[Cite as In re T.M., 2019-Ohio-4552.]




                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



IN RE: T.M.                             :             APPEAL NO. C-180622
                                                       TRIAL NOS. 17-6270Z
                                        :                         18-1302Z

                                        :                 O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgments Appealed From are: Reversed and Causes Remanded

Date of Judgment Entry on Appeal: November 6, 2019




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler,
Assistant Public Defender, for Defendant-Appellant.
                      O HIO F IRST D ISTRICT C OURT OF A PPEALS

M OCK , Presiding Judge.

       {¶1}    In five assignments of error, appellant T.M. claims that the trial court

erred when it ruled that he was a delinquent child for committing a felonious assault,

when it committed him to the Department of Youth Services (“DYS”) for that offense,

and when it committed him to DYS for a second, unrelated offense for which he had

previously been adjudicated delinquent. For the reasons set forth, we reverse the

decisions of the trial court and remand the causes for further proceedings.

                         Delinquency Trial Continues without
                                 Defense Witnesses

       {¶2}    The victim in this case testified that he received a call from his

daughter in which she told him that a group of children were harassing her. The

victim then walked down to the house where his daughter lived. He testified that the

other children were yelling and throwing rocks at the house. T.M., who was present,

yelled at the victim, demanding that he leave the kids alone. The victim said that, at

that point, the two “got into it.” He said T.M. started swinging at him, and he started

to protect himself. “I try to walk away from the situation, and the next thing I know,

I am waking up in the back of an ambulance.”

       {¶3}    The victim’s daughter’s mother testified that

       [the victim] started walking toward my yard and I think - - I’m not

       positive, but I think [T.M.] may have grabbed his shirt, but I know

       [T.M.] came up from behind him, and as [the victim] went to turn,

       [T.M.] grabbed him around the arms and then he went to fall

       backwards, [the victim] went with him over his shoulder and landed

       on his head.

The victim was turning to face T.M. when T.M. gave him the “bear hug.” She said

that “I guess [T.M.] fell backwards, and when he fell backwards [the victim] went


                                          2
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS

with him and went over his shoulder and landed on his head.” Later, she again said

“[T.M.] fell backwards, and he still had ahold of [the victim]. When [T.M.] went

down backwards, [the victim] went down and then his head went over his shoulder.”

She said that it looked like T.M. was about to kick the victim, but she had started

running toward them and T.M. fled.

         {¶4}   T.M. testified that he and the victim were yelling at each other. He

said that the victim then punched him in the head, and T.M. punched the victim in

the chest. He said that the victim grabbed him by the shirt and tried to pick him up,

at which point the two men fell over. T.M. said that after he fell he ran to his sister’s

house.

         {¶5}   The case had been set for trial three times after the preliminary

hearing. At the first trial setting, on July 30, 2018, the state requested a continuance

because it did not know where the victim was. Defense counsel opposed the request,

noting, “I do have two of my witnesses here.” The trial court granted the state’s

request and reset the hearing for August 20. On that date, the state again requested

a continuance because the victim had been hospitalized.           The state had been

contacted on August 16 and had filed the motion for a continuance on August 17.

Again, defense counsel stated that the defense was “prepared to go forward.” The

trial court granted that motion and the case was reset for September 18.

         {¶6}   On that date, the hearing began with defense counsel informing the

trial court that “[a]t this point we weren’t sure that the PW was going to appear. I

did have some witnesses subpoenaed. They are at school, so after - - when the

defense begins, if I can’t get them here, I would like to ask for a continuance in

progress.” The trial court said that “we’ll deal with that then. I would go ahead and

contact your witnesses and tell them to make their way to juvenile court, okay?”

         {¶7}   At the conclusion of the state’s case, defense counsel stated:


                                           3
             O HIO F IRST D ISTRICT C OURT OF A PPEALS

MS. RICE: I have been trying to get in contact with the investigator to

pick up my two witnesses from Holmes High School, and he let me

know he was up in Blue Ash, and at 10:53 this morning, he told me it’s

going to be at least 45 minutes to an hour before he could get the

witnesses here, so at this point—

THE COURT: I don’t understand why you didn’t have your witnesses

ready for trial.

MS. RICE: I did. I subpoenaed them.

THE COURT: I know, but why weren’t they here?

MS. RICE: Because apparently at the last hearing - -

THE COURT: That was a gamble you took, isn’t it?

MS. RICE: I’m sorry?

THE COURT: At the last hearing - - what were you going to say?

MS. RICE: I did subpoena them.

