[Cite as In re C.P., 2012-Ohio-5453.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
IN RE: CORY P.                                :   Patricia A. Delaney, P.J.
                                              :   John W. Wise, J.
                                              :   Julie A. Edwards, J.
                                              :
                                              :   Case No. 2012 AP 02 0016
                                              :
                                              :
                                              :   OPINION




CHARACTER OF PROCEEDING:                           Appeal from Tuscarawas County
                                                   Court of Common Pleas, Juvenile
                                                   Division, Case No.
                                                   11JD00370

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            November 14, 2012

APPEARANCES:

For State of Ohio                                  For Cory P.

RYAN STYER                                         CHARLYN BOHLAND
Tuscarawas County Prosecutor                       Assistant State Public Defender
Tuscarawas County Prosecutor’s Office              250 East Broad Street, Suite 1400
125 East High Avenue                               Columbus, Ohio 43215
New Philadelphia, Ohio 44663
[Cite as In re C.P., 2012-Ohio-5453.]


Edwards, J.

        {¶1}     Appellant, Cory P., appeals from the January 18, 2012, Judgment Entry of

the Tuscarawas County Court of Common Pleas, Juvenile Division.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     On July 19, 2011, a complaint was filed in the Tuscarawas County Court

of Common Pleas, Juvenile Division, alleging that appellant was a delinquent child by

virtue of having committed four counts of theft in violation of R.C. 2913.02(A)(1),

felonies of the fourth degree if committed by an adult, and one count of receiving stolen

property in violation of R.C. 2913.51(A), a felony of the fourth degree if committed by an

adult. At his arraignment on August 16, 2011, appellant denied the charges.

        {¶3}     Pursuant to a Judgment Entry filed on October 18, 2011, one count of

theft was dismissed upon appellee’s motion.

        {¶4}     On December 8, 2011, appellant filed a notice indicating that he intended

to introduce at trial printouts of “Facebook” conversations between himself and “a

participant in the delinquent acts child is alleged to have committed.”

        {¶5}     Subsequently, a bench trial commenced on December 15, 2011. At trial,

Clyde Swanson testified that, on June 30, 2011, his son’s XR100 red and white Honda

dirt bike was stolen sometime after midnight from his detached garage. The bike was

titled in Swanson’s name, and he testified that he had paid $1,200.00 for the bike

approximately two years earlier. According to Swanson, the bike was recovered a week

or two later in “beat up” condition. Transcript at 23. Swanson testified that the bike was

found close to appellant’s house. Swanson testified that appellant, a couple of years

earlier, used to hang out with his son and stayed overnight at his house and that
Tuscarawas County App. Case No. 2012 AP 02 0016                                       3


appellant “wasn’t right so I told my son to stay away from him.” Transcript at 24. When

asked if appellant had ever been in Swanson’s garage, Swanson testified that he

“imagine[d]” that he had been and that appellant knew about the bike. Transcript at 25.

On cross-examination, Swanson admitted that he did not see who stole the dirt bike.

      {¶6}   The next witness to testify was Michael Tomer. Tomer testified that he had

a yellow Suzuki JR80 dirt bike that he purchased in 1998 or 1999 for $600.00. He

testified that when he came home from vacation in July of 2011, the bike was gone from

his detached garage. The back plexiglass window had been pushed out of the garage

and his tool box, which had been in front of the window, had been moved out of the

way. The following testimony was adduced after Tomer was asked to explain how the

bike was recovered:

      {¶7}   “A. Um, I’d seen [appellant] and [J.C]…

      {¶8}   “Q. Now when you say [appellant], who do you mean?

      {¶9}   “A. [Appellant].

      {¶10} “Q. Okay, and [J.C], you mean [J.C]?

      {¶11} “A. Yes.

      {¶12} “Q. Okay.

      {¶13} “A. I’d seen them walking up by the school and…

      {¶14} “Q. By Bolivar Elementary School?

