[Cite as In re R.D.H., 2016-Ohio-5570.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                          LAKE COUNTY, OHIO


IN THE MATTER OF:                                  :      OPINION
R.D.H., DELINQUENT CHILD

                                                   :      CASE NO. 2015-L-132




Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No.
2015-DL-01550.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).



THOMAS R. WRIGHT, J.



        {¶1}    Appellant, R.D.H., appeals his conviction for complicity to robbery and

argues the state only established that he intended to commit theft. For the following

reasons, we affirm.
       {¶2}   R.D.H., a fifteen-year-old boy, agreed via social media to purchase a pair

of tennis shoes and a mobile phone from Michael, a fourteen-year-old boy who knew

R.D.H. through football. The shoes belonged to Michael and the phone belonged to

Jason, who was thirteen at the time. R.D.H. agreed to exchange $100 cash and $400

worth of marijuana for the shoes and phone.

       {¶3}   On the day of the exchange, Michael had a football game and could not

meet R.D.H. So Jason agreed to meet R.D.H. at the park. Jason had never met R.D.H.

before, but had seen his Facebook photo. R.D.H. was with two others when Jason

approached him. Jason’s two younger siblings were with him. Jason handed R.D.H.

the shoes and phone, and R.D.H. questioned whether the shoes were real. Jason

suggested that they walk to a nearby McDonald’s to use its Wi-Fi to contact Michael and

confirm certain details about the shoes.

       {¶4}   At one point, one of the three boys told Jason to go behind a house where

Jason suspected something bad was going to happen. One of the boys named Niko

jumped on Jason knocking him to ground while R.D.H. and the other boy ran toward a

nearby fence. R.D.H. climbed the fence and continued running. Jason got up and gave

chase catching the third individual, who did not have the shoes or the phone. Jason

then called the police.

       {¶5}   Within five minutes of the police dispatch, the police saw R.D.H. and Niko

running. The two were stopped at gunpoint. Jason identified R.D.H. at the scene as

the individual who took his phone and shoes and Niko as the person who tackled him to

the ground. R.D.H. still had the shoes and phone at the time.




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      {¶6}     R.D.H. initially told the police that he ran off with the items because Jason

tried to punch him. Niko told the police that it was the third boy, who had not been

caught, who took Jason’s things.

      {¶7}     At trial R.D.H. testified that he only intended to run away with the items

and not harm Jason. R.D.H. stated that Niko only learned about his plan to steal that

day at the park.

      {¶8}     R.D.H. also denied telling Jason to go behind the house, but he could not

recall who told Jason to go there. R.D.H. explained that although he planned to steal

Jason’s things, he never intended or agreed to hurt him.

      {¶9}     The complaint alleging R.D.H. to be a delinquent child contains two

counts.   First, R.D.H. “did knowingly aid or abet another in committing Robbery, a

violation of section 2911.02 of the Revised Code” if committed by an adult. The second

count alleged that R.D.H. received stolen property.        The juvenile court found both

counts true.

      {¶10} Appellant’s sole assigned error states:

      {¶11} “The trial court erred to the prejudice of the delinquent child-appellant

when it denied his Crim.R. 29(A) motion for judgment of acquittal, in violation of his

rights to fair trial and due process as guaranteed by the Fifth and Fourteenth

Amendments to the United States Constitution and Article I, Sections 10 and 16 of the

Ohio Constitution.”

      {¶12} A juvenile court may adjudicate a juvenile as a delinquent child when the

evidence demonstrates beyond a reasonable doubt that the child committed an act that




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would constitute a crime if committed by an adult. R.C. 2151.35(A); Juv.R. 29(E)(4); In

re Williams, 3d Dist. Marion No. 9-10-64, 2011-Ohio-4338, ¶18.

       {¶13} Appellate courts do not consider a witness’ credibility when reviewing a

sufficiency-of-the-evidence claim. State v. Williams, 8th Dist. Cuyahoga No. 98528,

2013-Ohio-1181, ¶27; State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767

N.E.2d 216, ¶79. Instead, we determine whether the testimony and other evidence

presented satisfy every element of the offense. In re C.A., 8th Dist. Cuyahoga No.

102675, 2015-Ohio-4768, ¶51.

       {¶14} Appellant argues acquittal was necessary because the state failed to

prove beyond a reasonable doubt that he aided or abetted his co-delinquent in inflicting,

attempting to inflict, or threatening to inflict physical harm on another. Consequently, he

claims the state violated his state and federal due process rights.

       {¶15} A Juv.R. 29(A) motion for acquittal tests the sufficiency of the evidence

and requires a trial court to issue a judgment of acquittal when the state fails to

establish sufficient evidence to support a conviction.        State v. Haggerty, 2d Dist.

Montgomery No. 24405, 2011-Ohio-6705, ¶20, citing State v. Bridgeman, 55 Ohio St.2d

261, 381 N.E.2d 184 (1978); In re R.A.M., 11th Dist. Lake No. 2010-L-011, 2010-Ohio-

4198, ¶10. Appellate courts review the denial of a motion for acquittal under the same

standard for arguments asserting insufficient evidence. Id.

