22 and Juv.R. 29 are read in pari materia, the following

       principles emerge: (1) a juvenile may not challenge the sufficiency of the

       evidence used to support the offense charged against her in a prehearing

       motion, because that issue cannot be resolved “without hearing on the

       allegations of the complaint;” (2) if the juvenile does not admit to the

       charges, the trial court is obligated to conduct an adjudicatory hearing, if the

       juvenile’s only challenge is the legal sufficiency of the State’s evidence; (3)

       the court is only authorized to dismiss the complaint for insufficient evidence
                                                                                        -12-


       after it has conducted the adjudicatory hearing and found that the State has

       not carried its burden of proof.

              In the instant case, the complaint filed against T.T. alleged a

       cognizable criminal offense under Ohio law. T.T.’s motion to dismiss did

       not claim that the complaint failed to charge an offense, but instead only

       alleged that the State could not prove two essential elements of the offense.

       In this situation, the trial court was obliged to set the matter for an

       adjudicatory hearing and hear evidence before evaluating T.T.’s

       insufficiency argument. Instead, the court granted T.T.’s motion to dismiss

       without ever hearing any testimony. Since the court was not authorized by

       any rule or statute to proceed in this way, this Court must reverse the

       juvenile court’s decision.

       {¶ 24} T.T. responds that the juvenile court correctly found that no hearing was

necessary, given that the State conceded that it could not prove an essential element

beyond a reasonable doubt. According to T.T., “the State conceded twice that it could

not prove beyond a reasonable doubt that the victim was an employee of [DYS],” which

is an essential element of R.C. 2903.13(C)(3). T.T. asserts that having “a hearing on

whether the victim is an employee of [DYS] after you have conceded that fact, twice, is a

waste of judicial time, resources, and economy. Due process is not offended and de

novo review is appropriate.” T.T. cites Juv.R. 1(B)(2) and asserts that the “juvenile rules

are to be liberally interpreted and construed to secure simplicity and uniformity in

procedure, fairness in administration, and the elimination of unjustifiable expense and

delay.”
                                                                                          -13-


       {¶ 25} In reply, the State asserts that it “is disingenuous to suggest that the State

conceded that it could not prove that the victim was an ‘employee’ of DYS”; although it

acknowledged that the victim was employed by CAS, the State “went on to represent that

the evidence would show that the contractual relationship between CAS and DYS, and

the nature of the victim’s position within CAS, meant that the victim met the statutory

requirement of being ‘an employee’ of DYS.” The State asserts that it “made this explicit

in its supplemental response, in which it argued that the victim ‘was acting as a DYS

employee’ on the date of the incident. * * * Given all of this, the State never conceded its

case away below.”

       {¶ 26} According to the State, T.T. fails to provide a persuasive argument in her

brief as to how the trial court had the authority, under any rule or statute, to reach the

merits of her motion, whatever they may have been. The State asserts that T.T. merely

“cites Juv.R. 1 for the proposition that the Juvenile Rules ‘are to be liberally construed.’ ”

The State asserts that T.T. ignores Juv.R. 29 and that “Juv.R. 1 cannot effectively nullify

the specific requirements contained in Juv.R. 22 and Juv.R. 29.”

       {¶ 27} We begin our analysis by addressing the State’s assertion that, under the

Rules of Juvenile Procedure, the juvenile court did not have the authority to dismiss the

complaint.

       {¶ 28} Juv.R. 29(A) provides: “The date for the adjudicatory hearing shall be set

when the complaint is filed or as soon thereafter as practicable. * * *.”             At the

commencement of the hearing, Juv.R. 29(B) requires the juvenile court in part to “request

each party against whom allegations are being made in the complaint to admit or deny

the allegations.” Juv.R. 29(E) provides:
                                                                               -14-


       (E) Initial Procedure Upon Entry of a Denial. If a party denies the

allegations the court shall:

       (1) Direct the prosecuting attorney or another attorney-at-law to

assist the court by presenting evidence in support of the allegations of a

complaint;

       (2) Order the separation of witnesses, upon request of any party;

       (3) Take all testimony under oath or affirmation in either question-

answer or narrative form; and

       (4) Determine the issues by proof beyond a reasonable doubt in

juvenile traffic offense, delinquency, and unruly proceedings; by clear and

convincing evidence in dependency, neglect, and abuse cases, and in a

removal action; and by a preponderance of the evidence in all other cases.

{¶ 29} Juv.R. 22 provides, in part:

       (D) Prehearing Motions. Any defense, objection or request which

is capable of determination without hearing on the allegations of the

complaint may be raised before the adjudicatory hearing by motion. The

following must be heard before the adjudicatory hearing, though not

necessarily on a separate date.

       (1) Defenses or objections based on defects in the institution of the

proceeding;

       (2) Defenses or objections based on defects in the complaint (other

than failure to show jurisdiction in the court or to charge an offense which

objections shall be noticed by the court at any time during the pendency of
                                                                                         -15-


       the proceeding);

              (3) Motions to suppress evidence on the ground that it was illegally

       obtained;

              (4) Motions for discovery;

              (5) Motions to determine whether the child is eligible to receive a

       sentence as a serious youthful offender.

