[Cite as In re Willcox, 2011-Ohio-3896.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY



IN THE MATTER OF:                                         CASE NO. 5-11-08

LEVI M. WILLCOX,
                                                           OPINION
ALLEGED DELINQUENT CHILD.



                Appeal from Hancock County Common Pleas Court
                                Juvenile Division
                            Trial Court No. 21020420

                                      Judgment Affirmed

                             Date of Decision: August 8, 2011




APPEARANCES:

        Nathan T. Oswald for Appellant

        Benjamin E. Hal, for Appellee
Case No. 5-11-08



WILLAMOWSKI, J.

         {¶1} Defendant-Appellant, Levi M. Willcox (“Levi”), appeals the judgment

of the Hancock County Court of Common Pleas, Juvenile Division, adjudicating

him a delinquent child for inducing panic in a school by pulling a fire alarm at

Findlay High School. On appeal, Levi contends that the trial court’s determination

was against the sufficiency and manifest weight of the evidence, and that he was

denied effective assistance of counsel at the adjudicatory hearing. For the reasons

set forth below, the judgment is affirmed.

         {¶2} On November 9, 2010, a complaint was filed alleging that Levi, then

seventeen years old, was a delinquent child based upon one count of inducing

panic in a school in violation of R.C. 2917.31(A)(1), a felony of the second degree

if committed by an adult. The offense was filed as a delinquency count pursuant

to R.C. 2152.02(F). The matter proceeded to trial on January 11, 2011. The trial

court heard testimony from the following four witnesses testifying on behalf of the

State.

         {¶3} Greg Williamson, Assistant Principal at Findlay High School, testified

that on October 29, 2010, the fire alarm at the high school was pulled. There was

no fire and the false alarm necessitated the evacuation of 1,600 students and

faculty. In addition to this disruption, the fire department and police department

had to be dispatched to the school.


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        {¶4} Officer Tonya Miller, of the Findlay Police Department, testified that

she was dispatched to the school as a result of the false alarm and spoke with

several of the students, including Jere Crawford (“Jere”). Officer Miller testified

that Jere advised her that that Levi had told a group of students that he had pulled

the fire alarm. (Tr. p. 39.) She also spoke with Levi, the primary suspect, but he

denied pulling the alarm and claimed that it was the “other boy” in the locker

room.

        {¶5} Joseph Box (“Joey”) was a student who was changing in the locker

room for seventh period gym class when he overheard Levi talking with two other

students about how funny it would be to pull the fire alarm. Joey testified that he

then saw Levi run in and pull the fire alarm, and then run back out. (Tr. p. 26.)

After everyone left the building, Joey saw Levi talking to Jere and heard him

commenting that “he needed to give the I.S.A. (in-school suspension assignment)

students a break from being in the classroom all day long.” (Tr. p. 28.)

        {¶6} Jere testified that he was a friend of Levi’s and he was in I.S.A. the

day the fire alarm was pulled. Jere also testified that Levi had made a comment

that implied that Levi had pulled the fire alarm, but Jere denied that Levi had

specifically stated that he had done it.

        {¶7} After hearing the evidence, the juvenile court adjudicated Levi a

delinquent child. A dispositional hearing was held on February 10, 2011, and Levi


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was permanently committed to the Ohio Department of Youth Services, with the

commitment suspended on a day-to-day basis on the condition that Levi

successfully completes a treatment program at the Juvenile Residential Center of

Northwest Ohio. It is from this decision that Levi appeals, raising the following

two assignments of error.

                               First Assignment of Error

      The trial court erred by finding [Levi] delinquent of inducing
      panic because its determination was against the sufficiency and
      manifest weight of the evidence.

                             Second Assignment of Error

      This matter should be remanded back to the trial court due to
      [Levi’s] ineffective assistance of counsel at the adjudicatory
      hearing.

      {¶8} In his first assignment of error, Levi contends the trial court’s decision

was based solely on circumstantial, ambiguous evidence and that no rational trier

of fact could have found beyond a reasonable doubt that Levi committed the

offense. And, after weighing all reasonable inferences from the evidence and

considering the witnesses’ credibility, he contends that the trial court’s

adjudication was against the manifest weight of the evidence.