      {¶15} “A. Correct, and I, uh, drove up through there and confronted them and

after a couple of minutes of confrontation they, uh, [appellant] said he’d text somebody

that knew where the bike was and that he could show me where it was so we went out
Tuscarawas County App. Case No. 2012 AP 02 0016                                        4


the road and they showed me right where it was and I put it on the jeep and brought it

back home.

       {¶16} “Q. Okay, and, um, did you have any reason to believe that [appellant]

knew where your bike was?

       {¶17} “A. I didn’t know if he knew but I, from all the stuff I heard going around

that I, uh, knew if he didn’t know that himself that he knew somebody that would know

was involved so...

       {¶18} “Q. And he appeared to text someone?

       {¶19} “A. Yes, he was texting quite a bit when I was talking to, mainly I was

talking to [J.C] and [appellant] was texting.

       {¶20} “Q. Okay, and [J.C.] was with [appellant]?

       {¶21} “A. Correct.

       {¶22} “Q. So if [appellant] needed to know from [J.C.] there was no reason to

text him?

       {¶23} “A. Correct.

       {¶24} “Q. Okay. Did [appellant] tell you who it was he was texting?

       {¶25} “A. No.

       {¶26} “Q. Okay, no name?

       {¶27} “A. No.” Transcript at 38-39.

       {¶28} Tomer testified that the bike, which was recovered from a ditch outside of

town, had scratches from road rash and that the throttle was broken. He further testified

that he did not know appellant, but had seen him walking by.
Tuscarawas County App. Case No. 2012 AP 02 0016                                           5


       {¶29} Chief Randy Haugh of the Village of Bolivar and Zoar testified that there

was a rash of thefts and burglaries during the summer of 2011, and that specific items

were targeted. Chief Haugh testified that after Swanson contacted him because

Swanson believed that he had seen his missing dirt bike at appellant’s house, he

contacted Sergeant Eric Houze of the Tuscarawas County Sheriff’s Office to see if a

stolen dirt bike report had been filed. When he drove by appellant’s residence, Chief

Haugh observed a red dirt bike in the garage. He then contacted Sergeant Houze again

to relay such information. When asked, the Chief indicated that he had not seen that

particular dirt bike in appellant’s garage before because he had never paid attention.

       {¶30} Chief Haugh testified that he conducted an investigation after Tomer

reported his dirt bike stolen. He testified that he was patrolling on the evening of July 5,

2011 at around midnight near the Bolivar Intermediate School when he saw two

shadows on the playground equipment at 12:30 p.m. Chief Haugh then parked his

cruiser and crawled over to where appellant and J.C. were talking. He testified that he

saw appellant and J.C. get into Tomer’s Jeep. Chief Haugh later caught up with Deputy

Ryan Hamilton, appellant and J.C. at Tomer’s residence. At the time, a yellow dirt bike

was strapped to the hood of Tomer’s Jeep. Chief Haugh testified that he knew appellant

by sight, although he did not know appellant’s name, and that appellant had a lot of

fresh road rash on his hands, arms, face and nose.

       {¶31} Chief Haugh further testified that he took appellant home and that

appellant’s mother gave him permission to interview appellant. During the interview,

appellant told the Chief that he did not take the items, but that he was with J.C. when

the items were taken. Appellant specifically referred to the Swanson theft and said, with
Tuscarawas County App. Case No. 2012 AP 02 0016                                       6


respect to the Tomer theft, that he had helped J.C. get through the window. Chief

Haugh testified that appellant confessed. In a written statement provided to the Chief

days later, appellant retreated from his original confession. According to Chief Haugh,

appellant’s written statement reduced his culpability.

