[Cite as In re E.B., 2018-Ohio-1683.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY




IN RE:
                                                            CASE NO. 2-17-21
        E.B.,

ADJUDICATED DELINQUENT CHILD                                OPINION




                 Appeal from Auglaize County Common Pleas Court
                                  Juvenile Division
                           Trial Court No. 2017 DEL 140

                                        Judgment Affirmed

                              Date of Decision: April 30, 2018




APPEARANCES:

        Rob C. Wiesenmayer, II for Appellant

        Nicholas A. Catania and Andrew J. Hinders for Appellee
Case No. 2-17-21


SHAW, J.

       {¶1} Appellant, E.B., appeals the October 2, 2017 judgment of the Auglaize

County Court of Common Pleas, Juvenile Division, committing her to the custody

of a juvenile detention center for a period of 30 days, with 20 days suspended, and

placing her on community control and intensive probation for an indefinite period

of time up to age 21, following her adjudication as a delinquent child for her conduct

comprising the offense of felonious assault, in violation of R.C. 2903.11(A)(1), a

felony of the second degree, if committed by an adult. On appeal, E.B. argues that

the Mercer County Juvenile Court’s adjudication of her as a delinquent child was

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

evidence. E.B. also claims that she received ineffective assistance from her trial

counsel.

                          Adjudication in Mercer County

       {¶2} On January 9, 2017, a complaint was filed in Mercer County Juvenile

Court was filed alleging E.B. to be a delinquent child based upon allegations that

she knowingly committed serious physical harm to the victim, L.M., also a minor,

by striking L.M. in the head causing her to suffer from a concussion, lacerations,

bruises and eye injuries. The complaint specified this allegation as Count One,

Felonious Assault, in violation of R.C. 2903.11(A)(1), a felony of the second

degree, if committed by an adult. The complaint also alleged under Count Two that


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E.B. did knowingly obtain or exert control over property of another, without the

consent of the owner or person authorized to give consent, with the property having

a value of less than a thousand dollars, constituting the offense of Theft, in violation

of R.C. 2913.02(A), a misdemeanor of the first degree, if committed by an adult.

The allegations in the complaint arose from an altercation between E.B. and L.M.

in a Walmart parking lot in Celina, Ohio on December 2, 2016.

       {¶3} On January 23, 2017, E.B. appeared in court with her parents, where

she was advised of her rights and the possible penalties and a denial was entered on

her behalf.

       {¶4} On April 18, 2017, E.B. filed a motion requesting the Mercer County

Juvenile Court to determine the admissibility of cell phone video, which purportedly

depicted the incident between E.B. and L.M. and was being proffered as evidence

by the prosecution. The Mercer County Juvenile Court subsequently held a hearing

on the matter and based upon the testimony presented, determined the video to be

authenticated pursuant to Evid.R. 901, and permitted it to be used as evidence during

the adjudicatory hearing. (See Doc. No. 1-HH).

       {¶5} On July 10, 2017, the matter proceeded to trial. Several witnesses

testified for both sides, including L.M.’s pediatrician who testified to the causes and

nature of her injuries, and the cell phone video was presented over E.B.’s objection.

At the conclusion of the evidence, the Mercer County Juvenile Court found beyond


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Case No. 2-17-21


a reasonable doubt E.B. to be a delinquent child on the grounds that she knowingly

caused serious physical harm to L.M., to wit-felonious assault, in violation of R.C.

2903.11(A)(1), a felony of the second degree, if committed by an adult. The trial

court did not find that the evidence supported a finding beyond a reasonable doubt

that E.B. committed theft of L.M.’s property and dismissed Count Two of the

complaint. The Mercer County Juvenile Court transferred the case to Auglaize

County, where E.B. was a resident, for disposition.

                          Disposition in Auglaize County

      {¶6} On September 28, 2017, E.B. appeared with her parents and legal

counsel before the Auglaize County Juvenile Court for disposition of the case. The

Auglaize County Juvenile Court heard closing arguments from each side and

reviewed a confidential file containing reports of E.B.’s conduct since the December

2, 2016 incident, which contained indicia of E.B.’s continued poor decision making

and lack of progress in academics at school.

