[Cite as In re G.L.L., 2015-Ohio-3539.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


IN THE MATTER OF:                               :      OPINION
G.L.L., DELINQUENT CHILD
                                                :
                                                       CASE NOS. 2014-G-3189
                                                :            and 2014-G-3190



Appeals from the Geauga County Court of Common Pleas, Juvenile Division, Case
Nos. 13 JD 000421 and 13 JD 000467.

Judgment: Affirmed.


James R. Flaiz, Geauga County Prosecutor, and Katherine A. Jacob, Assistant
Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For
Appellee – State of Ohio).

Sheryl A. Trzaska, Assistant State Public Defender, 250 East Broad Street, #1400,
Columbus, OH 43215-9308 (For Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, G.L.L., appeals from the judgment entries of the Geauga

County Court of Common Pleas, Juvenile Division, adjudicating him delinquent on five

counts arising from two complaints, and ordering him to serve five consecutive 90-day

terms of detention. G.L.L. contends the trial court was without jurisdiction to proceed on

one complaint; that the adjudications are unsupported by sufficient evidence; that the

trial court denied him the constitutional right to confront witnesses and present his
defense; and, that he cannot be sentenced to five consecutive terms of detention.

Finding no error, we affirm.

       {¶2}   On or about August 9, 2013, G.L.L. was paroled from the Department of

Youth Services (“DYS”), and placed at the Tri-State Youth Academy. He was subject to

a Unified Case Plan.     On October 8, 2013, G.L.L. met with his case worker from

Geauga County Job and Family Services (“GCJFS”), Jodi Miller. He reported to her

alleged instances of harassment by two Tri-State employees, Mr. Wolf and Mr.

Simmons. A Tri-State employee was present in the room during part of the meeting.

Based on G.L.L.’s report, Ms. Miller commenced an investigation, which remained

ongoing at the time of hearing.

       {¶3}   On October 10, 2013, G.L.L. was part of a work detail sent to mow grass.

Evidently he was last in line. At hearing, Mr. Daniel Gentile, from Tri-State, testified he

tapped G.L.L. on the back, to get him to return to the group, and, in response, G.L.L.

punched him in the face. G.L.L. testified Mr. Gentile pushed him vigorously; grabbed

him; and, they both accidentally fell to the ground. G.L.L. claimed Mr. Gentile and

another Tri-State employee, Mr. Stephen Cline, restrained him for a lengthy period.

       {¶4}   On October 11, 2013, G.L.L. slashed his arms, and told Tri-State staff he

had swallowed glass and tacks (he had not). He hoped to be transferred out of Tri-

State. Mr. Gentile and Mr. Cline transported G.L.L. to the hospital, Mr. Cline driving.

They testified that on the way, G.L.L. grabbed Mr. Cline’s hoodie, and pulled it, causing

the latter to drive off the road, and get a red mark on his neck. G.L.L. testified Mr. Cline

simply drove off into a field, then pulled and ripped his own hoodie, and that Mr. Gentile

hit him.




                                             2
       {¶5}    On October 16, 2013, G.L.L.’s parole officer filed a complaint in three

counts in the trial court, that being Case No. 13JD000421. Count 1 alleged G.L.L. had

violated DYS Parole Rule 1 by punching Mr. Gentile in the face. Count 2 alleged G.L.L.

had violated DYS Parole Rule 6 by cutting his arm and claiming to have ingested glass

and tacks. Count 3 alleged violations of both Parole Rules 1 and 6 by grabbing Mr.

Cline’s hoodie and causing a car accident. On October 17, 2013, G.L.L. entered a plea

of not true to all counts.

       {¶6}    On November 21, 2013, State Trooper Gary Lewis, who had investigated

the automobile accident on October 11, 2013, filed a complaint in two counts against

G.L.L. in the Knox County Court of Common Pleas, Juvenile Division. Count 1 alleged

G.L.L. had committed what would be assault, a misdemeanor of the first degree, if

committed by an adult, in violation of R.C. 2903.13(A), by grabbing Mr. Cline’s hoodie

and pulling on it. Count 2 alleged G.L.L. had committed obstruction and interference

affecting view and control of driver, a minor misdemeanor if committed by an adult, in

violation of R.C. 4511.70(B), by grabbing the hoodie.

       {¶7}    On November 22, 2013, The Knox County court transferred the matter to

Geauga County, which accepted it as Case No. 13JD000467. On December 12, 2013,

G.L.L. entered a plea of not true to both counts.

       {¶8}    An adjudicatory hearing was held on January 31, 2013. Testifying for the

state were G.L.L’s parole officer, Hasani Ngozi; Mr. Gentile; Mr. Cline; Brian Bowen,

another Tri-State employee; and Trooper Lewis. G.L.L. testified on his own behalf, as

did Ms. Miller, his GCJFS case worker.          On cross examination, defense counsel

attempted to question Mr. Ngozi about G.L.L.’s allegations leading to Ms. Miller’s




                                            3
investigation. The trial court allowed Mr. Ngozi to state he was aware of the allegations,

but not what he had heard. The trial court did not allow Mr. Gentile to testify about the

allegations on cross examination. The trial court did allow Mr. Cline to testify he was

aware of the allegations, but sustained objections as to what he had heard. Similarly,

Ms. Miller was allowed to testify she was investigating, but not what she had learned.

       {¶9}      At the end of the hearing, the trial court concluded the state had proved its

case on all of the counts beyond a reasonable doubt.             Dispositional hearing went

forward February 3, 2013, with the trial court ordering G.L.L. to serve five consecutive

terms of 90 days detention on the counts, with 109 days credit for detention served.

Appeals were timely noticed, and the cases consolidated.

       {¶10} G.L.L. assigns three errors. The first assignment of error provides:

       {¶11} “The juvenile court erred when it adjudicated G.L.L. of delinquency, in

violation of R.C. 2152.02(F)(2), absent sufficient evidence that G.L.L. violated an order

of the court made under Chapter 2151 or 2151 of the Revised Code.                   Fifth and

Fourteenth Amendments to the U.S. Constitution; Section 10, Article 1, Ohio

Constitution.”

       {¶12} G.L.L. first asserts that the order reflecting the conditions of supervised

release to DYS parole does not constitute an “order” of the court under R.C.

2152.02(F)(2). He specifically argues the complaint in Case No. 13JD000421 alleged

he was delinquent for violating DYS parole rules.           R.C. 2152.02(F)(2) provides a

delinquent child includes: “Any child who violates any lawful order of the court made

under this chapter or under Chapter 2151. of the Revised Code * * *[.]” (Emphasis

added.)




                                               4
       {¶13} R.C. 2152.22(A) provides, in pertinent part: “When a child is committed to

the legal custody of the department of youth services under this chapter, the juvenile

court relinquishes control with respect to the child so committed, except as provided in

divisions * * * (H) of this section * * *[.]” (Emphasis added.)