THE COURT: Okay

MS. RICE: And all of the other, the police officers that I subpoenaed

were here. At the last hearing we were here, the State requested a

continuance. There was some confusion, I guess. As to dad, [T.M.’s

father], thought that we were going to hold off on our witnesses to see

if the PW was going to show up. I expected them to be here. I

certainly didn’t expect them to be at school.

THE COURT: So you issued a subpoena for them to appear?

MS. RICE: I did, your honor.

THE COURT: And they are not here?

MS. RICE: Correct.

THE COURT: All right. From the state?


                                    4
                   O HIO F IRST D ISTRICT C OURT OF A PPEALS

      MR. MERSCHBACH: Yes. The State is opposed to the continuance.

      We are here ready for trial. In regards to the continuance of the last

      hearing, it was because our victim was at the V.A. We knew about that

      in advance and filed a motion in advance, which obviously we did not

      do in this case. We were prepared for our portion of the trial.

      MS. RICE:      Just for the record, the State has had multiple

      continuances in this matter, and I think the defense has never

      requested one. I think there is good cause for either the Court to allow

      a brief recess in order for my witnesses to get here or a brief

      continuance in progress.

      THE COURT: Okay. Your request for continuance is denied. Your

      witnesses were subpoenaed to be here at the time of trial. Everyone

      knew today was the trial date. You were prepared for trial. It’s just

      unfortunate you don’t have them present.

      {¶8}    At the conclusion of the trial, the trial court found T.M. delinquent for

having committed felonious assault. On the issue of knowingly causing serious

physical harm, the trial court stated “it was clear that defendant grabbed him in a

bear hug and they fell to the ground.” The trial court rejected T.M.’s self-defense

argument. Defense counsel proffered that

      [J.A. and T.D.] were witnesses to this incident. They were - - they

      talked to the police officers.    It’s on the body camera.        We did

      subpoena both of them. They are not here; however, we did try to get

      them here and were unable to. Testimony would have been, we were

      walking to Family Dollar. Dude came out and said stop messing with

      my kids, started yelling, white dude hit someone and got hit back.




                                          5
                      O HIO F IRST D ISTRICT C OURT OF A PPEALS

At a subsequent disposition hearing, the trial court ordered T.M. to be committed to

DYS for a minimum of one year up to the age of 21. Additionally, the juvenile court

imposed a six-month commitment that had been suspended in a prior, unrelated

case in which T.M. had been found delinquent for committing the offense of

aggravated assault.

                           Request For Recess/Continuance

       {¶9}    In his first assignment of error, T.M. claims that the trial court abused

its discretion when it denied his motion for a recess or continuance to get the

witnesses to court. We review a trial court's decision to grant or deny a continuance

for an abuse of discretion. See State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078

(1981). When evaluating a motion for a continuance, a court should consider:

       (1) the length of the delay requested,

       (2) whether other continuances have been requested and received,

       (3) the inconvenience to parties, witnesses, opposing counsel and the

          court,

       (4) the reason for the delay,

       (5) whether the party contributed to the circumstances that gave rise

          to the request for a continuance,

       (6) and any other relevant factors.

In re E.A., 1st Dist. Hamilton No. C-130041, 2014-Ohio-280, ¶ 5, citing Unger at 67-

68. When considering the propriety of denying a motion for a continuance, this

court considers the reasons presented at the time the request was denied. See In re

Am. Transm. Sys., 125 Ohio St.3d 333, 2010-Ohio-1841, 928 N.E.2d 427, ¶ 32.

       {¶10}   In this case, none of the Unger factors supported the denial of the

motion.



                                             6
                      O HIO F IRST D ISTRICT C OURT OF A PPEALS

          {¶11}   Length of the delay requested: As to the first prong, counsel’s request

was for an hour delay. While it is not stated in the record, it is clear from the context

that it was late morning when the request was made. At the very least, it was a time

when the witnesses were still at school.

          {¶12}   Other continuances:      As to the second prong, counsel had not

requested or received prior continuances, while the state had received two prior

continuances.

          {¶13}   Inconvenience to parties: Further, the inconvenience to the parties

would have been minimal. The delay was requested sometime shortly before the

lunch hour. The court could have recessed for that purpose, and this would have

given witnesses the time requested. Since all the state’s witnesses had testified, the

only parties impacted in any way would have been the attorneys, the judge, and the

officer who was the state’s representative (who did not actually testify in the trial).

While the trial court indicated it had other matters on its docket, those matters could

have been addressed during the recess. Based on the context, the testimony of the

two witnesses would not have taken long and the matter would still likely have been

resolved that day.