      {¶7} As part of disposition, the Auglaize County Juvenile Court committed

E.B. to the legal custody of the Ohio Department of Youth Services (“DYS”) for

institutionalization for an indefinite term consisting of a minimum of one year and

a maximum period not to exceed her attainment of age 21. However, the Auglaize

County Juvenile Court suspended the DYS commitment, and instead committed her

to the custody of a juvenile detention center for a period of 30 days, with 20 days


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Case No. 2-17-21


suspended, and placed her on community control and intensive probation for an

indefinite period of time up to age 21, subject to numerous terms and conditions,

which were also explicitly set forth in the court’s October 2, 2017 judgment entry.

      {¶8} E.B. filed this appeal, asserting the following assignments of error.

                       ASSIGNMENT OF ERROR NO. 1

      THE TRIAL COURT ERRED IN ADJUDICATING THE
      MINOR CHILD DELINQUENT AS THERE WAS NOT A
      SUFFICIENT AMOUNT OF EVIDENCE FOR THE TRIAL
      COURT TO FIND THAT THE STATE HAD ESTABLISHED
      ALL THE ELEMENTS OF R.C. § 2903.11(A)(1) BEYOND A
      REASONABLE DOUBT.

                       ASSIGNMENT OF ERROR NO. 2

      THE TRIAL COURT’S DECISION ADJUDICATING THE
      MINOR CHILD DELINQUENT WAS AGAINST THE
      MANIFEST WEIGHT OF THE EVIDENCE.

                       ASSIGNMENT OF ERROR NO. 3

      THE ATTORNEY APPOINTED TO REPRESENT THE
      MINOR CHILD IN THIS CASE DID NOT PROVIDE
      EFFECTIVE ASSISTANCE OF COUNSEL.

      {¶9} For ease of discussion, we elect to address the first and second

assignments of error together.

                      First and Second Assignments of Error

      {¶10} In her first and second assignments of error, E.B. challenges the

Mercer County Juvenile Court’s adjudication of her as a delinquent child.



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Specifically, E.B. claims that the trial court’s adjudication was not support by

sufficient evidence and was otherwise against the manifest weight of the evidence.1

                                         Standard of Review

         {¶11} The standard of review employed by this Court in determining

whether a juvenile’s adjudication as a delinquent child was supported by sufficient

evidence is the same as the standard used in adult criminal cases. In re Washington,

81 Ohio St.3d 337, 339 (1998); In re B.T.B., 12th Dist. Butler No. CA2014-10-199,

2015-Ohio-2729, ¶ 16. The relevant inquiry in reviewing a claim of insufficient

evidence is whether “ ‘after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.’ ” State v. McKnight, 107 Ohio St.3d 101,

2005-Ohio-6046, ¶ 70, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus. In other words, sufficiency of evidence is a “legal standard that

tests whether the evidence introduced at trial is legally sufficient to support a

verdict.” In re D.M., 10th Dist. Franklin No. 15AP-763, 2016-Ohio-3270, ¶ 29,

citing State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52 (1997).

         {¶12} Just as with the sufficiency of the evidence standard of review, the

standard of review employed by this Court in determining whether a juvenile’s



1
  Due to the fact that all of the assignments of error raise issues regarding the adjudication of E.B. as a
delinquent child by the Mercer County Juvenile Court, we will refer to that court as the “trial court” in the
analysis portion of the opinion.