       {¶14} R.C. 2152.22(H) provides, in pertinent part:

       {¶15} (H) When a child is committed to the legal custody of the

              department of youth services, the court retains jurisdiction * * * to

              perform the functions specified in section 5139.52 of the Revised

              Code with respect to violations of the conditions of supervised

              release granted by the release authority and to the revocation of

              supervised release granted by the release authority.

       {¶16} R.C. 5139.52(F) provides, in pertinent part:

       {¶17} If a child who is on supervised release is arrested under an order of

              apprehension, under a warrant, or without a warrant * * *, and if a

              motion to revoke the child’s supervised release is filed, the juvenile

              court of the county in which the child is placed promptly shall

              schedule a time for a hearing on whether the child violated any of

              the terms and conditions of the supervised release. If a child is

              released on supervised release and the juvenile court of the county

              in which the child is placed otherwise has reason to believe that the

              child has not complied with the terms and conditions of the

              supervised release, the court of the county in which the child is

              placed, in its discretion, may schedule a time for a hearing on




                                              5
              whether the child violated any of the terms and conditions of the

              supervised release. * * * If the court of the county in which the child

              is placed on supervised release conducts a hearing and determines

              at the hearing that the child violated one or more of the terms and

              conditions of the child’s supervised release, the court, if it

              determines that the violation was a serious violation, may revoke

              the child’s supervised release and order the child to be returned to

              the department of youth services for institutionalization or, in any

              case, may make any other disposition of the child authorized by law

              that the court considers proper. (Emphasis added.)

       {¶18} In sum, G.L.L. argues he cannot be adjudicated delinquent except for

violating an order of the juvenile court. R.C. 2152.02(F)(2). He notes he was under

DYS supervised release or parole at the time of the incidents alleged, and cites to R.C.

2152.22(A) for the proposition that the trial court had relinquished all control over him to

DYS except for matters relating to violation of and revocation of supervised release.

R.C. 2152.22(H). He observes that R.C. 5139.52(F), controlling procedures for juvenile

parole violations, speaks to filing of a motion to revoke supervised release – not to the

filing of a new complaint for adjudicating delinquency. Consequently, he argues his

parole violations were not violations of an order of the juvenile court, but only violations

of his supervised release, and that he could not be held delinquent through the filing of

a new complaint, but could only have his supervised release revoked by motion. We do

not agree.




                                             6
       {¶19} Preliminarily, we do not find this issue actually challenges the sufficiency

of the evidence under which G.L.L. was adjudicated delinquent. It is in the nature of a

challenge to the jurisdiction of the trial court in Case No. 13JD000421. The issue of a

court’s jurisdiction is a question of law reviewed de novo. In the Matter of D.P.J. and

P.R.J., 4th Dist. Scioto No. 13CA3532, 2013-Ohio-4469, ¶11.

       {¶20} Next, we agree with the state this issue was waived.              Juv.R. 22(D),

captioned “Prehearing motions,” provides, in pertinent part:

       {¶21} Any defense, objection or request which is capable of determination

              without hearing on the allegations of the complaint may be raised

              before the adjudicatory hearing by motion. The following must be

              heard before the adjudicatory hearing, though not necessarily on a

              separate date:

       {¶22} (1) Defenses or objections based on defects in the institution of the

              proceeding[.] (Emphasis added.)

       {¶23} Juv.R. 22(E), captioned “Motion time,” provides, in pertinent part: “Except

for motions filed under division (D)(5) of this rule, all prehearing motions shall be filed by

the later of: “(1) seven days prior to the hearing * * *[.]”

       {¶24} No motion to dismiss the complaint in Case No. 13JD000421 was ever

filed in the trial court. Defense counsel only raised the issue by oral motion at the

commencement of the dispositional hearing.

       {¶25} Assuming, arguendo, the issue was not waived, we still conclude G.L.L’s

argument substantively incorrect.




                                               7
      {¶26} R.C. 5139.51 governs “supervised release,” or parole, from DYS. R.C.

5139.51(B)(1) provides that when a child is placed on supervised release, DYS must

prepare a supervised release plan which is sent to the juvenile court of the county in

which the child is to be placed. The juvenile court may then add terms and journalize

the supervised release plan, as well as sending a copy to DYS.

      {¶27} In this case, the record contains G.L.L.’s “Unified Case Plan,” prepared by

DYS at the time he was placed on supervised release at Tri-State. Nothing in the

record indicates it was journalized as a court order.     Regarding this situation, R.C.

5139.51(B)(1) provides, in pertinent part:

      {¶28} If, * * * after its receipt of the copy of the supervised release plan,

             the juvenile court of the county in which the child will be placed

             neither enters in its journal the supervised release plan nor enters

             in its journal the supervised release plan plus additional terms and

             conditions added by the court, the court and the department of

             youth services may attempt to resolve any differences regarding

             the plan within three days. If a resolution is not reached within that

             three-day period, thereafter, the supervised release plan shall be

             enforceable to the same extent as if the court actually had entered

             the supervised release plan in its journal. (Emphasis added.)

      {¶29} Thus, the statute provides the case plan effectively operates as an order

of the juvenile court. This brings violations of the case plan (which includes the parole

rules) within the ambit of R.C. 2152.02(F)(2), defining a delinquent child as one “who

violates any lawful order of the court made under this chapter or under chapter 2151. of




                                             8
the Revised Code. Consequently, G.L.L.’s violations of the parole rules could be the

subject of a new delinquency complaint, rather than being addressed solely by motion

to revoke his supervised release.

      {¶30} The Supreme Court of Ohio’s recent decision in In re S.B., 121 Ohio St.3d

279, 2009-Ohio-507, provides guidance on this issue.       In S.B., the appellant was

adjudicated delinquent and placed on probation by the juvenile court. She failed to

meet the terms imposed by the court, and a new delinquency complaint was filed. The

complaint was filed pursuant to R.C. 2152.02(F), just as in Case No. 13JD000421. The

appellant pleaded true to that complaint and was adjudicated delinquent, with further

probation imposed. The appellant again failed to meet the terms of probation, and a

third delinquency complaint was filed under R.C. 2152.02(F). The appellant moved to

dismiss the complaint as a violation of due process, which the trial court denied. On

appeal, the Fifth Appellate District affirmed; the appellant was subsequently granted a

discretionary appeal to the Supreme Court of Ohio.

      {¶31} On appeal to the Court, the appellant argued, inter alia, she should have

been charged with violating probation, instead of a new delinquency charge.         The

Supreme Court of Ohio held:

      {¶32} While it may be a better policy for the state to address a juvenile’s

             nonconforming behavior through probation revocation rather than

             additional delinquency charges, we find nothing in the Revised

             Code that requires the state to employ one approach over the

             other. In this instance, the trial court acted within the express




                                          9
                 authority granted to it by statute. Because that action was lawful,

                 this court has no grounds to disturb it. S.B., supra, at ¶15.

