[Cite as In re J.C., 2013-Ohio-1292.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


IN THE MATTER OF J.C., III                       :      OPINION

                                                 :      CASE NO. 2012-L-083




Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No.
2012 DL 00367.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Appellee, state of Ohio).

R. Paul LaPlante, Lake County Public Defender, Vanessa R. Clapp and Rebekah J.
Kusar, Assistant Public Defenders, 125 East Erie Street, Painesville, OH 44077 (For
Appellant, J.C., III).



TIMOTHY P. CANNON, P.J.

         {¶1} Appellant, J.C., III (“J.C.”), appeals the judgment of the Lake County Court

of Common Pleas, Juvenile Division, adjudicating him delinquent on two counts of

inducing panic arising from his threats to shoot the students of his middle school with

his gang. J.C. contends this adjudication is against the sufficiency of the evidence such

that his motion for acquittal should have been granted. J.C. additionally argues this

adjudication is against the manifest weight of the evidence. For the following reasons,

the judgment is affirmed.
       {¶2} J.C. was charged in a four-count amended indictment.           On March 23,

2012, appellant was brought to trial on three counts of inducing panic in violation of R.C.

2917.31(A)(1) and (2): one second-degree felony charge, pursuant to R.C.

2917.31(C)(5), if committed by an adult (Count One); one first-degree misdemeanor

charge, pursuant to R.C. 2917.31(C)(2), if committed by an adult (Count Two); and one

fifth-degree felony charge, pursuant to R.C. 2917.31(C)(4)(a), if committed by an adult

(Count Four).    Count Three of the amended complaint, making false alarms, was

bifurcated from the trial and subsequently dismissed by the state.

       {¶3} At trial, the following facts were adduced through testimony. On Tuesday,

February 28, 2012—one day after the highly-reported fatal shootings at nearby Chardon

High School—J.C., a student at Perry Middle School, made numerous comments to

several students on the school bus and at school indicating he was going to “shoot up

the school” with his gang.

       {¶4} Five classmates testified to the nature of these comments.

       {¶5} Classmate One testified she had a conversation with J.C. on the bus en

route to school. When Classmate One expressed disapproval of J.C.’s comment that

the victims in Chardon “deserved to die,” J.C. explained that he was in a gang with the

then-alleged Chardon shooter and that they would come after her.

       {¶6} Classmate Two testified to a conversation she had with J.C. while in their

homeroom at the middle school. After J.C. informed her he was going to “shoot up the

school,” Classmate Two advised she would not joke about such a thing given the

tragedy that had transpired the previous day. According to Classmate Two, J.C. stated

he was not joking and he would return with his gang to shoot everyone in the school.




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       {¶7} Classmate Three testified he overheard J.C.’s comment in homeroom that

he was going to “shoot up the place.” Classmate Three explained he was going to

inform his teacher, but saw that two other students were already reporting the

comments.

       {¶8} Classmate Four and Classmate Five both testified to hearing J.C. state,

while in homeroom, that he and his gang were going to shoot up the school. Classmate

Five also stated J.C. said the same in the hallway. Classmate Four did not inform the

teacher but explained he determined the matter had already been reported.

       {¶9} Principal Scott Hunt testified to receiving reports of the account and

detailed the level of commotion that ensued. Principal Hunt explained that J.C. was

brought into the office and dismissed from school. He also testified that additional

security was brought into the school to quell concerns. He testified that the issue was

uploaded to the school’s online “portal” reporting system for parents as an avenue to

inform them that the matter was being handled.

       {¶10} Perry Village Police Chief Michael Shank testified to the concern

throughout the community as a result of J.C.’s comments. Chief Shank detailed the

increased security measures and also noted he became aware of at least one 9-1-1 call

from a concerned parent.

       {¶11} J.C’s father and mother both testified that neither parent had a weapons

permit nor did they keep weapons in their home.       They also testified that, to their

knowledge, J.C. was not in a gang nor did he own a gun.

       {¶12} J.C. moved for acquittal, which was denied. The trial court found the two

felony charges of inducing panic to be true and adjudicated J.C. a delinquent child. The




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court dismissed the misdemeanor count of inducing panic. On April 9, 2012, the trial

court issued its order of commitment, deeming the two charges allied offenses of similar

import, placing J.C. on community control, and staying his detention sentence. It should

be noted that, as the April 9, 2012 entry contemplated further action by setting a

restitution hearing for a later date, it was not a final, appealable order. See In re J.A.,

4th Dist. No. 11CA27, 2012-Ohio-2184, ¶6. On June 19, 2012, the order became final

when the trial court found restitution to be owed in the amount of $1,255.51, with J.C.

paying $500 via participation in a work detail program. The state waived one-half of the

remaining balance, and J.C.’s parents were ordered to split the remainder.