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Case No. 2-17-21


adjudication as a delinquent child was against the manifest weight of the evidence

is the same standard used in adult criminal cases. State v. A.N.C., 12th Dist. Warren

No. CA2017-02-012, 2018-Ohio-362, ¶ 9. While “sufficiency of the evidence is a

test of adequacy regarding whether the evidence is legally sufficient to support the

verdict as a matter of law, the criminal manifest weight of the evidence standard

addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d

382, 2007-Ohio-2202, ¶ 25. See also Thompkins at 387 (“Although a court of

appeals may determine that a judgment of a trial court is sustained by sufficient

evidence, that court may nevertheless conclude that the judgment is against the

weight of the evidence.”). An appellate court must review the entire record,

weighing the evidence and all reasonable inferences, consider the credibility of

witnesses, and determine whether, in resolving conflicts in the evidence, the trier of

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

conviction must be reversed and a new trial ordered. Id., citing State v. Martin, 20

Ohio App.3d 172, 175 (1st Dist.1983).

                                      Analysis

       {¶13} In the case sub judice, E.B. was adjudicated a delinquent child by

reason of violating R.C. 2903.11(A)(1), which states as follows: “No person shall

knowingly * * * [c]ause serious physical harm to another * * * .” The majority of

the evidence presented at the adjudicatory hearing consisted of testimony from E.B.,


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L.M., and several bystanders, as well as a cell phone video which recorded the

incident. This evidence established that several teenagers were present at Walmart

at approximately 10:30 p.m. on December 2, 2016, in Celina, Ohio, after a high

school basketball game between Celina and St. Marys. L.M. was accompanied by

B.S. who drove them to the store. E.B. was also present at the store with her then-

boyfriend, E.G., and at least two other teenagers, L.N. and J.S.

       {¶14} Even though the teenagers’ testimonies varied to a degree regarding

each individual’s accountability giving rise to the altercation between E.B. and

L.M., the facts distilled from the evidence indicated that L.M. and/or B.S. had

exchanged words with E.B. over L.M.’s cell phone immediately prior to the incident

occurring. B.S. and L.M. had at that point already left the store and were travelling

to another location, when B.S. drove back to the store’s parking lot to engage E.B.

       {¶15} The cell phone video clearly depicts the subsequent episode in the

Walmart parking lot, which shows E.B. standing next to the opened passenger side

door of B.S.’s vehicle where L.M. is seated in the passenger seat. While being

encouraged by the other teenagers standing around the vehicle, and aware of the

incident being recorded, E.B. repeatedly tells L.M. to get out of the car. At one

point, E.B. informs L.M. “if I have to pull you out, it’s going to be worse. Like,

you’re going to be on the ground and give me an advantage.” (State’s Ex. C at

0:00:12). Despite L.M. remaining in the vehicle and telling E.B. to leave her alone,


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Case No. 2-17-21


E.B. continues to taunt L.M. by leaning down closer to where L.M. is sitting in the

vehicle and telling her to “hit my face, please.” (Id. at 0:01:30). The interaction

escalates when E.B. leans into the vehicle inches away from L.M. as the bystanders

continue to jeer. It appears from the video that L.M. puts her hand up in an attempt

to push E.B. away and E.B. grabs L.M. The two become entangled in a physical

struggle while L.M. remains seated in the vehicle. At that point, the video abruptly

ends.

                        Sufficiency: Serious Physical Harm

        {¶16} On appeal, E.B. maintains that the trial court’s adjudication of her as

a delinquent child by reason of committing felonious assault was erroneous because

the prosecution failed to present sufficient evidence establishing that E.B. caused

serious physical harm to L.M. Section 2901.01(A)(5) of the Revised Code defines

“serious physical harm to persons” to mean any of the following:

        (a) Any mental illness or condition of such gravity as would
        normally require hospitalization or prolonged psychiatric
        treatment;

        (b) Any physical harm that carries a substantial risk of death;

        (c) Any physical harm that involves some permanent incapacity,
        whether partial or total, or that involves some temporary,
        substantial incapacity;

        (d) Any physical harm that involves some permanent
        disfigurement or that involves some temporary, serious
        disfigurement;


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        (e) Any physical harm that involves acute pain of such duration
        as to result in substantial suffering or that involves any degree of
        prolonged or intractable pain.

R.C. 2901.01(A)(5).