       {¶33} Although S.B. involved probation or parole terms imposed directly by the

juvenile court rather than a violation of ODYS parole rules, as in this matter, the

circumstances are sufficiently similar to apply the same reasoning. We accordingly hold

a motion to revoke a juvenile’s supervised release, filed pursuant to R.C. 5139.52(F), is

not the only means of addressing a parole violation. The state may proceed under that

statute, but it may also proceed pursuant to R.C. 2152.02(F), by way of R.C.

5139.51(B)(1).       For these reasons, the trial court was not required to dismiss the

delinquency complaint in Case No. 13JD000421.

       {¶34} G.L.L.’s second issue under his first assignment of error asserts there was

insufficient evidence to support the finding of delinquency under R.C. 2151.02(F).

G.L.L. fails to direct any argumentation at the sufficiency of the evidence underlying his

delinquency adjudications. Rather, his entire argument is directed to the propriety of

dealing with his parole violations via complaint, rather than motion to revoke. Having

addressed this point, we decline to reach the second issue. App.R. 12(A)(2); see also

App.R. 16(A)(7).

       {¶35} G.L.L.’s first assignment of error lacks merit.

       {¶36} G.L.L’s second assignment of error provides:

       {¶37} “The juvenile court erred when it prevented G.L.L. from establishing

witness bias and from presenting his defense.             Evid.R. 616(A); Fifth, Sixth, and

Fourteenth Amendments to the U.S. Constitution; Section 10, Article 1, Ohio

Constitution.”




                                               10
      {¶38} Under this assignment of error, G.L.L. asserts the juvenile court erred

when it prevented him from establishing witness bias and presenting his defense.

G.L.L. cites to Evid.R. 616(A), captioned “Bias,” which provides:      “Bias, prejudice,

interest, or any motive to misrepresent may be shown to impeach the witness either by

examination of the witness or by extrinsic evidence.” G.L.L. contends the trial court

infringed his right to confront the witnesses against him, by refusing defense counsel

the opportunity to cross examine the state’s witnesses, particularly the Tri-State

employees, on whether their motivation was to retaliate against G.L.L. for reporting

alleged harassment by Tri-State employees Wolf and Simmons.

      {¶39} We review a trial court’s evidentiary rulings, including those regarding the

scope of cross examination, for abuse of discretion. State v. Montie, 11th Dist. Portage

No. 2006-P-0058, 2007-Ohio-2317, ¶13. The phrase “abuse of discretion” is one of art,

connoting judgment exercised by a court which neither comports with reason, nor the

record. State v. Ferranto, 112 Ohio St. 667, 676-678 (1925). An abuse of discretion

may be found when the trial court “applies the wrong legal standard, misapplies the

correct legal standard, or relies on clearly erroneous findings of fact.”       Thomas v.

Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, ¶15 (8th Dist.).

      {¶40} In this case, the trial court generally allowed defense counsel to establish

the Tri-state employees testifying were aware of G.L.L.’s allegations against Mr. Wolf

and Mr. Simmons, but excluded any testimony regarding their knowledge of the nature

of those allegations, as hearsay. The trial court made the same ruling regarding the

testimony of Ms. Miller, the GCJFS case worker investigating the allegations.




                                          11
         {¶41} G.L.L. cites State v. Denis, 117 Ohio App.3d 442, 446-447 (6th Dist.1997),

in support of his argument. In Denis, the trial court disallowed the defendant to present

evidence regarding whether the state’s witness had filed domestic violence complaints

against the defendant in the past.       The court concluded the documents included

inadmissible hearsay. The appellate court reversed the defendant’s conviction, holding

that an inquiry into prior complaints “would not be to establish the truth of any

complaints but would be relevant to [the witness’] credibility,” and would be properly

used to establish bias against the defendant. Id. at 447. G.L.L. maintains any inquiry

into how the state’s witnesses knew about his allegations would have been offered to

establish bias, not for the truth of the matter itself.     Assuming the court erred in

excluding the evidence, any error in its exclusion was harmless beyond a reasonable

doubt.

         {¶42} “The Supreme Court of Ohio has held that error is harmless if ‘there is no

reasonable possibility that the evidence may have contributed to the accused's

conviction.’ State v. Bayless (1976), 48 Ohio St.2d 73, * * *, paragraph seven of the

syllabus. The Supreme Court of Ohio has also stated that it is appropriate to find error

harmless where there is ‘either overwhelming evidence of guilt or some other indicia

that the error did not contribute to the conviction.’ State v. Ferguson (1983), 5 Ohio

St.3d 160, 166, fn. 5, * * *. See, also, Crim.R. 52(A) (harmless error defined as ‘any

error, defect, irregularity, or variance which does not affect substantial rights * * *.) To

find harmless error, a reviewing court must be able to ‘declare a belief that the error was

harmless beyond a reasonable doubt.’ Bayless, 48 Ohio St.2d 73, * * *, at paragraph




                                            12
seven of the syllabus.” (Parallel citations omitted.) State v. Slocum, 6th Dist. Wood No.

WD-04-054, 2005-Ohio-3859, ¶41.

       {¶43} This matter was tried to the court, not a jury.         Defense counsel was

allowed to put on the record that Mr. Cline, at least, was aware of G.L.L’ s allegations,

and that Ms. Miller continued to investigate them. G.L.L. testified fully as to his belief

the Tri-State employees were conspiring against him due to his allegations against Mr.

Wolf and Mr. Simmons.

       {¶44} Further, any alleged bias by the Tri-State employees would not constitute

a defense to the counts against G.L.L. Their alleged bias is no defense to hitting Mr.

Gentile or to pulling on Mr. Cline’s hoodie and causing the car accident. The only count

it might relate to is the second count in Case No. 13JD000421, alleging delinquency

through violation of DYS Parole Rule 6. That provides: “I will follow the rules of my

parents/guardians or placement facility and I will not change my residence without prior

approval of my parole officer.” The second count in Case No. 13JD000421 alleged

G.L.L. violated this rule by cutting his arm and telling the Tri-State employees he had

consumed tacks and glass. G.L.L.’s parole officer explained, under close questioning

from the trial judge, that this was a violation of Parole Rule 6, since G.L.L.’s motivation

was to get out of Tri-state and into another facility. G.L.L. admitted this, and explained it

was due to his fear of retaliation at Tri-State.   The evidence that bias and a desire to

retaliate against G.L.L. for his allegations against Mr. Wolf and Mr. Simmons could be

relevant in this respect; G.L.L., however, testified to the entire issue and the exclusion

of cumulative evidence is harmless error. See, e.g., Slocum at ¶42.

       {¶45} G.L.L.’s second assignment of error lacks merit.




                                             13
         {¶46} G.L.L.’s third assignment of error provides:

         {¶47} “The juvenile court erred when it committed G.L.L. to consecutive 90-day

terms of detention. Fifth and Fourteenth Amendments to the U.S. Constitution; Section

10, Article 1, Ohio Constitution.”