       {¶32} On cross-examination, Chief Haugh indicated that he did not know if a

stolen dirt bike was ever recovered from appellant’s garage because he turned the

matter over to Sergeant Houze. When asked if there was physical evidence linking

appellant to any crime, Chief Haugh cited to appellant’s wounds and the blood on

Tomer’s dirt bike. However, he admitted that the blood was never tested and admitted

that there was no physical evidence linking appellant to any crime. He further testified

that, during the investigation, a witness came forward and indicated that he or she had

seen a young male with a Mohawk riding one of the stolen dirt bikes. Chief Haugh did

not know if appellant ever sported a Mohawk, but indicated that he knew that J.C. used

to wear one. He further testified that he had not received statements from any witnesses

who saw appellant riding a stolen dirt bike.

       {¶33} On redirect, Chief Haugh testified that there was blood on the side of the

tank of the Tomer yellow dirt bike when it was recovered on July 5, 2011. Chief Haugh

testified that appellant had wounds that looked like they had been bleeding while J.C.

appeared to be free of injury.

       {¶34} Deputy Ryan Hamilton of the Tuscarawas County Sheriff’s Office testified

that he assisted Chief Haugh in an investigation that began after dark on July 5, 2011.

Deputy Hamilton testified that after Tomer left with appellant and J.C. in his Jeep, he

went to the Tomer residence.       Deputy Hamilton testified that appellant had “many
Tuscarawas County App. Case No. 2012 AP 02 0016                                             7


physical injuries” on his body and that his left arm was bandaged from the elbow to the

wrist. Transcript at 98. Appellant appeared to have road rash on his hand, arm and face

while J.C. did not. According to Deputy Hamilton, J.C., during an interview, implicated

appellant in the thefts.

          {¶35} On cross-examination, Deputy Hamilton testified that there was no

physical evidence linking appellant to any crime. He further admitted that J.C. was not

entirely truthful during his interview and that he yelled at J.C. to stop lying. The following

is an excerpt from Deputy Hamilton’s testimony on redirect:

          {¶36} “Q. Um, in regards to [J.C.], uh, interview. Attorney Brechbill asked you if

he [J.C.] lied and you said in the beginning. Can you elaborate on that please, without

telling us what he said?

          {¶37} “A. Right, uh, I just remember he backtracked a couple different times in

the beginning. In the end he copped to saying, yes, I took the truck,1 this is what I did,

these are things I did, which led me and Chief Haugh to believe that, towards the end

he started telling the truth because he was copping to what he allegedly did.

          {¶38} “Q. At the end of the interview were you confident in certain things that

[J.C] had told you?

          {¶39} “A. Yes.

          {¶40} “Q. Okay, now in the end [J.C.] provided you confessions?

          {¶41} “A. Correct.

          {¶42} “Q. Okay, and in the grand scheme of things these were not, it was not

difficult to get those confessions?

          {¶43} “A. No.
1
    The charge of theft of a motor vehicle was later dismissed by the trial court.
Tuscarawas County App. Case No. 2012 AP 02 0016                                         8


       {¶44} “Q. Okay. Did [appellant] ever offer to be interviewed by you?

       {¶45} “A. No.

       {¶46} “Q. Okay, did he ever offer to cooperate?

       {¶47} “A. No.” Transcript at 106-107.

       {¶48} Sergeant Eric Houze testified that he took the report of Swanson’s stolen

bike and that the red bike at appellant’s home was not Swanson’s bike. According to the

Sergeant, Swanson’s bike was eventually recovered at another location.

       {¶49} At trial, J.C. admitted that he recently had been convicted of three counts

of breaking and entering and three counts of theft and had been sentenced. He testified

that he was not testifying as part of any plea bargain and had nothing to gain by

testifying.

       {¶50} J.C. testified that they both stole on more than one night. He testified that

appellant, with respect to the Tomer dirt bike, indicated that he knew where a dirt bike

was and mentioned the Tomer residence. J.C. testified that when appellant approached

the Tomer residence, J.C stayed in the alley and watched appellant break into the

garage at about 1:00 a.m.      According to J.C., appellant pried open the plexiglass

window and crawled inside the garage and took the dirt bike. He further testified that

appellant then walked the bike down the road and then took off on Tomer’s dirt bike

while J.C. rode appellant’s dirt bike, which was red. At the time, J.C. had a Mohawk.