      {¶9} Pursuant to Juvenile Rule 29(E)(4) and R.C. 2151.35(A), a trial court

may find a juvenile delinquent when the evidence demonstrates beyond a

reasonable doubt that the child committed an act which would have constituted a


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crime if committed by an adult. Therefore, the State was required to prove that

Levi violated R.C. 2917.31, which provides in pertinent part that:

       (A) No person shall cause the evacuation of any public place,
       or otherwise cause serious public inconvenience or alarm, by
       doing any of the following:

       (1)  Initiating or circulating a report or warning of an alleged
       or impending fire, explosion, crime, or other catastrophe,
       knowing that such report or warning is false;

R.C. 2917.31(A)(1). If the public place involved is a school or an institution of

higher education, inducing panic is a felony of the second degree.               R.C.

2917.31(A)(5).

       {¶10} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence

submitted at trial, if believed, could reasonably support a finding of guilt beyond a

reasonable doubt. See State v. Thompkins, 78 Ohio St.3d 380, 386, 1997–Ohio–

52, 678 N.E.2d 541, 546 (stating, “sufficiency is the test of adequacy”); State v.

Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, 503. The standard of

review is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found all the essential elements of

the offense beyond a reasonable doubt. Jenks, supra; Jackson v. Virginia (1979),

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. This test raises a question of law




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and does not allow the court to weigh the evidence. State v. Martin (1983), 20

Ohio App.3d 172, 175, 485 N.E.2d 717.

       {¶11} Levi does not dispute the facts establishing that there was a false fire

alarm causing the evacuation of the school, but asserts that he did not do it. He

claims that the trial court’s decision was based “solely on circumstantial conflicted

evidence.”   (Appellant’s Br., p. 10.)    However, the record reflects that Joey

unambiguously testified that he saw Levi pull the fire alarm and he was certain

that it was Levi who did it.

       Q.     What did you observe that day, Joey? What happened?

       ***

       A.    I was changing my pants and him and two other students
       were discussing like how funny it would be to pull a fire alarm
       and as I was putting on my pants he ran in and pulled the fire
       alarm and ran back out.

       ***

       Q.   You’re positive it was Levi here who pulled the fire
       alarm?

       A.     Yes, sir.

       ***

       Q.     You saw [Levi] pull the fire alarm?

       A.     Yes, sir.

       Q.    And you heard [Levi] tell another individual that he had
       pulled the fire alarm?

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Case No. 5-11-08



       A.     Yes, sir.

(Tr. pp. 26-28.)

       {¶12} Further questioning established that Joey did not have any grudges

against Levi or any reason to lie about what Levi had done. After viewing the

evidence in a light most favorable to the prosecution, there was clearly sufficient

evidence to establish all of the essential elements of the offense.

       {¶13} Next, Levi argues that the decision was against the manifest weight

of the evidence because the trial court found that the testimony of Jere was “a little

bit ambiguous.” (Tr. p. 49.) He also contends that the evidence was contradictory

because Officer Miller testified that Jere had said that Levi had told him that “he

pulled the fire alarm for the I.S.A. kids,” whereas Jere denied that he had

unequivocally made that statement. Levi also tries to suggest that Joey was the

one who pulled the fire alarm.

       {¶14} A challenge to a conviction based on the manifest weight of the

evidence concerns “the inclination of the greater amount of credible evidence,

offered in a trial to support one side of the issue rather than the other. It indicates

clearly to the jury that the party having the burden of proof will be entitled to their

verdict, if, on weighing the evidence in their minds, they shall find the greater

amount of credible evidence sustains the issue which is to be established before

them. Weight is not a question of mathematics, but depends on its effect in


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inducing belief.” (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d at 387, 678

N.E.2d 541. A new trial should be granted only in the exceptional case in which

the evidence weighs heavily against conviction. Id. Although the appellate court

acts as a “thirteenth juror” in reviewing all of the evidence, it still must give due

deference to the findings made by the fact-finder. State v. Thompson (1998), 127

Ohio App.3d 511, 529, 713 N.E.2d 456.

