[Cite as In re S.W., 2011-Ohio-5291.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

                                               :

IN RE: S.W.                                     :   C.A. CASE NO. 24525

                                               :    T.C. CASE NO. 10JC1032

                                               :    (Criminal Appeal from
                                                     Juvenile Court)

                                        . . . . . . . . .

                                          O P I N I O N

                  Rendered on the 14th day of October, 2011.

                                        . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Laura M. Woodruff, Asst.
Pros. Attorney, Atty. Reg. No. 0084161, P.O. Box 972, Dayton, OH
 45422
     Attorneys for Plaintiff-Appellee, State of Ohio

Andrea M. Seielstad, University of Dayton Law School, 300 College
Park, Dayton, OH 45431
     Attorney for Defendant-Appellant

                                        . . . . . . . . .

GRADY, P.J.:

        {¶ 1} S.W., a minor child, appeals from her delinquency

adjudication and disposition for having committed the offense of

disorderly conduct - persist after warning to desist.

        {¶ 2} The evidence presented at the adjudicatory hearing

demonstrates that on February 5, 2010, after running errands,
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S.W.’s legal guardian, Brittany High, and High’s live-in fiancé,

Renato Robinson, returned home between 7:00-8:00 p.m.           They

discovered that S.W. had invited her boyfriend, D.J., to the house

without first getting their permission, which was an on-going

family issue.    Robinson told D.J. that he could not spend the night

and to call his mother and father and have them take him home.

That resulted in a verbal altercation between S.W. and High and

Robinson that escalated.      S.W. and High both became angry and

upset.

     {¶ 3} During their argument, High threw a bottle of hydrogen

peroxide at S.W., and after that went upstairs.     S.W. went to the

kitchen and removed a large knife from a kitchen drawer.       While

holding the knife in her hand, S.W. threatened to cut High’s face.

 S.W. also continued to yell at High and Robinson, who had also

gone upstairs.    S.W.’s conduct was witnessed by High’s daughter,

T.D., who was frightened that S.W. might harm her or her mother.

 T.D. told S.W. to put the knife away.   Robinson heard T.D. yelling

at S.W., and came downstairs to see what was going on.      S.W. was

in the kitchen holding the knife down by her side, and she continued

to argue with Robinson when he told her to put the knife away.

     {¶ 4} Eventually, S.W. put the knife away, after High had come

downstairs and saw S.W. with it, but S.W. continued to yell and

argue with Robinson because he had told D.J. to go home.        High
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came downstairs enraged because S.W. was still yelling and arguing

about D.J. not being allowed to stay.   Robinson stood in the kitchen

doorway between High and S.W.

     {¶ 5} High threw some shoes at S.W., and High physically

struggled with Robinson in an attempt to get at S.W.        High got

past Robinson and into the kitchen, where she physically attacked

S.W., who defended herself.     High and S.W. assaulted each other,

and during their fight High received scratches on her neck and

chest.   High fell backwards when she tripped over one of the shoes

she earlier threw at S.W.   Robinson became upset when High fell,

and told T.D. to call the police, which she did.       When Robinson

threatened to hit S.W., D.J. became involved and threatened

Robinson.

     {¶ 6} When police arrived everyone was in the kitchen, yelling

at each other.   Police observed the scratch marks on High’s neck.

 S.W. was eventually arrested for domestic violence.

     {¶ 7} On February 5, 2010, a complaint was filed in juvenile

court charging S.W. with being a delinquent child by reason of

having committed domestic violence in violation of R.C. 2919.25(A),

a misdemeanor of the first degree.      An adjudicatory hearing was

held on April 9 and 12, 2010.    At the conclusion of that hearing,

the magistrate found S.W. not responsible for the domestic violence

offense charged in the complaint.       The magistrate amended the
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complaint to charge two other offenses, and found S.W. delinquent

by reason of having committed those other offenses: domestic

violence in violation of R.C. 2919.25(C), a misdemeanor of the

fourth degree, and disorderly conduct - persist after warning to

desist, in violation of R.C. 2917.11(A)(1), (E)(3)(a), also a

misdemeanor of the fourth degree.        The magistrate immediately

proceeded to disposition and ordered S.W. to complete six months

of probation and participate in various counseling programs for

anger management and parent-teen conflict.

