[Cite as In re E.C., 2018-Ohio-5276.]




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

 IN THE MATTER OF: E.C., A MINOR               :
 CHILD                                         :
                                               :   Appellate Case No. 2018-CA-41
                                               :
                                               :   Trial Court Case No. 2017-1224
                                               :
                                               :   (Appeal from Common Pleas Court-
                                               :   Juvenile Division)
                                               :
                                               :

                                         ...........

                                         OPINION

                          Rendered on the 28th day of December, 2018.

                                         ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

LAUREN HAMMERSMITH, Atty. Reg. No. 0096671 and TIMOTHY B. HACKETT, Atty.
Reg. No. 0093480, Assistant State of Ohio Public Defenders, 250 East Broad Street,
Suite 1400, Columbus, Ohio 43215
       Attorneys for Defendant-Appellant

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



TUCKER, J.
                                                                                             -2-




       {¶ 1} E.C. appeals from his adjudication of delinquency in the Clark County Court

of Common Pleas, Juvenile Division, for an act that, if committed by an adult, would

constitute the offense of assault. E.C. challenges the adjudication claiming that it was

not supported by sufficient evidence and was against the manifest weight of the evidence.

He further contends that the court erred by considering the doctrine of transferred intent

in finding that he acted knowingly, since the State specifically noted its intent not to utilize

such an argument. For the following reasons, we affirm.



                             I. Facts and Procedural History

       {¶ 2} On May 15, 2015, E.C. was charged by complaint in the Gallia County

Juvenile Court. The complaint alleged that E.C. was delinquent by reason of committing

an act that would constitute burglary if committed by an adult. E.C. was subsequently

adjudicated delinquent. Because E.C. was a resident of Clark County, the matter was

transferred to the Clark County Juvenile Court and assigned case number 2015-0670.

Thereafter, a dispositional hearing was conducted and the juvenile court ordered a

suspended commitment to the Ohio Department of Youth Services (ODYS). E.C. was

also referred to a rehabilitation center and ordered to comply with the terms of his parole.

In December 2015, E.C. violated the terms of his parole and was committed to ODYS.

       {¶ 3} In January 2017, E.C. was again placed on parole. However, that same

month, he again violated the terms of his parole. At that time, his parole was revoked

and he was committed to ODYS for a term of 90 days. Thereafter, he was again placed

on parole.
                                                                                        -3-


         {¶ 4} In September 2017, a notice of parole violation was filed with the juvenile

court.    The notice alleged that E.C. had been questioned by the Springfield Police

outside a bar at approximately 1:30 a.m., thereby violating his parole rule requiring him

to be in his residence between 8 p.m. and 7 a.m. A hearing was conducted on December

4, 2017 at which time E.C. admitted the violation. The court ordered E.C. to be held in

the Clark County Juvenile Detention Center (“the detention center”) pending disposition.

         {¶ 5} On December 15, 2017, prior to the disposition of the parole violation, E.C.

was charged with delinquency by reason of committing the offense of assault against

Melanie Rogers and Matthew Hayes, who were employees of the detention center. The

case was assigned number 2017-1224. A trial was conducted on February 21, 2018.

         {¶ 6} During the trial, the parties stipulated to the admission of a video of the

incident which led to the assault charges.1 In the video, E.C. and five other juveniles

were seated in a classroom in the detention center. Melanie Rogers was present in the

room. E.C. and another juvenile, D.G., rose from their chairs and approached each

other. Rogers moved between the two boys at which time E.C. threw a punch at D.G.

As the two continued to fight, Rogers became entangled with the combatants while she

attempted to separate them. As the fight continued, Hayes entered the room and began

to restrain E.C. while Rogers attempted to restrain D.G. D.G. immediately complied and

even appeared to help Rogers off the floor.          After the boys were separated, E.C.

continued to struggle against Hayes. A third worker entered the room and escorted D.G.

out of the room. Rogers then returned to help Hayes with E.C., who continued to resist.