        {¶17} At the adjudicatory hearing, L.M. testified to her physical interaction

with E.B. in B.S.’s vehicle. L.M. recalled putting her hand up to protect her face

from E.B. because the bystanders were telling E.B. to drag L.M. out of the car and

hit her. L.M. recalled at that point E.B. began to strike her and tried to remove her

from the car. L.M. described E.B. punching her and kneeing her in the head and

pulling her hair during the altercation. L.M. recalled E.B. pulling L.M.’s glasses

off of her face and throwing them over the adjacently parked cars. L.M. explained

that she propped her feet against the door so that E.B. could not remove her from

the vehicle and then B.S. drove away with the door open.

        {¶18} L.M. admitted that she refused medical treatment at the scene,

however, she explained that she visited the emergency room hours later, on the

morning of December 3, 2016, with complaints of severe headaches and eye pain.2

She returned to the emergency room on December 5, 2016, when her symptoms did

not improve. L.M. recalled that she was given medication for her headaches and

was referred to her pediatrician, Dr. Aganon.



2
 Notably, Officer Tyler Meyers of the City of Celina Police Department, who responded to the incident,
confirmed that L.M. appeared to have minor injuries and refused medical treatment at the scene, but
nevertheless complained that her head hurt and later visited the emergency room.

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      {¶19} Dr. Efron Aganon also testified for the prosecution at the adjudicatory

hearing. He recalled seeing L.M. on December 7, 2016, for severe headaches and

eye pain. At that time, L.M. informed him that she had been punched and kneed in

the head by another person on December 2, 2016. Dr. Aganon also reviewed the

records from the emergency room, which mentioned head trauma, to assist him with

diagnosing L.M. with having a concussion. He explained that he performed a Sport

Concussion Assessment Test, or SCAT scan, and that L.M. had presented thirteen

of the twenty-two symptoms.

      {¶20} Dr. Aganon referred L.M. to an Ophthalmologist due to her complaints

of pain in the periorbital region and to a Neurologist for the concussion. L.M.

attended a concussion clinic eleven days after the incident and continued to report

experiencing a great deal of pain. He recalled that L.M.’s symptoms worsened after

testing was done. Dr. Aganon opined that L.M. suffered from some temporary

substantial incapacity as a result of the concussion. (Doc. No. 38-C at 74). He

explained that, with a concussion, symptoms can be exacerbated by activity, either

physical or mental, and that the remedy is to allow the brain to rest. Therefore, he

advised L.M. not to go to school and to refrain from movies, texting, reading,

homework, and television, until she was re-evaluated.

      {¶21} L.M. recalled missing two weeks of school and work immediately

after the incident with E.B. She saw an eye specialist who gave her eye drops for


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inflammation and swelling behind her eyes. L.M.’s testimony in this regard was

corroborated by Dr. Aganon who stated that L.M. was diagnosed with traumatic

iritis by the Ophthalmologist. L.M. stated that she continues to experience light

sensitivity and headaches and has intermittent vision problems, all of which she did

not have before the altercation with E.B.

       {¶22} The prosecution’s evidence demonstrated that L.M. suffered from

prolonged periorbital pain and headaches, as well as a concussion, which involved

L.M. having “some temporary, substantial incapacity.” See R.C. 2901.01(A)(5);

(Dr. Agnon’s testimony, Doc. No. 38-C at 74). Many appellate districts, including

this one, have found a concussion satisfies the serious physical harm threshold.

State v. Long, 11th Dist. Lake No. 2013-L-102, 2014-Ohio-4416, ¶ 57; State v.

Burks, 3d Dist. Seneca No. 13-05-36, 2006-Ohio-2142, ¶ 7, 22; State v. Davis, 8th

Dist. Cuyahoga No. 81170, 2002-Ohio-7068, ¶ 22-23. Moreover, “when a victim’s

injuries are serious enough to cause the victim to seek medical treatment, it may be

reasonably inferred that the force exerted on the victim caused serious physical

harm.” State v. Melendez, 8th Dist. Cuyahoga No. 97175, 2012-Ohio-2385, ¶ 14.