       {¶16} “‘An appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after




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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. Chessman, 2d Dist. Montgomery No. 24451, 2012-Ohio-1427, ¶3

quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).

       {¶17} Following trial, the court found both counts of the complaint, i.e., complicity

to robbery, a felony of the second degree if committed by an adult under R.C.

2923.03(A)(2) and receiving stolen property, a first-degree misdemeanor if committed

by an adult under R.C. 2913.51(A), true.

       {¶18} Appellant only challenges the mens rea aspect of his complicity to robbery

offense and argues although he intended to commit theft, he did not intend to commit

robbery, and the state did not prove he was complicit to his friend’s robbery. Thus,

viewing the evidence in a light most favorable to the prosecution, we must determine

whether the state satisfied its burden.

       {¶19} R.C. 2923.03(A) complicity states in part:

       {¶20} “No person, acting with the kind of culpability required for the commission

of an offense, shall do any of the following:

       {¶21} “* * *

       {¶22} “(2) Aid or abet another in committing the offense * * *.”

       {¶23} R.C. 2911.02 states in part:

       {¶24} “(A) No person, in attempting or committing a theft offense or in fleeing

immediately after the attempt or offense, shall do any of the following:

       {¶25} “* * *

       {¶26} “(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;




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        {¶27} “(B) Whoever violates this section is guilty of robbery. A violation of

division (A)(1) or (2) of this section is a felony of the second degree.”

        {¶28} In State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, 754 N.E.2d 796,

the Supreme Court reversed the decision of the Seventh Appellate District and

reinstated Johnson’s conviction and sentence for conspiracy to commit aggravated

murder. Johnson was a member of the Crips, who along with other gang members,

took a caravan of stolen cars to locate and kill a rival gang member. Johnson was in

the backseat with the shooter when the shooter shot and killed a three-year old girl and

injured three others.

        {¶29} Johnson argued the state failed to establish he had the requisite mental

state that he intended to kill. The Supreme Court rejected this argument explaining in

part,

        {¶30} “Defendant would have this court conclude that because no witness

pinpointed a specific statement by defendant of his intent to join the plan to kill * * *,

there is insufficient evidence to support a conviction for complicity based on aiding and

abetting. This position defies not only the law but common sense.

        {¶31} “* * *

        {¶32} “Defendant was not an innocent bystander who was merely along for the

ride. In fact, he intended to assist with the murder * * *. We agree with the proposition

that ‘participation in criminal intent may be inferred from presence, companionship and

conduct before and after the offense is committed.’

        {¶33} “* * *




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       {¶34} “The fact that defendant did not articulate his intent will not allow him to

escape responsibility for his clear actions of complicity by aiding and abetting in the

commission of these crimes.      Accordingly, we hold that to support a conviction for

complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must

show that the defendant supported, assisted, encouraged, cooperated with, advised, or

incited the principal in the commission of the crime, and that the defendant shared the

criminal intent of the principal. Such intent may be inferred from the circumstances

surrounding the crime.” (Citation omitted.) (Emphasis added.) Id. at 245-246.

       {¶35} In State v. White, 12th Dist. Clinton No. CA99-09-025, 2000 Ohio App.

LEXIS 5655, (Dec. 4, 2000), White challenged his convictions for aggravated robbery

and petty theft arguing that the offenses occurred after he left the scene. However, the

court of appeals disagreed and found the state provided sufficient evidence from which

it could be inferred that White intended to rob the victim based on his participation in the

assault on him minutes before. Id. at *5-6.

       {¶36} In this case, the state’s evidence confirms that R.D.H. devised a plan to

steal the shoes and phone and his friend participated in his plan. One of the three boys

directed Jason behind the house where he was tackled to the ground. At approximately

the same time Jason was tackled, R.D.H. and the other boy began running away.

R.D.H. still had possession of the items when he scaled a fence to get away from the

victim. Niko then ran away and caught up to R.D.H., and the two continued to run

together until they were detained by the police.       The victim caught up to the third

individual, who did not have possession of his stolen items, so he let him go. This third

person was not with Niko and R.D.H. when they were spotted running by the police.




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      {¶37} After viewing the evidence in R.D.H.’s case in a light most favorable to the

prosecution, we agree that the state produced sufficient evidence that could be

construed as R.D.H. sharing the intent to inflict injury on their common victim. As in

Johnson and White, supra, R.D.H.’s participation in the requisite criminal intent may be

inferred from his presence, companionship, and conduct before and after the offense.

Specifically, the boys acted together by walking with Jason out of the park and directing

him behind a home. R.D.H. had possession of the stolen items and ran while Niko

knocked the victim to the ground. The assault provided R.D.H. the opportunity to get

away. Thereafter, the two were found running from the scene together.

      {¶38} Based on the foregoing, R.D.H.’s sole assignment of error lacks merit, and

the judgment of the Lake County Court of Common Pleas, Juvenile Division, is affirmed.



CYNTHIA WESTCOTT RICE, P.J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only.




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