       {¶ 30} Juv.R. 22(D) parallels Crim. R. 12(C) (“Prior to trial, any party may raise by

motion any defense, objection, evidentiary issue, or request that is capable of

determination without the trial of the general issue.”). While juvenile court proceedings

are civil, rather than criminal, in nature, the Ohio Supreme Court has noted that “there are

criminal aspects to juvenile court proceedings.” In re Anderson, 92 Ohio St.3d 63, 65-

66, 748 N.E.2d 67 (2001).

       {¶ 31} As this Court has previously noted in the context of the criminal rules:

              “A motion to dismiss an indictment tests the legal sufficiency of the

       indictment, regardless of the quality or quantity of the evidence that may be

       introduced by either the state or the defendant.” State ex rel. Steffen v.

       Court of Appeals, First Appellate Dist.,126 Ohio St.3d 405, 2010-Ohio-

       2430, 934 N.E.2d 906, ¶ 34. Accordingly, in ruling on a motion to dismiss

       an indictment, the trial court may not examine the sufficiency of the state's

       evidence. State v. Miller (Dec. 4, 1998), Montgomery App. No. 17273, 1998

       WL 833796. Rather, the court must look to the indictment to determine

       only whether the charges as set forth describe an offense under the law of

       the state. Id. “Crim.R. 12 permits a court to consider evidence beyond the
                                                                                          -16-


          face of an indictment when ruling on a pretrial motion to dismiss an

          indictment if the matter is capable of determination without trial of the

          general issue.” State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894

          N.E.2d 671, ¶ 3. However, whether sufficient evidence exists to convict on

          an indictment—that is, to persuade the finder of fact of all of the essential

          elements of the offense beyond reasonable doubt—is a matter that must be

          determined through a trial on charges alleged in the indictment; there is no

          pretrial mechanism for this purpose. State v. Netzley, Darke App. No. 07-

          CA-1723, 2008-Ohio-3009, ¶ 7.

State v. Pointer, 193 Ohio App.3d 674, 2011-Ohio-1419, 953, 953 N.E.2d 853, ¶16 (2d

Dist.).

          {¶ 32} In Brady, cited above, the Supreme Court of Ohio examined pretrial motions

to dismiss in State v. O’Neal, 114 Ohio App.3d 335, 336, 683 N.E.2d 105 (1996), and

State v. Varner, 81 Ohio App.3d 85, 610 N.E.2d 476 (9th Dist.1991), as follows:

                 In O’Neal, the trial court granted the defendant's pretrial motion to

          dismiss an indictment for possession of cocaine in violation of R.C.

          2925.11(A) on the ground that the small amount of cocaine found on his

          person was insufficient as a matter of law to sustain the “knowingly” element

          of the possession charge. O’Neal, 114 Ohio App.3d at 336, 683 N.E.2d 105.

          In reviewing the judgment, the appellate court stated: “ ‘The proper

          determination [for the trial court to make in reviewing the motion to dismiss

          the indictment] was whether the allegations contained in the indictment

          made out offenses under Ohio criminal law. If they did, it was premature
                                                                                          -17-


       to determine, in advance of trial, whether the state could satisfy its burden

       of proof with respect to those charges.’ ” Id., quoting [State v.] Patterson, 63

       Ohio App.3d at 95, 577 N.E.2d 1165. Because O'Neal's motion required

       consideration of the general issue at trial—whether O'Neal knowingly

       possessed the small amount of cocaine found on his person—the

       Montgomery County Court of Appeals determined that the pretrial dismissal

       of the indictment was improper.

              Similarly, in Varner, the Summit County Court of Appeals considered

       the dismissal of an indictment for failure to appear in violation of a

       recognizance bond. The motion to dismiss required the trial court to

       examine Varner's bond to determine whether it was a recognizance bond.

       The appellate court reversed the order granting dismissal, holding that “[t]he

       Ohio Rules of Criminal Procedure, * * * do not allow for ‘summary judgment’

       on an indictment prior to trial.” Varner, 81 Ohio App.3d at 86-87, 610

       N.E.2d 476.

Brady at ¶ 16-17.

       {¶ 33} As the State asserts, T.T.’s complaint tracked the language of R.C.

2903.13(C)(3)1 and made out an offense. The juvenile court determined that the State

could not meet its burden of proof. We agree with the State that, since a motion to


1
  “If the offense occurs in or on the grounds of a state correctional institution or an
institution of the department of youth services, the victim of the offense is an employee of
the department of rehabilitation and correction or the department of youth services, and
the offense is committed by a person incarcerated in the state correctional institution or
by a person institutionalized in the department of youth services institution pursuant to a
commitment to the department of youth services, assault is a felony of the third degree.”
R.C. 2903.13(C)(3).
                                                                                         -18-


dismiss is not permitted to challenge the sufficiency of the evidence in the criminal

context, “it follows that Juv.R. 22’s nearly identical language also does not allow for the

motion T.T. filed in the instant case.”

       {¶ 34} Accordingly, the State’s sole assignment of error is sustained.          The

judgment of the trial court is reversed, and the matter is remanded for further proceedings.



                                      .............



WELBAUM, P.J. and FROELICH, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Jeffrey D. Livingston
Sarah Siemann, GAL
Hon. Anthony Capizzi