       {¶23} After reviewing the trial transcript and the evidence presented therein,

we believe that the evidence of “serious physical harm” was established in the

prosecution’s case-in-chief such that reasonable minds could reach the conclusion




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that sufficient evidence had been offered as to each material element of the crime.

Therefore, E.B.’s first assignment of error is overruled.

                                            Manifest Weight

         {¶24} Turning to her second assignment of error, E.B. claims that the trial

court’s adjudication of her as a delinquent child for felonious assault was against

the manifest weight of the evidence. Notably, E.B. does not raise any particular

argument under this assignment of error, nor does she specifically cite to any portion

of the record to support this position on appeal. Rather, E.B. summarily argues that

her adjudication was against the manifest weight of the evidence. 3

         {¶25} However, in reviewing the cross-examination of the prosecution’s

witnesses by E.B.’s trial counsel and the evidence presented in her defense at the

adjudicatory hearing, we can surmise that E.B. disputed she initiated the altercation

with L.M., due to the fact that some of the defense witnesses testified to an

acrimonious history between L.M. and E.B., which included harsh words exchanged

over the phone immediately prior to the incident.                           E.B. also challenged the

allegation that she caused L.M. serious physical harm, based on the fact that the cell


3
 Pursuant to App.R. 12(A)(2) this Court “may disregard an assignment of error presented for review if the
party raising it fails to identify in the record the error on which the assignment of error is based or fails to
argue the assignment separately in the brief, as required under App.R. 16(A).” App.R. 12(A)(2). “The
purpose behind the rule is to require the appellant to specifically identify the error the appellant claims
occurred and the portion of the record that supports the claim of error. Courts of appeals ‘cannot and will
not search the record in order to make arguments on appellant[’s] behalf.’ ” Cook v. Wilson, 10 Dist. Franklin
No. 05AP-699, 165 Ohio App.3d 202, 2006-Ohio-234, citing Helman v. EPL Prolong, Inc., 139 Ohio App.3d
231, 240 (7th Dist.2000). Nevertheless, in the interest of justice, we will address E.B.’s second assignment
of error.

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Case No. 2-17-21


phone video did not clearly show E.B. using her knee to strike L.M. in the head, or

any other contact with L.M., which E.B.’s contends, could cause serious physical

harm. E.B. also calls into question L.M.’s credibility with respect to the recitation

of her injuries and how they occurred at trial.

       {¶26} Notwithstanding E.B.’s arguments, the trial court apparently accepted

L.M.’s testimony which, if believed, demonstrated that E.B. knowingly struck her

in the head and resulted in her suffering prolonged eye pain, headaches, and a

concussion, all of which caused and/or continues to cause L.M “some temporary,

substantial incapacity.” See R.C. 2901.01(A)(5). As previously discussed, L.M.’s

testimony with respect to the legitimacy of her injuries was corroborated by the

testimony of Dr. Aganon. As for the nature of the incident between E.B. and L.M.,

the trial court found the cell phone video as well as testimony from L.M. and some

of the bystanders credible, which indicated that L.M. did not want to engage E.B.,

but that E.B. nevertheless pursued and initiated a physical encounter with L.M.,

albeit at the behest of some of the other teenagers present.

       {¶27} Specifically, the trial court stated the following when it announced its

ruling and addressed E.B.:

       [T]he court was disgusted at the friends who were surrounding
       the car, and egging [E.B.] on. And at times due to the laughter
       and to some of statements, I got the distinct impression that at the
       time there was a little playing to the camera and to the friends.



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       Had you been scared, you could have called for help, you could
       have called your parents, you could have called a police officer
       instead of going to a car and issuing challenge after challenge.

       You have a duty if someone is trying not to fight you, to move back
       and you didn’t. Your anger at [L.M.], or whatever was causing
       it, you didn’t seem to be irrational, or emotionally angry, was
       more wanting to settle the score, and the fact that when you did
       that, that [L.M.] was injured.

(Doc. No. 38-C at 131-32).