J.C. also testified that the two dirt bikes crashed into each other and that appellant had

road rash on his face and hands and perhaps leg and sprained or broken fingers.

Appellant, according to J.C., then ditched the Tomer bike. A few days later, Tomer

confronted J.C. and appellant wanting to know where the bike was. J.C. testified that he
Tuscarawas County App. Case No. 2012 AP 02 0016                                            9


convinced appellant to tell Tomer where the bike was and that they both guided Tomer

to the bike. When asked, J.C. admitted telling Tomer that they both had stolen his bike

and testified that appellant told Tomer that Dylan Dunlap had taken the bike and that he

was going to call Dunlap and find out where the bike was. J.C. testified that appellant

was texting Dunlap.

       {¶51} J.C. also testified that appellant indicated that he knew of a dirt bike that

they could steal and said that the bike belonged to Cody Swanson, who is Clyde

Swanson’s’ son. J.C. testified that he refused to go to Swanson’s property because he

knew Cody and that he waited at the city ball field while appellant went to the Swanson

residence and stole the dirt bike. According to J.C., appellant then rode around on the

bike for a few minutes and then got off the bike and said that they should look at a red

Ford F150 pick-up truck that was visible from the field. The keys were in the truck. J.C.

testified that appellant insisted that they should take the truck, but that he initially told

appellant no. After appellant then got into the truck and started it, J.C. got into the truck

and followed appellant as he rode Swanson’s dirt bike. J.C. admitted that they had

stolen the dirt bike and stolen the truck. After ditching the truck, the two both rode the

dirt bike.

       {¶52} On cross-examination, J.C. admitted that he had pleaded guilty to

breaking and entering and stealing with respect to the Swanson dirt bike and breaking

and entering and stealing with respect to the Tomer dirt bike, although he testified that “I

did not taken any action, but I was with [appellant].” Transcript at 150. On redirect, J.C.

also admitted that, during his interview by Deputy Hamilton, he did not start out telling

the truth because he was scared and that by the end of the interview, he was telling the
Tuscarawas County App. Case No. 2012 AP 02 0016                                        10


truth.   He further admitted having Facebook conversations with appellant about the

crimes, but testified that he had deleted the messages after his mother told him to do

so.

         {¶53} At trial, appellant’s mother testified, over objection, that she assisted

appellant in preparing exhibits for trial. She testified that she printed out Facebook

messages for appellant. She testified that she was with appellant at the library when he

copied and pasted messages from Facebook onto a disc and that appellant did not

modify or change any of the information. She further testified that appellant never

confessed any crimes to Chief Haugh, but rather provided Haugh with the location of a

stolen item that J.C. had told appellant about.        Appellant’s grandmother testified

similarly as to the copying of the Facebook messages.

         {¶54} Appellant testified that he cooperated in the investigation of the stolen

Swanson dirt bike and that the red dirt bike in his garage was his bike. The VIN on the

red bike in his garage did not match the VIN on the stolen bike. Appellant further

testified that he did not know about the stolen Tomer dirt bike until confronted by Tomer

at the school. Appellant admitted telling Tomer where the stolen dirt bike was located,

but testified that J.C. had told him where the bike was located and had threatened to

hurt him if he told. According to appellant, J.C. carried a knife. Appellant denied any

involvement with the theft of the Tomer dirt bike or with the theft of the Swanson dirt

bike and denied telling Chief Haugh that he was with J.C. when the thefts took place.

He testified that J.C. told him where the stolen items were. Appellant also testified that

he never told police that J.C. had threatened him with a knife.
Tuscarawas County App. Case No. 2012 AP 02 0016                                         11


       {¶55} Appellant testified that he highlighted and copied Facebook messages,

loaded them onto a disc drive and then copied them at the library and that he did not

modify or change any of the information. Appellant testified that once he discovered that

he was allowed to use the messages at trial, he turned them over to his counsel. The

Facebook messages were admitted as Exhibits 4, 5 and 6. In the messages, J.C.

admitted to stealing the bikes and stated that he was going to blame appellant.