         {¶48} Preliminarily, the record indicates appellant was released on January 10,

2014; hence, any issue pertaining to his sentence has been rendered moot. If, as here,

the issue is capable of repetition, yet evading review, however, the mootness doctrine

does not apply. See, e.g., State ex rel. Dispatch Printing Co. v. Geer, 114 Ohio St.3d

511, 2007-Ohio-4643, ¶10. We shall therefore address the merits of this assigned

error.

         {¶49} Under his third assignment of error, G.L.L. asserts the juvenile court erred

when it committed G.L.L. to detention for misdemeanor adjudications for a total of 450

days. G.L.L. argues a juvenile court can only make a disposition regarding an entire

case, and thus the trial court erred in requiring him to serve detention on each count

found true. We do not agree.

         {¶50} R.C. 2152.19 provides, in pertinent part:

         {¶51} (A) If a child is adjudicated a delinquent child, the court may make

                any of the following orders of disposition, in addition to any other

                disposition authorized or required by this chapter:

         {¶52} * * *

         {¶53} (3) Place the child in a detention facility or district detention facility

                operated under section 2152.41 of the Revised Code, for up to

                ninety days[.]




                                               14
       {¶54} Those appellate courts considering the issue have concluded juvenile

courts must enter a disposition on each count of a complaint. In re Huckleby, 3d Dist.

Defiance No. 4-06-40, 2007-Ohio-6149, ¶9-11; In re S.S., 9th Dist. Summit No. 24565,

2009-Ohio-4515, ¶4; In Re D.M., 8th Dist. Cuyahoga No. 95386, 2011-Ohio-2036, ¶5-8.

       {¶55} In In re H.V., 138 Ohio St.3d 408, 2014-Ohio-812, the Supreme Court of

Ohio was asked to decide, inter alia, whether a juvenile court has the authority to

commit a delinquent juvenile to the Ohio Department of Youth Services for a

supervised-release violation and order that period of commitment to be served

consecutively to the commitment period imposed for the crime that resulted in the

violation of supervised release. The Court recognized that R.C. 2152.17(F) authorized

a court to impose consecutive commitment periods when a juvenile commits two or

more acts that would be felonies if committed by an adult. The Court observed,

however, that even though the crime that resulted in H.V.’s supervised-release violation

was a felony, R.C. 2152.17 did not apply because the supervised-release violation did

not, itself, represent an additional felony.   The Court nevertheless determined that this

did not mean the juvenile court lacked authority to impose consecutive terms for the

crime and the violation.     According to the Court, “[a]uthority to impose consecutive

terms can be found in R.C. 2152.19(A)(8), which provides that ‘[i]f a child is adjudicated

a delinquent child, the court may * * * [m]ake any further disposition that the court finds

proper. * * * .’” H.V., supra, at ¶18.

       {¶56} The Court pointed out that simply because R.C. 2152.17 sets forth

circumstances under which a juvenile court may impose consecutive terms of

commitment, it does not necessarily follow juvenile courts lack statutory authority to




                                               15
impose consecutive terms in other situations. H.V., supra, at ¶19.            The Court

emphasized H.V. was a repeat offender whose criminal conduct was escalating. Under

such circumstances, the Court determined, it would be contrary to the purposes of

juvenile dispositions in Ohio, which require, among other things, juvenile courts to

protect the public interest and safety as well as hold offenders accountable for their

actions by imposing graduated sanctions. H.V., supra, at ¶20, citing R.C. 2152.01(A).

The Court consequently determined R.C. 2152.19(A)(8) provides a separate statutory

mechanism for juvenile courts to impose a potentially more severe sanction when

necessary to achieve the purposes set forth under R.C. 2152.01(A).

      {¶57} Following the reasoning of the Court in H.V., the juvenile court did not err

in imposing consecutive terms in the detention center. Appellant was a repeat offender

whose delinquent conduct had not declined. The instant case was a result of three

counts of delinquency being filed against appellant for violating the Ohio Department

Youth Services Specific Rules of Parole. And, one of the counts of delinquency was

premised upon an assault.

      {¶58} Moreover, while the matter was pending, the record indicates appellant

continued to engage in subversive and hostile behavior with detention-center staff, the

prosecutor, and other individuals involved in his case.   The record indicates, appellant

threatened to spit on the prosecutor and have the juvenile court judge “rubbed out.” He

made racially and sexually derogatory and demeaning slurs toward unnamed staff

members. He simulated and/or claimed to be masturbating while yelling and grunting

loudly in his room. He called staff members m*****f****** and threatened to kill both

them and their wives as well as rape their daughters and shoot their “retarded kids.”




                                           16
      {¶59} In light of the conduct that caused the underlying charges to be filed, as

well as appellant’s antisocial and obstreperous behavior relating to the detention center

staff, the judge, and the prosecutor, the court did not err in fashioning a term of

confinement that involved the imposition of consecutive terms. Permitting appellant to

remain in the detention center for only 90 days for each count would be inconsistent

with the policies of holding offenders accountable for their actions and imposing

graduated sanctions for those who have repeatedly offended. As the Supreme Court of

Ohio has noted:

      {¶60} [s]ome juveniles exhibit more serious criminal tendencies and

             behavior than do other juveniles. It would be unfair to require that a

             child who has committed numerous delinquent acts to be

             committed for the same period of time as a child who was

             determined to be delinquent for only one act. The first child should

             not be rewarded for a crime spree by an interpretation that limits

             the discretion of a juvenile court. In re Caldwell, 76 Ohio St.3d 156,

             161 (1996).

      {¶61} G.L.L.’s actions leading to the complaint and his subsequent actions

relating to those he encountered while in custody demonstrate his criminal tendencies

and behavior were severe and merited a harsher term of confinement than a mere 90

days. We therefore hold the trial court’s imposition of consecutive terms of confinement

was both authorized by statute and a reasonable exercise of its sound discretion.

      {¶62} We shall briefly address the position advanced by the dissent under this

assignment of error. The dissent maintains, pursuant to the dissenting opinion in In re




                                           17
H.V., 138 Ohio St.3d 408, 2014-Ohio-812, the General Assembly’s enactment of R.C.

2152.17, which sets forth certain circumstances in which delinquent children may be

subjected to consecutive terms of confinement, limits the authority of a juvenile court to

impose such terms.      The dissent observes that statute permits consecutive terms

relating to acts which would be felonies if committed by an adult, but not acts which

would be misdemeanors. Pursuant to the maxim expressio unius est exlusio alterius,

the dissent concludes, the juvenile court lacked authority to impose consecutive terms

in this case because the acts at issue would be misdemeanors if committed by an adult.

While the dissent in H.V. provides an alternative viewpoint on the issue at bar, it is

beyond cavil that the majority opinion controls the disposition of this issue and is binding

authority on this court. Because the dissent’s position has been rejected by a majority

of the Supreme Court, it has no legal merit.

