[Cite as In re S.J., 2013-Ohio-662.]


                                           COURT OF APPEALS
                                        RICHLAND COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT

IN RE: S.J.,                                          JUDGES:
                                                      Hon. Patricia A. Delaney, P.J.
A MINOR CHILD                                         Hon. William B. Hoffman, J.
                                                      Hon. Sheila G. Farmer, J.

                                                      Case No. 12CA73


                                                      OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Richland County Court of
                                                  Common Pleas, Juvenile Division, Case
                                                  No. 2012-DEL-33


JUDGMENT:                                         Affirmed


DATE OF JUDGMENT ENTRY:                            February 21, 2013


APPEARANCES:


For Appellee                                      For Appellant


TERRY D. HITCHMAN                                 JAMES J. MAYER, JR.
3 N. Main Street, Suite 706                       PROSECUTING ATTORNEY
Mansfield, Ohio 44902                             RICHLAND COUNTY, OHIO

                                                  BY: JILL M. COCHRAN
                                                  Assistant Richland County Prosecutor
                                                  38 South Park Street, 2nd Floor
                                                  Mansfield, Ohio 44902
Richland County, Case No. 12CA73                                                        2

Hoffman, J.


       {¶1}   Plaintiff-appellant the state of Ohio appeals the judgment entered by the

Richland County Court of Common Pleas vacating a prior adjudication of delinquency

and ordering the juvenile into a court diversion program. S.J., a minor child, is the

appellee.

                           STATEMENT OF THE FACTS AND CASE.

       {¶2}   On January 17, 2012, Appellee, S.J., a minor child, was charged by the

state of Ohio with one count of rape, in violation of R.C. 2907.02(A)(1)(b) and R.C.

2152.02(F)(1), a felony of the first degree if committed by an adult. It was alleged that

on January 14, 2012, S.J, age thirteen at the time of the offense, did engage in sexual

conduct with B.M., S.J.’s four year old half sister.

       {¶3}   The case came on for trial on June 20, 2012. Appellant’s mother testified

she was an eyewitness to the event.          A Sexual Assault Nurse Examiner (SANE)

testified B.M. had both external and internal bruising in her vaginal area.

       {¶4}   The trial court found the evidence insufficient on the issue of penetration.

The trial court held Appellant committed sexual battery, in violation of R.C.

2907.03(A)(2). The court found S.J. attempted to engage in sexual conduct with B.M.

knowing her ability to appraise the nature of or control the other person’s own conduct

was substantially impaired because of her young age.             The trial court reserved

jurisdiction to vacate the adjudication at any time.

       {¶5}   The dispositional hearing was held on August 6, 2012. At the hearing, the

trial court vacated its adjudication of delinquency and placed S.J. in the Court Diversion
Richland County, Case No. 12CA73                                                        3


Program until age 21. The state of Ohio objected to the disposition, and now appeals,

assigning as error:

       {¶6}   “I. THE TRIAL COURT’S FINDING THAT APPELLEE WAS DELINQUENT

FOR ATTEMPTED SEXUAL BATTERY RATHER THAN RAPE OR ATTEMPTED

RAPE WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND NOT BASED

ON THE FACTS FOUND BY THE TRIAL COURT IN THE RECORD.

       {¶7}   “II. THE TRIAL COURT ABUSED ITS DISCRETION IN VACATING THE

FINDING THAT THE APPELLEE WAS A DELINQUENT CHILD AND PLACING THE

APPELLEE IN THE DIVERSION PROGRAM.”

                                                   I. & II.

       {¶8}   Prior to addressing the argument raised by Appellant, we must first

address the jurisdictional issue before this Court. The State appeals the trial court's

August 8, 2012 Judgment Entry vacating the finding of delinquency and placing the

juvenile in a diversion program in lieu of disposition.

       {¶9}   Ohio Rule of Juvenile Procedure 29(F) states,

       {¶10} "(F) Procedure upon determination of the issues

       {¶11} "Upon the determination of the issues, the court shall do one of the

following:

       {¶12} "(1) If the allegations of the complaint, indictment, or information were not

proven, dismiss the complaint;

       {¶13} "(2) If the allegations of the complaint, indictment, or information are

admitted or proven, do any one of the following, unless precluded by statute:

       {¶14} "(a) Enter an adjudication and proceed forthwith to disposition;
Richland County, Case No. 12CA73                                                           4


       {¶15} "(b) Enter an adjudication and continue the matter for disposition for not

more than six months and may make appropriate temporary orders;

       {¶16} "(c) Postpone entry of adjudication for not more than six months;

       {¶17} "(d) Dismiss the complaint if dismissal is in the best interest of the child

and the community.

       {¶18} "(3) Upon request make written findings of fact and conclusions of law

pursuant to Civ. R. 52.

       {¶19} "(4) Ascertain whether the child should remain or be placed in shelter care

until the dispositional hearing in an abuse, neglect, or dependency proceeding. In

making a shelter care determination, the court shall make written finding of facts with

respect to reasonable efforts in accordance with the provisions in Juv. R. 27(B)(1) and

to relative placement in accordance with Juv. R. 7(F)(3)."