       The fact-finder, being the jury, occupies a superior position in
       determining credibility. The fact-finder can hear and see as well
       as observe the body language, evaluate voice inflections, observe
       hand gestures, perceive the interplay between the witness and
       the examiner, and watch the witness' reaction to exhibits and the
       like. Determining credibility from a sterile transcript is a
       Herculean endeavor. A reviewing court must, therefore, accord
       due deference to the credibility determinations made by the fact-
       finder.

Id.

       {¶15} First, we find that there was no evidence at trial to support Levi’s

implication that Joey pulled the fire alarm, nor was there any evidence that Joey

had any motive to do so. Based upon the evidence presented and weighing the

witnesses’ credibility, the trial court determined that it did not find that Joey had

“anything to gain or lose one way or the other” when he testified that he actually

saw Levi pull the lever. (Tr. p. 49.)

       {¶16} Athough Jere’s testimony about Levi’s comments was somewhat

allusive, the trial court determined that his testimony “could have been interpreted


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as Levi’s bragging to him [about the] fact that he had gotten him out of an in-

school suspension. (Id.)

      Q.     What did Levi tell you?

      A.    Levi said someone needed to pull the alarm for the I.S.A.
      kids.

      ***

      Q.     And did he tell you he did it?

      A.    I didn’t hear him say anything about him doing it. He just
      made it seem like it was him.

      ***

      Q.    Did you tell an officer that Levi Willcox told you that he
      pulled the fire alarm?

      A.     No. I didn’t.

      Q.     You did not? So if an officer said that, that officer would
      be lying?

      A.     Yes. I specifically said he made it seem like he did.

(Emphasis added.) (Tr. pp. 35-36.)

      {¶17} Even if we were to assume, arguendo, that Levi did not specifically

tell Jere that he had pulled the fire alarm, Levi’s actions and words strongly

implied that he was the person who had done it. That inference, coupled with the

undisputed testimony of Joey, an independent eye-witness, that he had seen Levi

pull the alarm, does not support Levi’s assertion that the decision was against the


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manifest weight of the evidence. We cannot say that the fact-finder lost its way or

that the evidence weighed heavily against conviction.

       {¶18} Based on the above, the evidence was sufficient to prove the

essential elements of the offense beyond a reasonable doubt and the trial court’s

decision was not against the manifest weight of the evidence.           Levi’s first

assignment of error is overruled.

       {¶19} In the second assignment of error, Levi asserts that his attorney’s

conduct at the adjudicatory hearing fell below the objective standard of

reasonableness when he failed to effectively cross-examine the State’s key

witness, Joey, the only other person in the locker room with Levi at the time the

alarm was pulled.      Levi contends that his trial counsel should have posed

additional questions to Joey in order to cast doubt on Joey’s identification of Levi

as the perpetrator of the false alarm.

       {¶20} To establish ineffective assistance of counsel, a defendant must show

(1) deficient performance by counsel, that is, performance falling below an

objective standard of reasonable representation; and (2) prejudice, meaning that

there is a reasonable probability that but for counsel's errors, the proceeding's

result would have been different. Strickland v. Washington (1984), 466 U.S. 668,

687–688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio

St.3d 136, 538 N.E.2d 373, paragraphs two and three of the syllabus.          “The


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benchmark for judging any claim of ineffectiveness must be whether counsel's

conduct so undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at

686.

       {¶21} There is a strong presumption that counsel's conduct falls within the

wide range of reasonable professional assistance and that strategy and tactical

decisions exercised by defense counsel are well within the range of professionally

reasonable judgment and need not be analyzed by a reviewing court. State v.

Robinson (1996), 108 Ohio App.3d 428, 670 N.E.2d 1077. “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.

       {¶22} Levi avers that trial counsel was ineffective in his cross examination

of Joey and proposes additional questions that he suggests his counsel should have

asked Joey. However, the scope and extent of cross examination is a trial tactic,

and it was up to his counsel to determine what questions would most effectively

represent Levi’s interests. Furthermore, we find that the proposed questions were

relatively inconsequential (or had already been asked), and Levi did not indicate

how the answers to those questions would have provided any evidence that would

have changed the outcome of the trial.


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       {¶23} Levi’s claim of ineffective assistance of counsel does not satisfy

either prong of the Strickland test. The second assignment of error is overruled.

       {¶24} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jnc




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