1
    The video of the incident does not have audio.
                                                                                       -4-


At one point, E.C. moved his arm upward toward Rogers’s head, and her head, in a

fashion corresponding to E.C.’s arm movement, can be observed moving backward.

E.C. then shoved Rogers toward the door. Hayes and E.C. continued to struggle and

eventually faced each other in a boxing position. E.C. grabbed a chair, started to lift it

upward, and then put it back down. At that point, E.C. stopped struggling.2

      {¶ 7} The juvenile court acquitted E.C. of assault with regard to Hayes, but

adjudicated E.C. delinquent upon a finding that he assaulted Rogers. A dispositional

hearing was conducted on March 2, 2018.          In case number 2017-1224, the court

committed E.C. to ODYS for an indefinite term consisting of a minimum term of 6 months

and a maximum not to exceed his 21st birthday. In case number 2015-0670, the court

revoked E.C.’s parole and committed him to a term of 90 days at ODYS.

      {¶ 8} E.C. appeals.3



                 II. Sufficiency and Manifest Weight of the Evidence

      {¶ 9} E.C.’s first and second assignments of error provide as follows:

             THE CLARK COUNTY JUVENILE COURT VIOLATED E.C.’S

      RIGHT TO DUE PROCESS OF LAW, BECAUSE ITS ADJUDICATION

      FOR ASSAULT WAS NOT SUPPORTED BY SUFFICIENT AND

      RELIABLE      EVIDENCE,      IN   VIOLATION      OF    THE    FIFTH      AND

      FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND


2
 Hayes, Rogers and E.C. testified during trial. Testimony relevant to this appeal will be
discussed below.

3
 The cases were consolidated for purposes of appeal.         E.C. has not asserted any
assignments of error in 2015-0670.
                                                                                        -5-


       ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.

              THE CLARK COUNTY JUVENILE COURT VIOLATED E.C.’S

       RIGHT TO DUE PROCESS OF LAW, BECAUSE THE ADJUDICATION

       FOR ASSAULT WAS NOT SUPPORTED BY CREDIBLE EVIDENCE, IN

       VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

       U.S. CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE U.S.

       CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO

       CONSTITUTION.

       {¶ 10} In these assignments of error, E.C. contends that his juvenile adjudication

with regard to the assault offense was not supported by sufficient evidence and was

against the manifest weight of the evidence.

       {¶ 11} When considering whether a juvenile's adjudication is supported by

sufficient evidence, an appellate court applies the same standard of review that is applied

in adult criminal cases. In re C.M., 12th Dist. Butler No. CA2003-03-063, 2004-Ohio-

1927, ¶ 10, citing In re Washington, 81 Ohio St.3d 337, 339, 691 N.E.2d 285 (1998). “A

sufficiency of the evidence argument disputes whether the State has presented adequate

evidence on each element of the offense to allow the case to go to the jury or sustain the

verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-

525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

When reviewing a claim as to the sufficiency of the evidence, “the relevant inquiry is

whether any rational factfinder viewing the evidence in a light most favorable to the state

could have found the essential elements of the crime proven beyond a reasonable doubt.”

Id. at ¶ 11, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph
                                                                                          -6-


two of the syllabus.

       {¶ 12} “A weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” (Citation omitted.) Id. at ¶ 12. When evaluating whether a

conviction is against the manifest weight of the evidence, the appellate court must review

the entire record, weigh the evidence and all reasonable inferences, consider witness

credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact

“clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.” Thompkins at 387, quoting State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The fact that the evidence is

subject to different interpretations does not render the conviction against the manifest

weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013 CA 61, 2013 CA

62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.

       {¶ 13} Further, “[a]lthough sufficiency and manifest weight are different legal

concepts, manifest weight may subsume sufficiency in conducting the analysis; that is, a

finding that a conviction is supported by the manifest weight of the evidence necessarily

includes a finding of sufficiency.” State v. McCrary, 10th Dist. Franklin No. 10AP-881,

2011-Ohio-3161, ¶ 11; accord State v. Flores-Lopez, 2d Dist. Montgomery No. 26964,

2016-Ohio-7687, ¶ 26. Therefore, “a determination that a conviction is supported by the

weight of the evidence will also be dispositive of the issue of sufficiency.” State v.

Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.

       {¶ 14} Finally, the trier of fact sees and hears the witnesses at trial; thus, we must

defer to the factfinder's decisions whether, and to what extent, to credit the testimony of
                                                                                               -7-

particular witnesses.     State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684, *4 (Aug. 22, 1997). Accordingly, the credibility of the witnesses and the weight

to be given to their testimony are matters for the trier of fact to resolve. State v. Hammad,

2d Dist. Montgomery No. 26057, 2014-Ohio-3638, ¶ 13, citing State v. DeHass, 10 Ohio

St.2d 230, 231, 227 N.E.2d 212 (1967). This court will not substitute its judgment for

that of the trier of fact on the issue of witness credibility “unless it is patently apparent that

the factfinder lost its way.” (Citation omitted.) State v. Bradley, 2d Dist. Champaign No.

97-CA-03, 1997 WL 691510, *4 (Oct. 24, 1997).

       {¶ 15} E.C. was adjudicated delinquent for assault in violation of R.C. 2903.13(A),

which provides that “[n]o person shall knowingly cause or attempt to cause physical harm

to another * * *.”4 “A person acts knowingly, regardless of his purpose, when he is aware

that his conduct will probably cause a certain result or will probably be of a certain nature.

* * * ” R.C. 2901.22(B). Physical harm is defined at R.C. 2901.01(A)(3) as “any injury,

illness, or other physiological impairment, regardless of its gravity or duration.”

       {¶ 16} E.C. contends that the State failed to prove that he acted knowingly or that

he caused physical harm to Rogers. In support, he notes that at trial he testified that he

did not intend to harm Rogers. He also cites Hayes’s testimony that E.C. had no “intent”

to hurt Rogers and that E.C. was merely attempting to free his arm when “his fingertips

or something hit [Rogers] across the chin or something.” Finally, he cites Rogers’s



4
  If committed by an adult, an assault is, typically, a first degree misdemeanor. See R.C.
2903.13(C)(1). However, the circumstances of the offense can elevate the offense to a
felony. If the offense in this case had been committed by an adult, it would have been a
fifth degree felony. This is so because the offense occurred on the grounds of a local
correctional facility, the victim was an employee of the facility, and E.C. was in custody
when the offense occurred. See R.C. 2903.13(C)(4)(a).
                                                                                       -8-


testimony that she did not observe E.C. hit, bite or kick her, and that she did not know

how, or when, her bruising and bloody lip occurred.

      {¶ 17} “Commonly, there is no direct evidence of a defendant's state of mind so

the state must rely on circumstantial evidence to satisfy this element of its case. A

defendant's state of mind may be inferred from the totality of the surrounding

circumstances.” State v. Rodano, 2017-Ohio-1034, 86 N.E.3d 1032, ¶ 43 (8th Dist.),

quoting In re Horton, 4th Dist. Adams No. 04CA794, 2005-Ohio-3502, ¶ 23.

      {¶ 18} While we are aware of the testimony of E.C., Hayes, and Rogers, as

described above, we note that E.C. also testified that, while he was angry when he was

fighting D.G., he became even angrier after that fight concluded because he felt that

Hayes was trying to choke him. He also testified that he wanted to fight Hayes, and he

admitted that he pushed Rogers and continued to struggle with her.          E.C. can be

observed on the videotape struggling with Rogers, at which point he made contact with

her face and then proceeded to violently push her toward the door. Hayes’s testimony

corroborates the contact between E.C. and Rogers’s face.