       {¶20} Ohio Criminal Rule 12 provides, in pertinent part,

       {¶21} "(F) Ruling on motion

       {¶22} "The court may adjudicate a motion based upon briefs, affidavits, the

proffer of testimony and exhibits, a hearing, or other appropriate means.

       {¶23} "A motion made pursuant to divisions (C)(1) to (C)(5) of this rule shall be

determined before trial. Any other motion made pursuant to division (C) of this rule shall

be determined before trial whenever possible. Where the court defers ruling on any

motion made by the prosecuting attorney before trial and makes a ruling adverse to the

prosecuting attorney after the commencement of trial, and the ruling is appealed

pursuant to law with the certification required by division (K) of this rule, the court shall

stay the proceedings without discharging the jury or dismissing the charges.
Richland County, Case No. 12CA73                                                          5


       {¶24} "Where factual issues are involved in determining a motion, the court shall

state its essential findings on the record.***

       {¶25} "***

       {¶26} "(K) When the state takes an appeal as provided by law from an order

suppressing or excluding evidence, or from an order directing pretrial disclosure of

evidence, the prosecuting attorney shall certify that both of the following apply:

       {¶27} "(1) the appeal is not taken for the purpose of delay;

       {¶28} "(2) the ruling on the motion or motions has rendered the state's proof with

respect to the pending charge so weak in its entirety that any reasonable possibility of

effective prosecution has been destroyed, or the pretrial disclosure of evidence ordered

by the court will have one of the effects enumerated in Crim. R. 16(D).

       {¶29} "The appeal from an order suppressing or excluding evidence shall not be

allowed unless the notice of appeal and the certification by the prosecuting attorney are

filed with the clerk of the trial court within seven days after the date of the entry of the

judgment or order granting the motion. Any appeal taken under this rule shall be

prosecuted diligently.

       {¶30} "If the defendant previously has not been released, the defendant shall,

except in capital cases, be released from custody on the defendant's own recognizance

pending appeal when the prosecuting attorney files the notice of appeal and

certification.

       {¶31} "This appeal shall take precedence over all other appeals.

       {¶32} "If an appeal from an order suppressing or excluding evidence pursuant to

this division results in an affirmance of the trial court, the state shall be barred from
Richland County, Case No. 12CA73                                                          6


prosecuting the defendant for the same offense or offenses except upon a showing of

newly discovered evidence that the state could not, with reasonable diligence, have

discovered before filing of the notice of appeal."

       {¶33} Appellate Rule 5 states,

       {¶34} "(C) Motion by prosecution for leave to appeal

       {¶35} "When leave is sought by the prosecution from the court of appeals to

appeal a judgment or order of the trial court, a motion for leave to appeal shall be filed

with the court of appeals within thirty days from the entry of the judgment and order

sought to be appealed and shall set forth the errors that the movant claims occurred in

the proceedings of the trial court. The motion shall be accompanied by affidavits, or by

the parts of the record upon which the movant relies, to show the probability that the

errors claimed did in fact occur, and by a brief or memorandum of law in support of the

movant's claims. Concurrently with the filing of the motion, the movant shall file with the

clerk of the trial court a notice of appeal in the form prescribed by App. R. 3 and file a

copy of the notice of appeal in the court of appeals. The movant also shall furnish a

copy of the motion and a copy of the notice of appeal to the clerk of the court of appeals

who shall serve the notice of appeal and a copy of the motion for leave to appeal upon

the attorney for the defendant who, within thirty days from the filing of the motion, may

file affidavits, parts of the record, and brief or memorandum of law to refute the claims of

the movant."

       {¶36} Upon review of the record herein, the State did not file leave to appeal in

this matter. The State does not cite authority granting the State the right to appeal the

trial court's vacation of the finding of delinquency herein and the resultant direction to
Richland County, Case No. 12CA73                                                         7


the diversionary program. The trial court’s decision to find Appellee not guilty of rape or

attempted rape after conducting the trial is not appealable, as a matter of right, by the

State. Further, standing to challenge the decision of the trial court ordering Appellee

into the court diversion program lies with Appellee, the juvenile, not the State.

       {¶37} Both of Appellant’s assignments of error are overruled.

       {¶38} The judgment of the Richland County Court of Common Pleas, Juvenile

Division, is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur

                                              s/William B. Hoffman__________________
                                              HON. WILLIAM B. HOFFMAN


                                              s/ Patricia A. Delaney _________________
                                              HON. PATRICIA A. DELANEY


                                              s/ Sheila G. Farmer __________________
                                              HON. SHEILA G. FARMER
Richland County, Case No. 12CA73                                                 8


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


IN RE: S.J.,                             :
                                         :
A MINOR CHILD                            :
                                         :
                                         :
                                         :
                                         :        JUDGMENT ENTRY
                                         :
                                         :
                                         :        Case No. 12CA73


      For the reasons stated in our accompanying Opinion, the judgment of the trial

court is affirmed. Costs to Appellant.




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ Patricia A. Delaney _________________
                                         HON. PATRICIA A. DELANEY


                                         s/ Sheila G. Farmer __________________
                                         HON. SHEILA G. FARMER