       {¶56} On cross-examination, appellant testified that he did not tell the officers,

who came to his house to look at his dirt bike, that J.C. had the Swanson’s bike,

because he did not know that J.C. had the bike at the time. While appellant, in his

written statement, had indicated that he knew that J.C. had the Swanson’s dirt bike,

appellant testified that his written statement to police was all false. Appellant further

denied telling Chief Haugh that he was with J.C. when J.C. stole the two bikes and

testified that Haugh must have misunderstood what he said. Appellant claimed that he

told Chief Haugh that he knew where the bike was.

       {¶57} On cross-examination, the State introduced State’s Exhibit A, fabricated

Facebook messages, without alerting appellant or his counsel that the messages were

fabricated.   In the messages, appellant admitted to stealing the items.          Appellant

identified Exhibit A as the Facebook messages that he had printed out and given to his

counsel and appellee had appellant read the fabricated confessions that he had stolen

the items. After appellant denied writing the messages, the Assistant Prosecuting

Attorney admitted that she had made up the Facebook messages during her lunch

break. She indicated that she had done so to show that it was “pretty obvious that you
Tuscarawas County App. Case No. 2012 AP 02 0016                                     12


can manipulate Facebook pages if you don’t print out the Facebook pages…” Transcript

at 239.

      {¶58} Pursuant to a Judgment Entry filed on January 5, 2012, the trial court

found that appellant was delinquent in violation of R.C. 2913.51(A) and 2913.02(A)(1).

The trial court specifically found that appellant had stolen the yellow dirt bike and

“clearly had the red bike in his possession, knowing it was stolen.” As memorialized in

a Judgment Entry filed on January 18, 2012, the trial court committed appellant to the

Department of Youth Services for a minimum of six months on each offense and a

maximum not to exceed appellant’s attainment of the age of twenty-one. The trial court

ordered that the commitments run consecutively to each other. The trial court also

ordered appellant to pay restitution in the amount of $120.98.

      {¶59} Appellant now raises the following assignments of error on appeal:

      {¶60} “I. THE STATE’S IMPROPER ACTIONS IN PRESENTING FALSE

FACEBOOK MESSAGES AS ‘STATE’S EXHIBIT A.’ AND MISLEADING CORY AND

HIS COUNSEL DEPRIVED CORY OF HIS RIGHT TO A FAIR TRIAL AS

GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION.

      {¶61} “II. THE JUVENILE COURT VIOLATED CORY’S RIGHT TO DUE

PROCESS WHEN IT ADJUDICATED HIM DELINQUENT OF THEFT AND RECEIVING

STOLEN PROPERTY WHEN THERE WAS NO PHYSICAL EVIDENCE LINKING

CORY TO THE OFFENSE, AND THE EVIDENCE WAS CONTRADICTORY AND

BASED ON THE TESTIMONY OF AN UNTRUTHFUL CO-DEFENDANT, IN
Tuscarawas County App. Case No. 2012 AP 02 0016                                        13


VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS TO THE U.S.

CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.

       {¶62} “III. THE JUVENILE COURT ERRED WHEN IT FAILED TO CONSIDER

COMMUNITY SERVICE IN LIEU OF FINANCIAL SANCTIONS BEFORE ORDERING

CORY TO PAY COURT COSTS AND FINES, IN VIOLATION OF R.C. 2152.20(D).

       {¶63} “IV. CORY WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL

AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO

CONSTITUTION.”

                                                I

       {¶64} Appellant, in his first assignment of error, argues that he was deprived of a

fair trial by the State’s improper actions in presenting false Facebook messages as

“State’s Exhibit A” and misleading appellant and his counsel.