       {¶63} In addition to flouting the holding and rationale set forth in H.V., supra, the

dissent also declines to follow precedent from this court relating to the doctrine of

merger in juvenile delinquency proceedings. In In re J.D.B., 11th Dist Ashtabula No.

2002-A-0010, 2002-Ohio-6913, this court adopted the Tenth Appellate District’s ruling

from In re Skeens, 10th Dist. Franklin Nos. 81 AP-882 and 81 AP-883, 1982 Ohio App.

LEXIS 12181 (Feb. 25, 1982), which held R.C.2941.25(A), Ohio’s criminal merger

statute, does not apply to juvenile delinquency matters. This court, quoting Skeens,

pointed out:

       {¶64} “R.C. 2941.25(A) does not apply to situations where a minor is

               alleged to be a delinquent minor since, under our Juvenile Code,

               such a minor is not charged with a crime. While the commission of




                                            18
             acts which would constitute a crime if committed by an adult sets

             the machinery of the Juvenile Court in motion, the issue before the

             court is whether or not the minor has engaged in the kind of

             conduct that constitutes delinquency and will therefore justify the

             intervention of the state to assume his protection and custody.

             Evidence that the minor committed acts that would constitute a

             crime if committed by an adult is used only for the purpose of

             establishing that the minor is delinquent, not to convict him of a

             crime and subject him to punishment.”         J.D.B., supra, at ¶19,

             quoting Skeens, supra, at *6-*7.

      {¶65} The Ohio Supreme Court has acknowledged that punishment is not the

goal of the Ohio juvenile system, except as necessary to direct the child toward the goal

of rehabilitation. In re Caldwell, 76 Ohio St.3d 156, 157 (1996). Hence, even though

juvenile delinquency laws feature inherently criminal aspects, the Court has recognized

that the overriding purpose of the juvenile system is “to provide for the care, protection,

and mental and physical development of children, to protect the public from the wrongful

acts committed by juvenile delinquents, and to rehabilitate errant children and bring

them back to productive citizenship, or, as the statute states, to supervise, care for and

rehabilitate those children.” Id. at 157, quoting R.C. 2151.01.   Given these points, not

only would applying R.C. 2941.25 to juveniles be conceptually improper (because the

express language of the statute applies only to convictions), it would also inure to the

disadvantage of troubled juveniles who stand to benefit from additional treatment during

their confinement under circumstances of multiple delinquency determinations, even if




                                            19
those determinations would be allied offenses were the offender an adult. Contrary to

the dissent’s position, there is no sound policy basis or legal justification that would

support deviating from this court’s precedent set forth in J.D.B., supra.

       {¶66} G.L.L.’s third assignment of error lacks merit.

       {¶67} For the foregoing reasons, G.L.L.’s assignments of error lack merit and

the judgment of the Geauga County Court of Common Pleas, Juvenile Division, is

affirmed.



THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

                                 ___________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


       {¶68} Finding merit in all three assignments of error, I would reverse and

remand.

       {¶69} Regarding the first assignment of error, I agree with G.L.L.’s first issue

presented: that an order reflecting the conditions of supervised release to ODYS parole

does not constitute an “order” of the court, pursuant to R.C. 2152.02(F)(2), and that

violation of such an order cannot constitute the basis for a finding of delinquency. I

believe the state must address such violations by a motion to revoke pursuant to R.C.

5139.52(F).

       {¶70} The state contends this issue was waived. Admittedly, defense counsel

only raised the issue by oral motion at the commencement of the dispositional hearing,




                                            20
in contravention of Juv.R. 22(E). However, this court may take cognizance of issues

waived if they amount to plain error. See, e.g., In re M.R., 3d Dist. Defiance No. 4-11-

12, 2011-Ohio-6528, ¶20-25. I would find the failure to dismiss Case No. 13JD000421,

subjecting G.L.L. to three counts of delinquency which should not have been filed, was

plain error, since the trial court retains jurisdiction to dismiss a complaint.

         {¶71} The state relies on two recent decisions of the Supreme Court of Ohio to

support its assertion that revocation of juvenile parole may be accomplished either by

motion to revoke, or by bringing a new complaint for delinquency. In In re L.A.B., 121

Ohio St.3d 112, 2009-Ohio-354, ¶49, the court stated:

         {¶72} “Probation may not be revoked unless the juvenile has violated a court

order.    The juvenile again becomes a delinquent juvenile under R.C. 2152.02(F)(2)

(being ‘(a)ny child who violates any lawful order of the court made under this chapter or

under Chapter 2151 of the Revised Code’). During a probation revocation hearing, the

court determines whether a juvenile has violated a condition of probation. Because the

conditions of probation are established through a court order, a violation of probation

also constitutes a violation of a court order.” (Emphasis added.)

         {¶73} Thus, L.A.B. stands for both the proposition that juvenile parole violations

are violations of court orders, and the proposition such violations are properly dealt with

by a motion to revoke under R.C. 5139.52(F). This tends to support G.L.L.’s argument.

         {¶74} In In re S.B., supra, ¶15, the court stated that juvenile parole violations

may be dealt with either by way of revocation, or by the filing of additional delinquency

charges.      However, nothing in In re S.B. clearly establishes that the violations

complained of were violations of ODYS parole rules.




                                              21
       {¶75} Thus, In re L.A.B. and In re S.B. do not provide us clear direction.

However, “a juvenile court is a creature of statute and therefore has only such powers

as are conferred upon it by the legislature.” In re H.V., supra, at ¶54, citing In re Agler,

19 Ohio St.2d 70, 72-74 (1969) (O’Connor, C.J., dissenting). Further, “[a]s a general

rule, specific statutes prevail over general statutes. R.C. 1.51; State ex rel. Slagle v.

Rogers, 103 Ohio St.3d 89, 2004-Ohio-4354, ¶14, * * *.” (Parallel citation omitted.)

FCDB LBPL 2008-1 Trust v. Remely, 11th Dist. Geauga Case No. 2012-G-3098, 2013-

Ohio-4960, ¶28 (O’Toole, J., dissenting). R.C. 5139.52(F) provides a specific procedure

for dealing with parole violations by juveniles on supervised release from ODYS – the

filing of a motion to revoke. The statutes cited by the state simply provide that a juvenile

is delinquent if he or she violates a court order, R.C. 2152.02(F)(2); and that supervised

release plans may operate as court orders. R.C. 5139.51(B)(1). They are general. As

the legislature has provided a specific statute with a specific procedure dealing with

violations of ODYS supervised release, it must be applied, to facilitate the legislative

intent. R.C. 5139.52(F) controls in the situation presented in this appeal.

       {¶76} The trial court should have dismissed the delinquency complaint in Case

No. 13JD000421, since the legislature has given specific instructions on how the

juvenile court must operate.