       {¶28} In sum, the trial judge was free to weigh the evidence E.B. presented

bearing on these issues, and to the extent it was not convincing, the trial court could

assign the weight it deemed appropriate. After reviewing the record, we cannot

conclude that the trier of fact lost its way and committed a manifest miscarriage of

justice in adjudicating E.B. a delinquent child by reason of committing felonious

assault. Accordingly, the second assignment of error is overruled.

                             Third Assignment of Error

       {¶29} In her third assignment of error, E.B. claims that she received

ineffective assistance of trial counsel because counsel failed: (1) to object to “the

testimony of [L.M.’s] father” because “he was present in the courtroom and not

separated from the proceedings;” (2) to object to L.M.’s testimony regarding how

the cell phone video was received as “speculation;” and (3) to object to Dr.

Aganon’s testimony because there was no request for him to be deemed an expert

by the court.


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                                 Standard of Review

       {¶30} To establish an ineffective assistance of counsel claim, E.B. must

show that her trial counsel’s performance was deficient and that counsel’s

performance prejudiced her. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981,

¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to

make either showing defeats a claim of ineffective assistance of counsel. State v.

Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697 (“[T]here is no

reason for a court deciding an ineffective assistance claim to approach the inquiry

in the same order or even to address both components of the inquiry if the defendant

makes an insufficient showing on one.”).

       {¶31} At the outset, we note that “ ‘the failure to object to error, alone, is not

enough to sustain a claim of ineffective assistance of counsel.’ ” State v. Fears, 86

Ohio St.3d 329, 347 (1999), quoting State v. Holloway, 38 Ohio St.3d 239, 244

(1988). A defendant must also show that he was materially prejudiced by the failure

to object. Holloway at 244; State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶

233. Additionally, tactical decisions, such as whether and when to object, ordinarily

do not give rise to a claim for ineffective assistance. State v. Johnson, 112 Ohio

St.3d 210, 2006-Ohio-6404, ¶¶ 139-40.

       {¶32} Moreover, despite E.B.’s summary assertions on appeal, the record

reflects that, in addition to maintaining a physician-patient relationship with L.M.


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prior to the altercation with E.B. and personally examining L.M. after the incident

occurred, Dr. Agnon testified to the accepted practice of the methodology he used

to diagnose L.M. with a concussion. He also testified to his career as a primary care

physician specializing in pediatrics, which spanned decades and his Curriculum

Vitae was admitted as exhibit.

       {¶33} With respect to L.M.’s testimony regarding the delivery of the cell

phone video from a friend, the record demonstrates that E.B.’s trial counsel filed a

motion to determine the admissibility of the cell phone video, which resulted in a

pre-trial hearing, where the trial court heard extensive testimony as to the origin and

chain of custody of the video and ultimately determined the video to be admissible,

thereby casting doubt on the success of an objection based upon “speculation” to

L.M.’s testimony regarding the method of delivery of the video. Notably, E.B.’s

counsel renewed his objection to the admissibility of the video at the adjudication,

which was overruled by the trial court.

       {¶34} Finally, there is no indication in the record that that L.M.’s father

testified, therefore E.B.’s complaint on appeal regarding a lack of separation of

witnesses appears to be unsubstantiated. Rather, the record suggests that E.B.’s

father was present during the course of the proceedings, despite providing testimony

in her defense.




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       {¶35} Even assuming arguendo that the complained of issues on appeal were

error, E.B. has not shown how the result of her adjudication would have been

different. “We indulge in the usual presumption that in a bench trial in a criminal

case the court considered only the relevant, material, and competent evidence in

arriving at its judgment unless it affirmatively appears to the contrary.” State v.

White, 15 Ohio St.2d 146, 151 (1968). In other words, E.B. has not shown that the

trial court relied on anything other than relevant, material, and competent evidence

in reaching its adjudication determination. Accordingly, the third assignment of

error is overruled.

       {¶36} Based on the foregoing, the assignments of error are overruled and the

judgment is affirmed.

                                                              Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

/jlr




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