     {¶ 8} S.W.   timely   filed   objections   to   the   magistrate’s

decision.   The State filed its response.       On February 3, 2011,

the Juvenile Court filed its Decision and Judgment, overruling

in part and sustaining in part S.W.’s objections to the magistrate’s

decision.   The Juvenile Court agreed that the evidence presented

was legally insufficient to sustain a conviction for domestic

violence in violation of R.C. 2919.25(C), because the victim,

Brittney High, did not see S.W. with the knife and did not believe

that S.W. would cause her imminent physical harm.          Accordingly,

the Juvenile Court dismissed the domestic violence charge in

violation of R.C. 2919.25(C).      The juvenile court further found

that the evidence presented was sufficient to        find that S.W. was

responsible for committing the offense of disorderly conduct -

persist after warning to desist in violation of R.C. 2917.11(A)(1),
                                                                     5

(E)(3)(a), and that the offense is a lesser included offense of

domestic violence under R.C. 2919.25(A) as originally charged in

the complaint.     The court adjudicated S.W. a delinquent child based

on that finding.    Finally, the juvenile court ruled that, pursuant

to Juv.R. 32, S.W. was not entitled to see, prior to the adjudicatory

hearing, a social history or the Disposition Investigation Report

(DIR) prepared in this case.

     {¶ 9} S.W. timely appealed to this court from the Juvenile

Court’s Decision and Judgment overruling in part her objections

to the magistrate’s decision.

     FIRST ASSIGNMENT OF ERROR

     {¶ 10} “THE JUVENILE COURT ABUSED ITS DISCRETION BY FINDING

(S.W.) RESPONSIBLE FOR DISORDERLY CONDUCT - PERSIST AFTER WARNING

TO DESIST BECAUSE THE JUVENILE COURT INCORRECTLY HELD THAT

PERSISTENT DISORDERLY CONDUCT WAS A LESSER INCLUDED OFFENSE OF

DOMESTIC VIOLENCE.”

     {¶ 11} A criminal defendant may be found guilty not only of

the offense(s) charged in the complaint of indictment, but also

lesser included offenses as well, even though the lesser included

offense was not separately charged.     R.C. 2945.74; State v. Evans,

122 Ohio St.3d 381, 2009-Ohio-2974, at ¶8; State v. Smith, 121

Ohio St.3d 409, 2009-Ohio-787, at ¶14.

     {¶ 12} Juv.R. 22(B) provides, in part:
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     {¶ 13} “Amendment of pleadings.   Any pleading may be amended

at any time prior to the adjudicatory hearing.            After the

commencement of the adjudicatory hearing, a pleading may be amended

upon agreement of the parties or, if the interests of justice

require, upon order of the court.      A complaint charging an act

of delinquency may not be amended unless agreed by the parties,

if the proposed amendment would change the name or identity of

the specific violation of law so that it would be considered a

change of the crime charged if committed by an adult.”

     {¶ 14} The Staff Notes to the July 1, 1994 amendment to Juv.R.

22(B) states, in relevant part:

     {¶ 15} “The revision to Juv.R. 22(B) prohibits the amendment

of a pleading after the commencement or termination of the

adjudicatory hearing unless the amendment conforms to the evidence

presented and also amounts to a lesser included offense of the

crime charged.   Because juveniles can be bound over as adults and

become subject to the jurisdiction of the criminal division of

the common pleas courts, it is important that Juv.R. 22(B) conform

with Crim.R 7(D), which similarly prohibits any amendment which

would result in a change in the identity of the crime charged.”

 (Emphasis supplied.)

     {¶ 16} A juvenile court has the discretion to amend a complaint,

and unless it abuses its discretion, we will not reverse the
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juvenile court’s decision.    In re Pennington, 150 Ohio App.3d 205,

2002-Ohio-6381.

     {¶ 17} “‘Abuse of discretion’ has been defined as an attitude

that is unreasonable, arbitrary or unconscionable. Huffman v. Hair

Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482

N.E.2d 1248, 1252. It is to be expected that most instances of

abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or

arbitrary.

     {¶ 18} “A decision is unreasonable if there is no sound

reasoning process that would support that decision.       It is not

enough that the reviewing court, were it deciding the issue de

novo, would not have found that reasoning process to be persuasive,

perhaps in view of countervailing reasoning processes that would

support a contrary result.”   AAAA Enterprises, Inc. v. River Place

Community Redevelopment (1990), 50 Ohio St.3d 157, 161.

     {¶ 19} Juv.R. 22(B) would permit the court to amend the charge

in the complaint after completion of the adjudicatory hearing,

if the amended charge is a lesser included offense of the offense

originally charged in the complaint.        Pennington.    S.W. was

originally charged in the complaint with first degree misdemeanor

domestic violence in violation of R.C. 2919.25(A), which provides:

     {¶ 20} “No person shall knowingly cause or attempt to cause
                                                                     8

physical harm to a family or household member.”