       {¶65} As is stated above, at trial, appellant presented Facebook messages that

he asserted supported his claim that J.C. was lying about appellant’s involvement. The

Facebook messages were admitted as appellant’s Exhibits 4, 5 and 6. On cross-

examination, appellee showed appellant what was marked as State’s Exhibit A and

asked appellant if he recognized the same and appellant indicated that they were the

messages from Facebook that he had printed out and provided to his counsel. When

appellant’s counsel asked for clarification as to what exhibit appellee was referring to,

appellee was evasive. Subsequently, appellee stated that she had fabricated Exhibit A

during her lunch break in order to show that Facebook pages could be manipulated.

Appellant now argues that the prosecutor’s actions deprived him of a fair trial.
Tuscarawas County App. Case No. 2012 AP 02 0016                                          14


       {¶66} A prosecuting attorney's conduct during trial does not constitute grounds

for error unless the conduct deprives the defendant of a fair trial. State v. Keenan, 66

Ohio St.3d 402-405, 613 N.E.2d 203 (1993); State v. Treesh , 90 Ohio St.3d 460, 480-

481, 2001-Ohio-4, 739 N.E.2d 749. The touchstone of a due process analysis in cases

of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the

prosecutor. Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). The

effect of the prosecutor's misconduct must be considered in light of the whole trial. State

v. Durr, 58 Ohio St.3d 86, 94, 568 N.E.2d 674 (1991); State v. Maurer, 15 Ohio St.3d

239, 266, 473 N.E.2d 768 (1984).

       {¶67} Evid.R. 611(B) states that cross-examination shall be permitted on all

relevant matters and matters affecting credibility. “The limitation of * * * cross-

examination lies within the sound discretion of the trial court, viewed in relation to the

particular facts of the case. Such exercise of discretion will not be disturbed in the

absence of a clear showing of an abuse of discretion.” State v. Acre, 6 Ohio St.3d 140,

145, 451 N.E.2d 802 (1983). But “[i]t is improper for an attorney, under the pretext of

putting a question to a witness, to put before a jury information that is not supported by

the evidence.” State v. Smidi, 88 Ohio App.3d 177, 183, 623 N.E.2d 655 (6th

Dist.1993). And “[p]rosecutors must avoid insinuations and assertions calculated to

mislead.” State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990).           A cross-

examiner may ask a question if the examiner has a good faith belief that a factual

predicate for the question exists. State v. Gillard, 40 Ohio St.3d 226, 533 N.E.2d 272

(1988), paragraph two of the syllabus.      Moreover, a prosecutor may not knowingly

present false testimony to procure a verdict. McMullen v. McMullen, 3 Ohio St.2d 160,
Tuscarawas County App. Case No. 2012 AP 02 0016                                         15


165, 209 N.E.2d 449 (1965). When the State obtains a conviction by the knowing use

of false evidence, the defendant is entitled to a new trial “if there is any reasonable

likelihood that the false testimony could have affected the judgment of the jury.” United

States v. Argurs 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.E.2d 342 (1976).

      {¶68} We find that appellee acted improperly in misleading appellant and not

disclosing to appellant or his counsel that Exhibit A was a document that she had

fabricated during her lunch hour in order to cross-examine appellant. Appellee clearly

ambushed appellant and his counsel with the fabricated document and was not

immediately forthcoming about the nature of such exhibit.

      {¶69} However, we note that defense counsel never objected to appellee’s

conduct. “Absent plain error, an appellate court will not consider errors that the

defendant failed to object to at the trial level.” State v. Thompson, 127 Ohio App.3d 511,

522, 713 N.E.2d 456 (8th Dist. 1998). Crim.R. 52(B) provides that, “[p]lain errors or

defects affecting substantial rights may be noticed although they were not brought to the

attention of the court.” “Notice of plain error under Crim.R. 52(B) is to be taken with the

utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus. In order to find plain error under Crim R. 52(B), it must

be determined, but for the error, the outcome of the trial clearly would have been

otherwise. Id. at paragraph two of the syllabus.