       {¶77} I also find merit in G.L.L’s second assignment of error – that he should

have been allowed to cross examine the Tri-State employees for bias, on whether they

were motivated to retaliate against G.L.L. for reporting alleged harassment by Tri-State

employees Wolf and Simmons.




                                            22
       {¶78} “Due process of law requires that in a juvenile delinquency proceeding

where the juvenile may be committed to a state institution many, if not most, of the

rights afforded to adult criminal defendants must be afforded to the juvenile. In re: Gault

(1967) 387 U.S. 1, 30. Included among these rights is * * * the right to confrontation. Id.

at 31-56.” In re Caruso, 6th Dist. Lucas No. L-90-250, 1991 Ohio App. LEXIS 2292, *7

(May 17, 1991).

       {¶79} “‘The Sixth Amendment to the United States Constitution provides: “In all

criminal prosecutions, the accused shall enjoy the right to (* * *) be confronted with the

witnesses against him (* * *).” Further, Article I, Section 10 of the Ohio Constitution

provides, in relevant part: “In any trial, in any court, the party accused shall be allowed

to appear and defend in person and with counsel (***) (and) meet the witnesses face to

face ***.”’ State v. Minier (Sept. 28, 2001), 11th Dist. No. 2000-P-0025, 2001-Ohio-

4285, ¶7, citing Delaware v. Van Arsdall (1986), 475 U.S. 673, 679, * * *.” (Parallel

citations omitted.) Montie, supra, ¶14.

       {¶80} Thus, in juvenile proceedings where the child faces a loss of freedom, the

child’s constitutional rights, including the right to confront the witnesses against him or

her must be safeguarded. As the court stated in United States v. The William, D.Mass.

No. 16,700, 1808 U.S Dist. LEXIS 5, *20 (Sept. 1808), quoting Alexander Hamilton, The

Federalist No. 78: “[T]he prior act of a superior ought to be preferred to the subsequent

act of an inferior and subordinate authority; and, that, accordingly, whenever a particular

statute contravenes the constitution, it will be the duty of the judicial tribunals to adhere

to the latter, and disregard the former.” Therefore, the interpretation and application of




                                             23
statutes and rules, including the Rules of Evidence, must yield to the superior authority

of the constitution.

       {¶81} While we review a trial court’s evidentiary rulings, including those

regarding the scope of cross examination, for abuse of discretion, Montie, supra, at ¶13,

“[w]e review alleged violations of the Confrontation Clause de novo. State v. Smith, 162

Ohio App.3d 208, 2005-Ohio-3579, * * *, ¶8 (8th Dist), citing United States v. Robinson,

389 F.3d 582, 592 (6th Cir.2004).” (Parallel citation omitted.) State v. Crawley, 8th

Dist. Cuyahoga No. 99636, 2014-Ohio-921, ¶26.

       {¶82} In this case, the trial court generally allowed defense counsel to establish

the Tri-state employees were aware of G.L.L’s allegations against Mr. Wolf and Mr.

Simmons, but excluded any testimony regarding their knowledge of the nature of those

allegations, as hearsay. The trial court made the same ruling regarding the testimony of

Ms. Miller, the GCJFS case worker investigating the allegations.

       {¶83} Admission of hearsay testimony has been allowed by the appellate courts

of this state to show bias under Evid.R. 616(A). See, e.g., Denis, supra, at 446-447. In

Denis, the appellant was found guilty of domestic violence.        Id. at 443.     He had

subpoenaed the clerks and records keepers of various courts and police departments,

intending to show that one of the principal witnesses against him, Pamela Hendrix, had

a history of filing harassing and untrue complaints against him. Id. at 443, 445-446.

The trial court quashed the subpoenas, holding the evidence from the clerks and record

keepers would be hearsay. Id. at 445, 446. The Sixth District reversed, stating:

       {¶84} “[T]he credibility of these witnesses was crucial to appellant’s conviction.

In attempting to call the records keepers of the various courts and police stations,




                                           24
appellant, though inarticulately, argued that he was trying to establish that Hendrix had

a motive to lie about the altercation. That is, he attempted to establish that Hendrix and

her husband had a history of harassing appellant. Evid.R. 616 states that ‘bias,

prejudice, interest, or any motive to misrepresent may be shown to impeach the witness

either by examination of the witness or by extrinsic evidence.’ In State v. Williams

(1988), 61 Ohio App. 3d 594, 597, * * *, quoting from 3 Weinstein, Evidence (1988),

Section 607(03), at 607-27, the court stated:

       {¶85} “‘Because the possible bias of a witness is always significant in assessing

credibility, the trier of fact must be sufficiently informed of the underlying relationships,

circumstances, and influences operating on the witness “so that, in the light of his

experience, he can determine whether a mutation in testimony could reasonably be

expected as a probable human reaction.”’

       {¶86} “Additionally, we note that Ohio ‘(* * *) follows the minority rule and does

not require that a foundation be laid as a prerequisite for the introduction of extrinsic

evidence of witness bias.’      Id.   Accordingly, the trial court erred in quashing the

subpoenas and in not allowing appellant to call these witnesses to inquire into whether

Hendrix and appellant had previously filed complaints against each other.              Such

testimony would not go to the truth of the matter asserted, i.e. the validity of those

complaints, but would rather be indicative of a bias or prejudice on the part of Hendrix

which might taint her credibility.” (Parallel citation omitted.) Denis, supra, at 446-447.

       {¶87} Mr. Gentile appears to have been the sole witness to (and victim of)

G.L.L.’s alleged assault on October 10, 2013.          He and Mr. Cline were the sole

witnesses to the alleged assault in the car on October 11, 2013. Testimony from them




                                             25
regarding their knowledge of, and attitude toward, G.L.L.’s allegations against Mr. Wolf

and Mr. Simmons would not have gone to the truth of those allegations, but was

designed to determine bias or prejudice. As such, it was an abuse of discretion for the

trial court to prevent defense counsel from cross examining these witnesses on the

subject. Denis, supra, at 446-447.

       {¶88} The majority further finds that any error in preventing the cross

examination of the Tri-State employees was harmless beyond a reasonable doubt.

Slocum, supra, at ¶41. I respectfully disagree. Apart from G.L.L. himself, they were the

sole witnesses to his alleged assaults on October 10 and 11, 2013. G.L.L. denied those

assaults, and testified he was scared that Mr. Gentile and Mr. Cline were retaliating

against him for causing the investigation of Mr. Wolf and Mr. Simmons. Thus, the

credibility of both Mr. Gentile and Mr. Cline went to the heart of G.L.L’s only defense.

       {¶89} I also find merit in G.L.L.’s third assignment of error: i.e., that he should

not have been committed for five consecutive 90-day terms of detention. Fifth and

Fourteenth Amendments to the U.S. Constitution; Section 10, Article 1, Ohio

Constitution.   I would find that, when imposing detention on a child adjudicated

delinquent for what would be misdemeanors if committed by an adult, a juvenile court

can only order concurrent, not consecutive, terms of detention.