     {¶ 21} The complaint filed in the juvenile court alleged that

the victim of S.W.’s offense was High, who is S.W.’s legal guardian.

 S.W. was ultimately found responsible, after the complaint was

amended following completion of the adjudicatory hearing, of

committing disorderly conduct in violation of R.C. 2917.11(A)(1),

which provides:

     {¶ 22} “No   person   shall   recklessly   cause   inconvenience,

annoyance, or alarm to another by doing any of the following:

     {¶ 23} “Engaging in fighting, in threatening harm to persons

or property, or in violent or turbulent behavior[.]”

     {¶ 24} Ordinarily, disorderly conduct is a minor misdemeanor.

 However, pursuant to R.C. 2917.11(E)(3)(a), disorderly conduct

is a misdemeanor of the fourth degree if “the offender persists

in disorderly conduct after reasonable warning or request to

desist.”

     {¶ 25} In State v. Deem (1988), 40 Ohio St.3d 205, at paragraph

3 of the syllabus, the Ohio Supreme Court held:

     {¶ 26} “An offense may be a lesser included offense of another

if (i) the offense carries a lesser penalty than the other; (ii)

the greater offense cannot, as statutorily defined, ever be

committed without the lesser offense, as statutorily defined, also

being committed; and (iii) some element of the greater offense
                                                                       9

is not required to prove the commission of the lesser offense.

State v. Kidder (1987), 32 Ohio St.3d 279, 513 N.E.2d 311,

modified.)”

     {¶ 27} S.W. concedes that the first and third prongs of the

Deem test are satisfied in this case, because disorderly conduct

- persist after warning to desist, a fourth degree misdemeanor,

carries a lesser penalty than domestic violence in violation of

R.C. 2919.25(A), a first degree misdemeanor, and          the greater

offense of domestic violence requires proof of an element that

the lesser offense of disorderly conduct does not require: that

the victim is a family or household member.         We agree.

     {¶ 28} S.W. argues that the second prong of the Deem test is

not met because the lesser offense, disorderly conduct - persist

after warning to desist, requires proof of an element that is not

required   to   prove   the   greater   domestic    violence    offense:

persistence in the proscribed behavior after reasonable warning

or request to desist.    Therefore, because it is possible to commit

the greater offense of domestic violence in violation of R.C.

2919.25(A) without also committing this additional         element of

persistent disorderly conduct in violation of R.C. 2917.11(A)(1),

(E)(3)(a), the fourth degree misdemeanor persistent disorderly

conduct is not a lesser included offense of domestic violence.

See: State v. Burgess (1992), 79 Ohio App.3d 584;    State v. Reynolds
                                                                 10

(1985), 25 Ohio App.3d 59.

       {¶ 29} We note that even with respect to those cases where

disorderly conduct is charged not as a fourth degree misdemeanor

with    the   additional    “persistence”   element   under   R.C.

2917.11(E)(3)(a), but rather simply as a minor misdemeanor under

R.C. 2917.11(A)(1), this court has held that disorderly conduct

is not a lesser included offense of domestic violence under R.C.

2919.25(A).    In State v. Schaefer (April 28, 2000), Greene App.

No. 99CA88, we stated:

       {¶ 30} “In our view, it is possible to commit the offense of

domestic violence without committing disorderly conduct. In

particular, it is apparent that one may attempt to cause physical

harm to another without his or her knowledge, in which case the

victim will not have suffered inconvenience, annoyance, or alarm.

We concede that, in most cases, the actions by which one causes

or attempts to cause physical harm to another may also cause

inconvenience, annoyance, or alarm to that person. But a victim

might be wholly unaware of an attempt to cause physical harm where,

for example, the perpetrator throws an object at the victim, who

is not looking at the perpetrator, but misses his target, and thus

the victim suffers no inconvenience, annoyance, or alarm. Deem

requires us to conduct this analysis in the abstract: can domestic

violence, as statutorily defined, ever be committed without
                                                                  11

disorderly conduct also being committed. It is irrelevant that,

in this case, Mrs. Schaefer may in fact have suffered inconvenience,

annoyance, or alarm as a result of her husband's actions. Thus,

we conclude that disorderly conduct is not a lesser included offense

of domestic violence and that the trial court erred in convicting

Schaefer of disorderly conduct.”