      {¶70} Because the trial in this case was a bench trial, as opposed to a jury trial,

and based on the evidence, as set forth in the following assignment of error, we find that

appellant was not prejudiced. The trial court, as trier of fact, was aware that appellee
Tuscarawas County App. Case No. 2012 AP 02 0016                                           16


had fabricated the Facebook messages. We find that appellant was not prejudiced

because there was not a reasonable likelihood that the judgment was affected.

       {¶71} Appellant’s first assignment of error is, therefore, overruled.

                                             II

       {¶72} Appellant, in his second assignment of error, argues that the finding of

delinquency of theft (with respect to the yellow dirt bike) and receiving stolen property

(with respect to the red dirt bike) was against the manifest weight of the evidence.

       {¶73} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

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

1997–Ohio–52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist. 1983).

       {¶74} Appellant specifically argues that his co-defendant, J.C., was not credible

and that there was no physical evidence linking him to the crimes. Appellant notes that

J.C. admitted to the offenses in this case and was sentenced, but that, at trial, he placed

all of the blame on appellant. Appellant also notes that J.C. admitted that he initially lied

to police about his involvement and had to be cautioned against lying.

       {¶75} As is stated above, Michael Tomer testified at trial that when he

confronted appellant and J.C. about the yellow dirt bike, appellant said that he would

text someone who knew where the bike was and that he could show Tomer where the
Tuscarawas County App. Case No. 2012 AP 02 0016                                              17


bike was located. According to Tomer, appellant then took him to the bike. Tomer

further testified that appellant appeared to text someone and that because J.C. was

present when appellant was texting, there was no need to text J.C. if appellant needed

information from J.C. as to the location of the bike. The trial court, in its Judgment Entry,

found that “[n]o evidence exists to show that he [appellant] really texted anyone and the

entire attempt was a poor effort to reduce [appellant’s] culpability.” Moreover, while

appellant testified that J.C. threatened him with a knife if he told where the Tomer bike

was located, appellant never told the police of such threat.

       {¶76} In addition, Chief Haugh testified that appellant had a lot of road rash on

his hands, arms and face and that appellant admitted being present when the yellow dirt

bike was taken. Chief Haugh testified, with respect to the Tomer bike, that appellant

“said he helped [J.C.] get in through the window and that appellant had confessed.”

Transcript at 62. There was blood on the bike and appellant was covered with road

rash. According to the Chief, appellant indicated that he was part of the theft of the

Swanson dirt bike. However, in his written statement, appellant changed his story and

denied involvement.

       {¶77} While appellant contends that J.C. was not truthful about his involvement,

the record is clear that appellant was also less than truthful about his involvement.

Appellant testified that his written statement to police was completely false. The trial

court, as trier of fact, was in the best position to assess credibility. The trial court, in its

January 5, 2012, Judgment Entry, indicated that it did not find J.C.’s character to be

without question, but found that after he was already sentenced, J.C. began to tell the
Tuscarawas County App. Case No. 2012 AP 02 0016                                               18


truth about the incidents. J.C. himself testified that he had nothing to gain by testifying.

We find that the trial court, as trier of fact, was in the best position to assess credibility.

       {¶78} Based on the foregoing, we find that the finding of delinquency was not

against the manifest weight of the evidence.

       {¶79} Appellant’s second assignment of error is, therefore, overruled.

                                                   III

       {¶80} Appellant, in his third assignment of error, argues that the trial court erred

when it failed to consider community service in lieu of financial sanctions before

ordering appellant to pay court costs and fines, in violation of R.C. 2152.20(D).

       {¶81} Pursuant to R.C. 2152.20, if a child is adjudicated delinquent, the court

may order the child to pay the costs of the action. See R.C. 2152.20(A)(2). The statute

further states that prior to the imposition of costs, the “trial court may hold a hearing if

necessary to determine whether a child is able to pay a sanction under this section.”

