 [Cite as In re L.B., 2014-Ohio-860.]




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


 IN THE MATTER OF :                              :
                                                 :      Appellate Case No. 2013-CA-22
                L.B.                                    :
                                                :       Trial Court Case No. 21320453
                                                :
                                                :     (Juvenile Appeal from Miami County
                                                :     (Probate/Juvenile Court)
                                                :
                                                :
                                            ...........

                                           OPINION

                               Rendered on the 7th day of March, 2014.

                                            ...........

ELIZABETH C. SCOTT, Atty. Reg. 0076045, 120 West Second Street, Suite 603, Dayton, Ohio
45402
      Attorney for Appellant, L.B.

PAUL M. WATKINS, Atty. Reg. #0090868, 201 West Main Street, Troy, Ohio 45373
     Attorney for Appellee, State of Ohio

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

FAIN, J.

       {¶ 1}       L.B. appeals from an adjudication of delinquency by reason of committing an

act that, were she an adult, would constitute the offense of Vandalism, in violation of R.C.
                                                                                           2


2909.05(B)(1)(b). L.B. contends that the juvenile court erred by denying her Crim.R. 29 motion

for acquittal because the State failed to present evidence sufficient to support her adjudication.

She further claims that the adjudication is against the weight of the evidence.

       {¶ 2}       We conclude the State offered sufficient evidence to overcome L.B.'s Crim.R.

29 motion for acquittal and to support the adjudication of delinquency on the charge of

Vandalism. We also conclude that the adjudication is not against the manifest weight of the

evidence. The judgment of the juvenile court is Affirmed.



        I. L.B. Cuts Off her Electronically Monitored House Arrest Ankle Bracelet

       {¶ 3}      In May 2013, L.B. was adjudicated as delinquent by reason of committing an

act that would constitute Assault if she were an adult. She was placed on probation and was

confined to her home under an order of Electronically Monitored House Arrest (EMHA). The

juvenile probation department secured an ankle bracelet with an attached transmitter on L.B.’s

leg for EMHA monitoring. On May 29, 2013, L.B. left her home, cut off the ankle bracelet with

the transmitter and threw the device into a river. The device has not been recovered. She did

not return home for fourteen hours.



                                 II. The Course of Proceedings

       {¶ 4}      L.B. was charged with being delinquent by reason of committing the offense of

Vandalism. At the hearing, L.B. stipulated that she “cut off her ankle bracelet and threw it into

the river, all without permission.” She further stipulated that she “knew she wasn’t to damage

her ankle bracelet.”
[Cite as In re L.B., 2014-Ohio-860.]
        {¶ 5}     Stephanie Henning, L.B.’s probation officer, testified that L.B. was placed on

Level One Probation with EMHA, which entailed placing a transmitter attached to an ankle

bracelet onto L.B.’s leg. She testified that her duties and responsibilities required her to monitor

L.B.’s compliance with the court’s orders regarding probation, including remaining confined

within her home. Henning testified that the removal of the transmitter prevented her from being

able to monitor L.B. Henning testified that the transmitter was not recovered, and had not been

able to be used for monitoring EMHA of L.B. or others. She further testified that the transmitter

was necessary to her supervision and monitoring of L.B.’s home confinement.                     On

cross-examination, defense counsel asked the following: “Fair to say that the ankle bracelet

transmitter ... this. It’s not necessary for you to perform your duties as a probation officer,

correct?” Henning replied, “correct.”

        {¶ 6}     Following the hearing, L.B. was adjudicated delinquent, and was placed on a

period of supervision. L.B. appeals.



                 III. Because L.B.’s Act Prevented her Probation Officer from

             Performing her Duty to Monitor L.B.’s Compliance with Electronically

                 Monitored House Arrest, the State Proved that L.B. Committed

                 an Act that Would Constitute Vandalism if She Were an Adult

        {¶ 7}     L.B.’s sole assignment of error is as follows:

                 THE TRIAL COURT ERRED BY DENYING APPELLANT’S CRIM.R.

        29    MOTION         BECAUSE     THE     STATE      PRESENTED      INSUFFICIENT

        EVIDENCE TO ESTABLISH THE CHARGES, AS WELL AS THE TRIAL

        COURT’S DELINQUENCY FINDINGS WERE AGAINST THE MANIFEST
                                                                                            4


       WEIGHT OF THE EVIDENCE.

       {¶ 8}    L.B. contends that the State failed to prove the elements of the offense of

Vandalism, because there is no evidence that the loss of the transmitter prevented Henning from

performing her job duties. She further argues that the evidence demonstrates that other means

existed for monitoring her while on probation. She also argues that the adjudication is not

supported by the weight of the evidence.

       {¶ 9}      Crim. R. 29(A) states that a court shall order an entry of judgment of acquittal

if the evidence is insufficient to sustain a conviction for the charged offense. “Reviewing the

denial of a Crim. R. 29 motion therefore requires an appellate court to use the same standard as is

used to review a sufficiency of the evidence claim.” State v. Witcher, 6th Dist. Lucas No.

L-06-1039, 2007-Ohio-3960. “In reviewing a claim of insufficient evidence, ‘[t]he relevant

inquiry is whether, after reviewing 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.’” (Internal citations omitted). State v. Crowley, 2d Dist. Clark No. 2007 CA

99, 2008-Ohio-4636, ¶ 12.

       {¶ 10} “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.” State v. Cassell, 2d Dist. Clark No. 09CA0064, 2011-Ohio-23, ¶ 46. When a

conviction is challenged on appeal as being against the manifest weight of the evidence, “ ‘[t]he

court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers

the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage of justice that the conviction must be
                                                                                          5


reversed and a new trial ordered.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d

541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

L.B. assumes, and we agree, that the Ohio jurisprudence relating to Crim.R. 29 motions and

manifest-weight-of-the evidence reviews in criminal cases applies as well to juvenile delinquency

adjudications.