      {¶ 19} We are not prepared to say that the juvenile judge lost his way when he

found that E.C. knowingly caused Rogers harm. The court was free to credit all, some

or none of the testimony presented at trial. Regardless of whether Rogers thought that

E.C. had hit her, the video and Hayes’s testimony provide a basis for a reasonable finder

of fact to conclude E.C. hit Rogers in the lower portion of her face while struggling with

her. Further, a reasonable finder of fact may infer that this contact caused Rogers’s lip

to bleed. As noted, E.C. acknowledged that he was angrier at that point than he had

been during the fight with D.G. He also admitted to pushing and struggling with Rogers.
                                                                                         -9-


Thus, the court could have reasonably concluded that E.C. was aware that his conduct

would probably cause injury, satisfying the culpability state of knowingly set forth in the

assault statute.

       {¶ 20} E.C. also argues that, since Rogers’s position required her to intervene in

fights that occurred between juveniles housed in the detention center, this court would

“create a slippery slope” by concluding that E.C.’s “touches” to Rogers constituted

assault. We do not agree.

       {¶ 21} The fact that Rogers’s job required her to control the juveniles in the

detention center was irrelevant to the determination of this case.        E.C.’s “touches”

included hitting Rogers in the lower face and causing her lip to bleed. While a person’s

job might require her to attempt to stop inmate fighting, it cannot require her to submit to

a knowing assault.

       {¶ 22} We conclude that the adjudication was supported by sufficient evidence,

and it was not against the manifest weight of the evidence.          The first and second

assignments of error are overruled.



                                  III. Transferred Intent

       {¶ 23} E.C.’s third assignment of error states:

              THE    CLARK     COUNTY       JUVENILE        COURT    ABUSED      ITS

       DISCRETION       WHEN      IT   APPLIED     THE      LEGAL    THEORY      OF

       TRANSFERRED INTENT WHEN IT WAS DELIBERATELY WAIVED BY

       THE STATE.

       {¶ 24} E.C. contends that the juvenile court abandoned its role as a neutral arbiter
                                                                                         -10-


when it utilized the doctrine of transferred intent in adjudicating him delinquent.

       {¶ 25} “The doctrine of transferred intent indicates that where an individual is

attempting to harm one person and as a result accidentally harms another, the intent to

harm the first person is transferred to the second person and the individual attempting

harm is held criminally liable as if he both intended to harm and did harm the same

person.” State v. Free, 2d Dist. Montgomery No. 15901, 1998 WL 57373, *10, quoting

State v. Mullins, 76 Ohio App.3d 633, 636, 602 N.E.2d 769 (10th Dist.1992).

       {¶ 26} During closing argument, the State indicated that it did not intend to rely

upon this doctrine to prove the mens rea for assault, because the assault charge was not

based upon the time frame during which E.C. was fighting D.G. Instead, the prosecutor

specifically stated that the assault charge was strictly related to the events that occurred

after D.G. was removed from the scene, thereby rendering the doctrine inapplicable. In

other words, because the assault did not occur during the time the two boys were fighting

each other, and because the State did not claim that E.C.’s intent to harm D.G. should

transfer to Rogers, the State apparently concluded that utilization of the doctrine was

unnecessary.

       {¶ 27} We note that the court, in its decision, did discuss the doctrine. However,

we cannot say that the court improperly applied it to this case.         Instead, the court

specifically stated that the evidence presented at trial supported a finding that E.C.

knowingly caused physical harm to Rogers. The court’s findings of fact indicate that its

conclusions were based upon a finding that, after the fight with D.G. had concluded, E.C.

continued to fight with Hayes and Rogers, and E.C. pushed Rogers and struck her in the

face, causing her lip to bleed. The juvenile court’s finding regarding how Rogers was
                                                                                  -11-


injured was not dependent upon the use of the doctrine of transferred intent.

       {¶ 28} The third assignment of error is overruled.



                                     IV. Conclusion

       {¶ 29} All of E.C.’s assignments of error being overruled, the judgment of the

juvenile court is affirmed.



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



WELBAUM, P.J. and HALL, J., concur.



Copies sent to:

Andrew P. Pickering
Lauren Hammersmith
Timothy B. Hackett
Hon. Thomas J. Capper