       {¶90} As the majority notes, those appellate courts considering the issue have

concluded juvenile courts must enter a disposition on each count of a complaint.

However, all of these cases cited by the majority dealt with whether a judgment failing to

dispose of each count in a multi-count complaint was a final, appealable order, not

whether consecutive terms of detention or commitment to ODYS were proper.




                                            26
       {¶91} The majority relies on the recent decision of In re H.V., supra, in

concluding a juvenile court can impose consecutive commitments to ODYS for a

violation of supervised release, and the infraction resulting in that violation. Id. at ¶1.

The majority in H.V. found that R.C. 2152.19(A)(8) provides such authority. It further

cited to its prior decision in In re Caldwell, 76 Ohio St.3d 156 (1996) for the proposition

a juvenile court may impose consecutive terms of commitment, apart from those

circumstances enumerated by statute.

       {¶92} The chief justice, joined by Justice Pfeiffer, wrote a powerful dissent in

H.V. Relevant to this case, she wrote:

       {¶93} “In the face of silence on the issue of consecutive terms of

institutionalization, it should not be inferred that a juvenile court has the discretion to

order multiple confinement terms to be served consecutively. Although this court made

that inference in In re Caldwell, 76 Ohio St.3d 156, 1996 Ohio 410, * * * (1996), the

circumstances of Caldwell, both in law and in fact, are far different from the

circumstances of the present case.

       {¶94} “In Caldwell, the child had been adjudicated delinquent in 1994 in two

cases that were heard together. In re Caldwell, 10th Dist. Franklin Nos. 94APF07-996

and 94APF07-997, 1995 Ohio App. LEXIS 17, * * * (Jan. 31, 1995). In the first case, the

child was adjudicated delinquent on two fourth-degree felony counts of aggravated

vehicular assault, and in the second case, the child was adjudicated delinquent on a

third-degree felony count of receiving stolen property. The juvenile court imposed terms

of institutionalization for each of the three counts and ordered that they be served

consecutively. This court’s approval of the juvenile court’s dispositional decision was




                                            27
based on the fact that (1) the applicable version of R.C. Chapter 2151 made no mention

of consecutive dispositions, (2) the only guidance on the issue was found in the

instructions that a court shall ‘(m)ake any further disposition that the court finds proper’

under former R.C. 2151.355(A)(11), Am.Sub.H.B. No. 725, 144 Ohio Laws, Part IV,

6368, 6372, effective April 16, 1993, and (3) future cases would be governed by the

then newly amended R.C. 2151.355(B)(2), Am.Sub.H.B. No. 1, 146 Ohio Laws, Part I,

31, 34, effective January 1, 1996, which expressly provided for consecutive terms of

confinement in cases such as Caldwell’s. Caldwell, 76 Ohio St.3d at 158-159, * * *, fn.

1.

       {¶95} “Caldwell was decided at a time when R.C. Chapter 2151 governed

children who were abused, neglected, or dependent, as well as juvenile delinquents.

See In re Cross, 96 Ohio St.3d 328, 2002-Ohio-4183, * * *, ¶9. However, the juvenile

statutory scheme was significantly altered in 2002 by the Juvenile Justice Reform Act,

Am.Sub.S.B. No. 179, 148 Ohio Laws, Part IV, 9447. Both bodies of juvenile law were

revised, and R.C. Chapter 2152 was enacted to exclusively address juvenile

delinquency. Cross at ¶11.

       {¶96} “Caldwell was also decided at a time when Ohio’s criminal sentencing

code retained the common-law preference for consecutive sentences. State v. Hodge,

128 Ohio St.3d 1, 2010-Ohio-6320, * * *, ¶26 (stating that ‘the common law prefer(red)

consecutive sentences over concurrent sentences’).         Comprehensive changes were

made to the sentencing code by 1995 Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV,

7136, effective July 1, 1996. For example, R.C. 2929.41(A) was amended to presume

that sentences would be served concurrently unless a court stated otherwise. Although




                                            28
R.C. 2929.41(A) was excised by State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, * * *,

the identical language of R.C. 2929.41(A) was reenacted in full by the legislature in

2011 Am.Sub.H.B. No. 86, effective September 30, 2011. Accordingly, a whole host of

direct and analogous presumptions that existed at the time of Caldwell are no longer

valid in the present day.

       {¶97} “Here, we are not facing the same lack of direction on the issue of

consecutive terms of confinement in the juvenile statutes as we were in Caldwell, and

we are also facing a very different juvenile statutory scheme from what existed at the

time of Caldwell. The General Assembly has now addressed the issue of consecutive

terms of confinement for a delinquent child by enacting R.C. 2152.17. Pursuant to R.C.

2152.17(E), if a child is adjudicated a delinquent for a felony and the child also

committed one of several enumerated specifications, the child’s term of confinement for

the specification must be served consecutively to the term of confinement for the

underlying delinquent act. And pursuant to R.C. 2152.17(G), the juvenile court may

impose consecutive terms of confinement if it adjudicates a child delinquent for multiple

felony offenses and commits the child to the legal custody of ODYS for each offense.

Neither of those circumstances applies here.

       {¶98} “The Ohio Legislature having dealt with the subject, and having made

certain provisions and certain exceptions thereto, it will be presumed that the

Legislature has exhausted the legislative intent, and that it has not intended the practice

to be extended further than the plain import of the statutes already enacted. The well-

known maxim, expressio unius est exclusio alterius, applies.      Madjorous v. State, 113

Ohio St. 427, 433, * * * (1925).




                                            29
         {¶99} “R.C. 2152.17 does not state that a juvenile court is permitted to order that

a term of confinement imposed from a revocation disposition be served consecutively to

a term of confinement from a new adjudication of delinquency. And this court has no

power to create additional juvenile court authority. The extension of authority to impose

consecutive confinement terms is a policy matter within the purview of the legislature.

In re M.W., 133 Ohio St.3d 309, 2012-Ohio-4538, * * *, ¶28 (Lanzinger, J., concurring).

Just as the General Assembly amended R.C. Chapter 2152 to allow for consecutive

confinement terms in certain circumstances, it could do so for the circumstances in this

case.”     (Parallel citations omitted.)   In re H.V., supra, ¶56-61 (O’Connor, C.J.,

dissenting.)

         {¶100} I agree with the chief justice that the General Assembly’s enactment of

R.C. 2152.17, specifically governing the circumstances under which delinquent children

may be subjected to consecutive terms of confinement, indicates the legislature’s intent

to limit consecutive terms to the situations enumerated. R.C. 2152.17 speaks to acts by

children which would be deemed felonies if committed by an adult, not to acts which

would be misdemeanors, as in this case. Both In re Caldwell and In re H.V. involved

acts which would have been felonies if committed by an adult. I would decline to apply

them to the instant case. Given the legislative intent embodied in R.C. 2152.17, I would

hold that a juvenile court, imposing detention pursuant to R.C. 2152.19(A)(3) on a multi-

count complaint(s) concerning acts which would be misdemeanors if committed by an

adult, must order the detentions be served concurrently.