          {¶14}   Reason for the delay: Additionally, the reason for the delay was that

the witnesses were in school. From the transcript, it appears that the witnesses were

under the impression that the case might not go forward on that date, so they went to

school.     They had missed school for the two prior hearings, which had been

continued at the state’s request. While the state notes that T.M. had been warned to

have the witnesses there at the close of the state’s case, the record reflects that

counsel had attempted to get them there, but the defense investigator was in another

part of the county and would therefore be delayed getting the witnesses out of school

and to court.


                                             7
                     O HIO F IRST D ISTRICT C OURT OF A PPEALS

       {¶15}   Fault of party:        Furthermore, it does not appear that T.M.

contributed to the delay. They had been subpoenaed to be there at the beginning of

trial. Counsel stated that “I expected them to be here. I certainly didn’t expect them

to be at school.”    While counsel suggested that T.M.’s father might have said

something, there is no evidence that he did so at counsel’s request or that counsel

knew they had been told this until the witnesses failed to appear.

       {¶16}   Other factors: Finally, the record demonstrates that the request for a

recess or continuance was not for the purpose of delay, to frustrate the proceedings,

or to in any way attempt to gain an advantage. The testimony was important because

none of the state’s witnesses provided clear testimony about what had occurred, and

so the adjudication would be based on the credibility of these varied accounts.

       {¶17}   Few cases find that a trial court abuses its discretion when it denies a

motion for a continuance. But this court has previously found such an abuse of

discretion. See In re R.W., 1st Dist. Hamilton Nos. C-130151 and C-130152, 2014-

Ohio-175, rev’d on other grounds, 140 Ohio St.3d 1433, 2014-Ohio-4160, 16 N.E.3d

678. In that case, this court said:

               Contrary to the belief of the trial court, the state had not

       sought a prior continuance because of the witness’s unavailability.

       While the witness was not present at the initial hearing, the case was

       continued at that time solely for the purpose of determining the proper

       judge to hear the case. The state had indicated that, while the witness

       was not present, she could be called if needed and could be in court in

       20 minutes.

               According to the record, the witness was not available on

       February 20 because she had not been consulted about her availability

       when the date for the hearing had been set, and was scheduled to be


                                          8
                      O HIO F IRST D ISTRICT C OURT OF A PPEALS

        out-of-town on that day. The state shortly discovered the scheduling

        problem and asked for a continuance two weeks prior to the hearing

        date. Therefore, the state did everything possible to mitigate the

        situation and cannot be said to have contributed to the circumstances

        giving rise to the request such that a dismissal was proper. Further,

        there was no discussion of how the delay would inconvenience the

        parties, witnesses, or the court.

                  Under the facts of this case, we conclude that the trial court

        abused its discretion when it denied the state's request for a

        continuance and dismissed the case.

Id. at ¶ 11-13.

        {¶18}     Likewise, defense counsel in this case did “everything possible to

mitigate the situation and cannot be said to have contributed to the circumstances

giving rise to the request.” Since none of the factors weighed in favor of denying the

request, the trial court abused its discretion when it denied the motion for a

continuance. Under the specific facts of this case, we sustain T.M.’s first assignment

of error.

                  Weight and Sufficiency of Evidence and Disposition

        {¶19}     Based on our determination of the first assignment of error, the

second and third assignments of error related to sufficiency and weight of the

evidence supporting the felonious assault adjudication are moot.         We therefore

decline to address them. See App.R. 12(A)(1)(c). The fourth assignment of error,

relating to the trial court’s decision to send T.M. to DYS for that adjudication, was

withdrawn by counsel.




                                            9
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS
                           Disposition of Unrelated Charge

       {¶20}   In his fifth assignment of error, T.M. claims that the trial court erred

when it ordered him to spend six months in DYS for conduct charged in an unrelated

case without first giving him notice. At the same hearing in which it imposed the

disposition for the felonious-assault charge, the trial court imposed the six-month

term that had been previously suspended in the case numbered 17-6270Z. The state

concedes that this was error because T.M. had not been notified of the probation

violation pursuant to Juv.R. 35(B) prior to the trial court’s determination. We

sustain T.M.’s fifth assignment of error.

                                      Conclusion

       {¶21}   For the reasons set forth above, the trial court abused its discretion

when it denied T.M.’s request for a one hour recess/continuance to allow two

witnesses to be brought from school. The trial court also erred when it issued a

disposition in case 17-6270Z without giving notice pursuant to Juv.R. 35(B). We

sustain T.M.’s first and fifth assignments of error, reverse the trial court’s judgments,

and remand the causes for further proceedings.

                                            Judgments reversed and causes remanded.

ZAYAS and WINKLER, JJ., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




                                            10