     {¶ 31} With respect to the second prong of the Deem test, that

“the greater offense cannot, as statutorily defined, ever be

committed without the lesser offense as statutorily defined, also

being committed,” the Ohio Supreme in State v. Evans, 122 Ohio

St.3d 381, 2009-Ohio-2974, recently modified the second prong of

the Deem test by deleting the word “ever” in order to eliminate

the implausible scenarios being advanced by parties to suggest

the remote possibility that one offense could conceivably be

committed without the other also being committed.   Id., at ¶24-25.

 Relying upon Evans, the State argues that the argument    advanced

by S.W., that fourth degree misdemeanor persistent disorderly

conduct under R.C. 2917.11(A)(1) and (E)(3)(a) is not a lesser

included offense of first degree misdemeanor domestic violence

under R.C. 2919.25(A) because the disorderly conduct offense

requires proof of a persistence element that is not required to

prove domestic violence, falls into one of those implausible

scenarios/remote possibilities that the change made to the Deem
                                                                              12

test by Evans was intended to eliminate.              We disagree.

       {¶ 32} We    disagree     with   the   State’s   contention.          The

persistence factor that R.C. 2917.11(A)(1) and (E)(3) contemplates

does not present a remote possibility or implausible scenario with

respect to the offense of disorderly conduct.            Therefore, we must

apply the second step of the Deem test to determine whether that

fourth degree misdemeanor form of disorderly conduct is a lesser

included offense of domestic violence.

       {¶ 33} The second step of the Deem test requires a court to

examine the statutory elements of the two offenses and compare

them in the abstract to determine whether one element is the

functional equivalent of the other.            Evans, at ¶25.      The proper

overall focus is on the nature and circumstances of the offenses

as defined, rather than on the precise words used to define them.

 Id., at ¶22.        The evidence presented in a particular case is

irrelevant     to    the   determination      of   whether   an   offense,    as

statutorily defined, is necessarily included in a greater offense.

 Id., at ¶13.

       {¶ 34} An element to element comparison of domestic violence,

R.C.    2919.25(A),        and   persistent    disorderly     conduct,   R.C.

2917.11(A) (1), (E)(3)(a), readily reveals that disorderly conduct

contains an additional element, persisting in disorderly conduct

after reasonable warning or request to desist, that is not required
                                                                            13

to prove domestic violence.             Therefore, persistent disorderly

conduct is not a lesser included offense of domestic violence,

and the juvenile court erred in finding S.W. responsible for

committing that offense.         Burgess; Reynolds.

       {¶ 35} The State argues that the “persistent” disorderly

conduct which, per R.C. 2917.11(E)(3)(a), elevates the offense

from a minor misdemeanor to a fourth degree misdemeanor, is not

an element of the offense, but merely an enhancement factor

increasing the degree of the violation.          We do not agree.     Unlike,

for example, the age of the victim of a sex offense, or the value

of property taken in a theft offense, which are matters resulting

from    and    collateral   to    the    defendant’s      criminal   conduct,

persistence in disorderly conduct after reasonable warning or

request to desist necessarily involves the defendant’s criminal

conduct.      Prohibited conduct, coupled with the required culpable

mental state, is the basis of criminal liability.           R.C. 2901.22(A).

 Therefore,        the   persistence      that     R.C.     2917.11(E)(3)(a)

contemplates is not merely an enhancement factor but an element

of the offense of disorderly conduct when persistence is charged.

 As such, the persistence element of the offense must be considered

when applying the second step of the Deem test.

       {¶ 36} As   previously    discussed,   we   have    held   that   minor

misdemeanor disorderly conduct under R.C. 2917.11(A)(1), even
                                                                  14

absent the additional “persistence” element that elevates that

offense to a fourth degree misdemeanor under R.C. 2917.11(E)(3)(a),

is not a lesser included offense of domestic violence under R.C.

2919.25(A).   Schaefer.    Our holding remains unaffected by City

of Shaker Heights v. Mosley, 113 Ohio St.3d 329, 2007-Ohio-2072,

which the State cites.    In that case, the Ohio Supreme Court held

that minor misdemeanor disorderly conduct under R.C. 2917.11(A)(1)

is a lesser included offense of domestic violence under R.C.

2919.25(C).      The     Supreme   Court,   however,   specifically

distinguished cases, including Schaefer, where    domestic violence

was charged under R.C. 2919.25(A).     Id., at ¶17.