       {¶ 11} The offense of Vandalism is proscribed by R.C. 2909.05, which provides in

pertinent part as follows:

                 (B)(1) No person shall knowingly cause physical harm to property that is

       owned or possessed by another, when either of the following applies:

                 ***

                 (b) Regardless of the value of the property or the amount of damage done,

       the property or its equivalent is necessary in order for its owner or possessor to

       engage in the owner's or possessor's profession, business, trade, or occupation.

       {¶ 12} L.B. relies on a holding of the Eighth District Court of Appeals wherein that

court found insufficient evidence against a juvenile accused of Vandalism. In re J.A.J., 8th

Dist. Cuyahoga No. 96506, 2011-Ohio-4824. In that case, several juveniles vandalized an

outdoor learning lab at an elementary school by destroying bird houses and benches and by

painting obscene graffiti. Id. There was no evidence adduced at trial to indicate that J.A.J. had

participated in the graffiti; only that he had damaged a bench and a birdhouse. The testimony of

the school’s principal indicated that the outdoor area was rendered unusable for a period of time

due to the obscene nature of the graffiti. Id. at 15. The court held that J.A.J.’s actions did not

support an adjudication, because the bird houses and benches were not necessary to the
                                                                                          6


utilization of the outdoor area. Id. at 20-21. L.B. contends that, as in J.A.J., it might have

been more “convenient” if the damage to the property had not occurred, but the damage did not

prevent Henning from carrying out her duties, because the ankle bracelet transmitter was not the

only means by which Henning could monitor her location.

       {¶ 13} We find In re J.A.J. to be distinguishable. Although Henning did not claim she

was completely unable to perform the duties of her job because of the loss of the transmitter, and

although she admitted that there are other methods for supervising children on probation, she did

testify that the transmitter was necessary equipment for monitoring L.B. while L.B. was on

EMHA. The transmitter would not be necessary for types of probation other than EMHA.

Henning testified that it was her job to monitor whether L.B. followed the terms of her probation

including home confinement. She testified that she was completely unable to monitor L.B. for

fourteen hours, due to the fact that L.B. removed and discarded the transmitter.

       {¶ 14} The facts in this case are more akin to the facts in State v. Dunfee, 177 Ohio

App.3d 239, 2008-Ohio-3615, 894 N.E.2d 359 (2d Dist.). In that case, we held that a defendant

was guilty of Vandalism, pursuant to R.C. 2909.05(B)(1)(b), when he damaged the window of a

Sheriff’s Department cruiser, because the “cruiser could not be used for transporting prisoners or

other persons in custody while the window was broken and * * * was unusable during the two

hours that the window was being repaired.” Id. at ¶ 36. Despite the fact that the police

department had twelve cruisers, we found that “a reasonable fact-finder could conclude that each

cruiser was necessary for the functioning of the Sheriff’s Department.” Id.

       {¶ 15} Similarly, in State v. Glass, 10th District Franklin No. 11AP-890,

2012-Ohio-2993, the court of appeals upheld a conviction based upon evidence that the
                                                                                            7


defendant had broken a seal over a residential electric meter and taken the seal from the home.

Although the evidence was that the seal was not necessary for the provision of electricity to the

residence, the court held that the seal was necessary “to protect the electric meter from harm, and

unauthorized removal, and to prevent people from stealing electricity from the city [and thus] is

necessary for the city to conduct its business of providing electricity to the public, in this case,

[the person from whose house the meter was stolen].” Id. at ¶ 37.

       {¶ 16} The evidence in this case supports a finding that L.B. was subject to EMHA as a

condition of her probation and that the transmitter was necessary to Henning’s job of monitoring

L.B.’s compliance with the home confinement term of her probation. The issue is not that

Henning could not perform any of her duties as a probation officer, but that without the

transmitter, Henning was unable to perform her duty to monitor L.B. We agree with the juvenile

court that the removal and subsequent disposal of the transmitter prevented Henning from

performing the relevant task. We further conclude that L.B.’s actions prevented the juvenile

probation department from being able to monitor other juveniles in the future. As in Dunfee,

supra, each transmitter is necessary for the function of EMHA monitoring by the juvenile

probation office.

       {¶ 17} Although L.B. incorporates an argument that her adjudication is against the

manifest weight of the evidence, she really has no separate argument on that point. The facts in

this case are not in dispute. The only issue is whether they make out the Vandalism offense.

       {¶ 18} L.B.’s sole assignment of error is overruled.



                                        III. Conclusion
[Cite as In re L.B., 2014-Ohio-860.]
        {¶ 19} L.B.’s sole assignment of error having been overruled, the judgment of the trial

court is Affirmed.

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

DONOVAN and WELBAUM, JJ., concur.



Copies mailed to:

Elizabeth C. Scott
Paul M. Watkins
Hon. W. McGregor Dixon, Jr.

Case Name:       In the Matter Of: L.B.
Case No:                 Miami County App. No. 2013-CA-22
Panel:                   Fain, Donovan, Welbaum
Author:                  Mike Fain
Summary:                 Trial court did not err in overruling Crim.R. 29 motion and adjudicating
                         juvenile to have been delinquent. Act of cutting off Electronically
                         Monitored House Arrest ankle bracelet and throwing it in the river
                         prevented juvenile’s probation officer from performing her duty to monitor
                         the juvenile’s compliance with the terms of the house arrest for fourteen
                         hours. This act would have constituted the offense of Vandalism, in
                         violation of R.C. 2909.05(B)(1)(b), had the juvenile been an adult.
                         Affirmed.