         {¶101} Under this assignment of error, I would further find the counts in Case No.

13JD000467 were allied offenses of similar import, requiring merger (believing Case




                                             30
No. 13JD000421 should have been dismissed in its entirety by the trial court, I shall not

analyze it.) The first count in Case No. 13JD000467 alleged G.L.L. was delinquent due

to committing what would be misdemeanor assault on Mr. Cline by grabbing his hoodie;

the second count alleged this same conduct constituted the minor misdemeanor of

obstruction and interference affecting view and control of driver.

       {¶102} As the majority notes, in the lead case of In re Skeens, supra, the Tenth

District held the doctrine of merger does not apply in the juvenile setting, since charges

of delinquency does not constitute allegations of crime. Id. at *6-7. I further recognize

this court, like many other appellate courts, has followed Skeen.

       {¶103} However, in In re M.D. and B.D., 5th Dist. Knox No. 2011-CA-9, 2012-

Ohio-31, the Fifth District, without discussing whether merger applied in juvenile

proceedings, did a full-scale State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314

analysis, finding that the charges of what would be gross sexual imposition and

felonious assault if committed by an adult did not merge. In re M.D. and B.D. at ¶99-

117. In this case, G.L.L. is being subjected to detention, involving severe limitations on

his freedom. The dispositions are sufficiently similar to criminal penalties to call the

doctrine of merger into play. See, e.g., Caruso, supra, at *7.

       {¶104} In State v. Martin, 11th Dist. Lake No. 2012-L-043, 2013-Ohio-1944, ¶19-

32, we held:

       {¶105} “Our review of an allied offenses question is de novo. State v. Williams,

123 Ohio St.3d 482, 2012-Ohio-5699, ¶12, * * *. ‘R.C. 2941.25 “codifies the protections

of the Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution and Section 10, Article I of the Ohio Constitution, which prohibits multiple




                                            31
punishments for the same offense.” State v. Underwood, 124 Ohio St.3d 365, 2010-

Ohio-1 (* * *) ¶23, * * *. At the heart of R.C. 2941.25 is the judicial doctrine of merger;

merger is “the penal philosophy that a major crime often includes as inherent therein the

component elements of other crimes and that these component elements, in legal

effect, are merged in the major crime.” State v. Botta, 27 Ohio St.2d 196, 201, * * *

(1971).’ (Parallel citations omitted.) Williams at ¶13.

       {¶106} “R.C. 2941.25 states:

       {¶107} “‘(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be convicted of only one.

       {¶108} “‘(B) Where the defendant’s conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of the same or

similar kind committed separately or with a separate animus as to each, the indictment

or information may contain counts for all such offenses, and the defendant may be

convicted of all of them.’

       {¶109} “‘To ensure compliance with both R.C. 2941.25 and the Double Jeopardy

Clause, “a trial court is required to merge allied offenses of similar import at sentencing.

Thus, when the issue of allied offenses is before the court, the question is not whether a

particular sentence is justified, but whether the defendant may be sentenced upon all

the offenses.” Underwood at ¶27.’ Williams, supra, at ¶15.

       {¶110} “The method employed by courts in determining whether two crimes

constitute allied offenses of similar import has evolved. In State v. Rance, 85 Ohio

St.3d 632, 1999-Ohio-291, * * * (1999), the Supreme Court of Ohio held that ‘(u)nder an




                                             32
R.C. 2941.25(A) analysis, the statutorily defined elements of offenses that are claimed

to be of similar import are compared in the abstract.’ Id., paragraph one of the syllabus.

(Emphasis sic.) Since its release, Rance has gone through various modifications and

revisions. See State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, * * *; State v.

Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, * * *; State v. Winn, 121 Ohio St.3d 413,

2009-Ohio-1059, * * *.

       {¶111} “The Supreme Court of Ohio revisited the allied offenses analysis again in

2010 and overruled Rance in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, *

* *. Under the new analysis, which this court later relied upon and embraced in State v.

May, 11th Dist. No. 2010-L-131, 2011-Ohio-5233, ‘(w)hen determining whether two

offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the

conduct of the accused must be considered.’ Johnson, at the syllabus. The Johnson

court provided the new analysis as follows:

       {¶112} “‘In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), the question is whether it is possible to commit one offense and

commit the other with the same conduct, not whether it is possible to commit one

without committing the other. (* * *) If the offenses correspond to such a degree that the

conduct of the defendant constituting commission of one offense constitutes

commission of the other, then the offenses are of similar import.

       {¶113} “‘If the multiple offenses can be committed by the same conduct, then the

court must determine whether the offenses were committed by the same conduct, i.e.,

“a single act, committed with a single state of mind.” (* * *).




                                              33
       {¶114} “‘If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

       {¶115} “‘Conversely, if the court determines that the commission of one offense

will never result in the commission of the other, or if the offenses are committed

separately, or if the defendant has (a) separate animus for each offense, then,

according to R.C. 2941.25(B), the offenses will not merge.’ Id. at ¶48-51. (Citations

omitted.) (Emphasis sic.)

       {¶116} “This court went on to state in May, supra, at ¶50–51:

       {¶117} “‘“In departing from the former test, the court developed a new, more

context-based test for analyzing whether two offenses are allied thereby necessitating a

merger.    In doing so, the court focused upon the unambiguous language of R.C.

2941.25, requiring the allied-offense analysis to center upon the defendant’s conduct,

rather than the elements of the crimes which are charged as a result of the defendant’s

conduct.”’ (State v.) Miller (,11th Dist. No. 2009-P-0090, 2011-Ohio-1161,) at ¶47, citing

Johnson at ¶48-52.

       {¶118} “‘“The (Johnson) court acknowledged the results of the above analysis will

vary on a case-by-case basis. Hence, while two crimes in one case may merge, the

same crimes in another may not. Given the statutory language, however, this is not a

problem. The court observed that inconsistencies in outcome are both necessary and

permissible ‘(* * *) given that the statute instructs courts to examine a defendant’s

conduct – an inherently subjective determination.”’ Miller at ¶52, quoting Johnson at

¶52.’” (Parallel citations omitted.)




                                           34
      {¶119} Applying Johnson to the instant matter indicates the violations set forth on

both counts in Case No. 13JD000467 (misdemeanor assault and obstruction and

interference affecting view and control of driver), were of similar import. They are based

on the exact same conduct: G.L.L. pulling Mr. Cline’s hoodie and causing the car

accident. Further, the animus for both was the same: G.L.L.’s admitted desire to get out

of Tri-State and into a hospital.   Consequently, they were allied offenses of similar

import and should have merged.

      {¶120} For all the reasons foregoing, I respectfully dissent.




                                           35