     {¶ 37} However, our holding in Schaefer preceded the Supreme

Court’s decision in Evans.    We believe that the holding in Evans

undermines our rationale in Schaefer, to the extent that we relied

on the possibility that a victim may, in some instances, be wholly

unaware of an attempt to cause physical harm.    Unless the evidence

in a particular case demonstrates that the victim was unaware,

there is now no basis to hold that the minor misdemeanor form of

domestic violence that R.C. 2917.11(A)(1) prohibits cannot be a

lesser included offense of domestic violence, in violation of R.C.

2919.25(A) under the second prong of Deem.

     {¶ 38} S.W.’s first assignment of error is sustained.

     SECOND ASSIGNMENT OF ERROR
                                                                             15

     {¶ 39} “THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT

A FINDING OF RESPONSIBILITY FOR EITHER FOURTH DEGREE OR MINOR

MISDEMEANOR       DISORDERLY   CONDUCT;    AND     THE     JUVENILE    COURT’S

ADJUDICATION OF S.W. FOR DISORDERLY CONDUCT IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

     {¶ 40} Our determination of the first assignment of error

renders moot the error herein assigned with respect to the fourth

degree version of disorderly conduct.             Accordingly, we need not

decide that aspect of the error assigned.              App.R. 12(A)(1)(c).

     {¶ 41} We also determined in deciding the first assignment of

error that the minor misdemeanor form of disorderly conduct

prohibited by R.C. 2917.11(A)(1) may be a lesser included offense

of domestic violence.      However, in the present case, the juvenile

court did not amend the complaint pursuant to Juv.R. 22(B) to charge

the minor misdemeanor.         Therefore, any finding by us that the

evidence    was     insufficient   to     prove    a     violation    of   R.C.

2917.11(A)(1) would be premature and merely advisory.

     {¶ 42} The case will be remanded to the juvenile court to

consider application of the minor misdemeanor form of domestic

violence.   We believe that the better practice under Juv.R. 22(B),

at this stage, would be to require the State to amend its complaint

to charge the minor misdemeanor, if the State wishes to do so,

following which a further adjudicatory hearing may proceed.                  A
                                                                            16

hearing will permit the court to sort out any issues of proof the

amendment presents, such as, for example, which of the persons

present suffered “inconvenience, annoyance, or alarm” by reason

of S.W.’s conduct.

       {¶ 43} The second assignment of error is overruled in part and

sustained in part.

       THIRD ASSIGNMENT OF ERROR

       {¶ 44} “THE JUVENILE COURT ERRED IN DENYING S.W.’S REQUEST TO

INSPECT THE DISPOSITION INVESTIGATION REPORT PREPARED BY THE

JUVENILE COURT’S INTERVENTION CENTER UPON HER ARREST IN ADVANCE

OF THE ADJUDICATORY HEARING.”

       {¶ 45} The report at issue is in the nature of a “Social History

and Physical Examination Report” authorized by Juv.R. 32.                 S.W.

requested access to the report, prior to the adjudicatory hearing.

 The magistrate denied the request, finding, after an in camera

review, that none of the information in the report was relevant

to    the   issue    of   delinquency   to    be   adjudicated.   S.W.    was

subsequently adjudicated delinquent and committed to probation.

       {¶ 46} S.W. objected to the magistrate’s denial of her request

for    access   to    the   report.     The   trial   court   overruled   the

objections.     The court found that S.W.’s request was premature,

and that the magistrate had good cause to deny access, per Juv.R.

32(C).
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     {¶ 47} S.W. argues that the report should not have been prepared

prior to her adjudication, and that the juvenile court abused its

discretion when it overruled her objections to the magistrate’s

decision.

     {¶ 48} Our decision sustaining S.W.’s first assignment of error

renders moot the error S.W. assigns herein.      Therefore, we need

not decide it.   App.R. 12(A)(1)(c).   Further, at S.W.’s request,

we provided the parties copies of the report prior to oral argument.

 Therefore, it is available to S.W. for purposes of any proceedings

on remand.

                               Conclusion

     {¶ 49} Having sustained S.W.’s first assignment of error, we

will reverse the juvenile court’s judgment adjudicating S.W. a

delinquent child for having engaged in conduct violative of R.C.

2917.11(E)(3)(a), and the dispositional order entered on that

adjudication.    The case is remanded to the juvenile court for

further proceedings on the complaint alleging that S.W. is a

delinquent child.



FAIN, J., And FROELICH, J., concur.



Copies mailed to:

Laura M. Woodruff, Esq.
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Andrea M. Seielstad, Esq.
Hon. Anthony Capizzi