(Emphasis added). R.C. 2152.20(C). Furthermore, if a child who is adjudicated a

delinquent child is indigent, the court shall consider imposing a term of community

service under division (A) of section 2152.19 of the Revised Code in lieu of imposing a

financial sanction. R.C. 2152.20(D).

       {¶82} Appellant argues that since he is indigent, the court should have

considered imposing a term of community service in lieu of costs. R.C. 2152.20(D)

provides: “If a child who is adjudicated a delinquent child is indigent, the court shall

consider imposing a term of community service * * * in lieu of imposing a financial

sanction under this section.” (Emphasis added.) In statutory construction, the word

“shall” is generally construed as mandatory. See Dorrian v. Scioto Conserv. Dist., 27
Tuscarawas County App. Case No. 2012 AP 02 0016                                          19


Ohio St.2d 102, 271 N.E .2d 834 (1971), paragraph one of the syllabus. The general

assembly's use of the word “shall” in R.C. 2152.20(D) indicates a mandatory

requirement, something the court must do. Accordingly, R.C. 2152.20(D) requires the

court to consider imposing a term of community service instead of a financial sanction if

the delinquent child is indigent. However, R.C. 2152.20(D) does not require the court to

impose a term of community service in lieu of a financial sanction; it simply indicates

that the court must consider it.

        {¶83} In the case sub judice, the trial court was aware of appellant's indigency.

The trial court had previously appointed counsel and appellant’s mother had filed an

affidavit of indigency on appellant’s behalf. There is nothing in the record to suggest that

the trial court failed to consider community control instead of a financial sanction. See

In re Davis, 5th Dist. No. 06CA163, 2007-Ohio-6994, ¶ 35. Furthermore, R.C. 2152.20

does not require the trial court to conduct a separate hearing to determine appellant's

ability to pay nor does the statute mandate community control sanctions for an indigent

juvenile. See In re Seavolt, 5th Dist. Nos. 2006-CA-0010, 2006-CA-0011, 2007-Ohio-

2812.

        {¶84} Appellant’s third assignment of error is, therefore, overruled.

                                                IV

        {¶85} Appellant, in his fourth assignment of error, argues that he was denied

effective assistance of trial counsel.

        {¶86} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio

adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
Tuscarawas County App. Case No. 2012 AP 02 0016                                         20


373 (1989). These cases require a two-pronged analysis in reviewing a claim for

ineffective assistance of counsel. First, we must determine whether counsel's

assistance was ineffective; i.e., whether counsel's performance fell below an objective

standard of reasonable representation and was violative of any of his essential duties to

the client. If we find ineffective assistance of counsel, we must then determine whether

or not the defense was actually prejudiced by counsel's ineffectiveness such that the

reliability of the outcome of the trial is suspect. This requires a showing that there is a

reasonable probability that but for counsel's unprofessional error, the outcome of the

trial would have been different. Id.

       {¶87} Appellant specifically contends that his trial counsel was ineffective in

failing to object to the prosecutor’s improper use of the fabricated Facebook messages

and in failing to object to imposition of court costs and restitution without first

considering community service.

       {¶88} Based on our disposition of appellant’s first and third assignments of error,

appellant’s fourth assignment of error is moot.
Tuscarawas County App. Case No. 2012 AP 02 0016                             21


       {¶89} Accordingly, the judgment of the Tuscarawas County Court of Common

Pleas, Juvenile Division, is affirmed.




By: Edwards, J.

Delaney, P.J. and

Wise, J. concur

                                             ______________________________



                                             ______________________________



                                             ______________________________

                                                        JUDGES

JAE/d1002
[Cite as In re C.P., 2012-Ohio-5453.]


           IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


IN RE: CORY P.                                 :
                                               :
                                               :
                                               :
                                               :
                                               :       JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :       CASE NO. 2012 AP 02 0016




    For the reasons stated in our accompanying Memorandum-Opinion on file, the

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

affirmed. Costs assessed to appellant.




                                                   _________________________________


                                                   _________________________________


                                                   _________________________________

                                                                JUDGES