       {¶13} J.C. timely appeals and asserts two assignments of error.            J.C.’s first

assignment of error states:

       {¶14} “The trial court erred to the prejudice of the Delinquent Child-Appellant

when it denied his motion for acquittal made pursuant to Crim.R. 29(A) in violation of his

due process rights as guaranteed by the Fifth and Fourteenth Amendments to the

United States Constitution and Article I, Section 10 of the Ohio Constitution.”

       {¶15} As an initial matter, J.C.’s convictions on the two charges were deemed

allied offenses of similar import pursuant to R.C. 2941.25. As “a conviction consists of

both verdict and sentence,” and as the disposition entered on Count Four merged into

Count One, our analysis focuses solely on Count One—the second-degree felony

charge of inducing panic. State v. McGuire, 80 Ohio St.3d 390, 399 (1997); see also

State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶12.

       {¶16} Crim.R. 29(A) requires the trial court to grant a motion for acquittal if the

evidence is insufficient to sustain a conviction on the charged offenses. The test for




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determining sufficiency 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. Jenks, 61 Ohio St.3d 259

(1991), paragraph two of the syllabus, citing Jackson v. Virginia, 443 U.S. 307 (1979).

Thus, the claim of insufficient evidence invokes a question of due process, the

resolution of which does not allow for a weighing of the evidence. State v. Lee, 11th

Dist. No. 2010-L-084, 2011-Ohio-4697, ¶9.

       {¶17} In this case, the state had the burden of proving that J.C. caused “serious

public inconvenience or alarm” by initiating or circulating a report of an alleged or

impending crime, knowing such warning is false; or by “threatening to commit any

offense of violence”; or by “committing any offense, with reckless disregard of the

likelihood that its commission will cause serious public inconvenience or alarm.” R.C.

2917.31(A)(1)-(A)(3). Pursuant to R.C. 2917.31(C)(5), if the public place is a school,

inducing panic is a felony of the second degree if committed by an adult.

       {¶18} J.C. does not dispute making numerous threats to commit violence

against the school; instead, he maintains there is insufficient evidence to demonstrate

these threats caused serious public inconvenience or alarm. In support, J.C. points to

examples of inducing panic included in the statute’s 1974 legislative comments such as

making a false bomb threat in an airport causing canceled or delayed flights, or

deceptively causing a meeting to be cancelled for fear of the safety of those attending.

J.C. argues these examples, though non-exhaustive, nonetheless illustrate that the

“serious public inconvenience or alarm” envisioned by the statute is far more extensive




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than anything supported by the evidence in this case, especially when the school was

not evacuated or shut down.

       {¶19} To clarify, J.C.’s reliance on the fact that the school was not evacuated or

shut down to support his argument of insufficient evidence is misplaced. Pursuant to

R.C. 2917.31(A), a conviction for inducing panic requires the perpetrator to cause an

evacuation or “otherwise cause serious public inconvenience or alarm”; that is, the

absence of an evacuation does not negate a finding of serious public inconvenience or

alarm under the statute. (Emphasis added.)

       {¶20} Neither the statute nor its legislative notes define serious public

inconvenience or alarm.     The legislative notes simply explain that “the section is

designed primarily to avoid the harm which may result from panic.” However, case law

provides instruction concerning what is required to satisfy this element. For instance, in

State v. Walters, 2d Dist. No. 22801, 2009-Ohio-2076, ¶23, neighbors’ curiosity as to

police presence in a nearby private residence did not constitute serious public

inconvenience or alarm. In State v. Campbell, 195 Ohio App.3d 9, 2011-Ohio-3458,

syllabus (1st Dist.), although eight police officers were required to respond to a

domestic dispute when the defendant refused to open the door to his apartment, there

was no evidence the other tenants in the building were stirred, and the police officers

could not be inconvenienced as they were acting in their official capacity. Conversely,

in State v. Dulaney, 180 Ohio App.3d 626, 2009-Ohio-79, ¶22 (3d Dist.), a disgruntled

former employee phoned his former company threatening to beat up two employees.

The appellate court affirmed that there was serious public inconvenience or alarm: the

doors were locked, the police were called, and many of the employees were fearful as a




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result of the threat. Id. at ¶24. These cases demonstrate that mere public awareness

of an event is not sufficient to satisfy the element of serious public inconvenience or

alarm; there must be some type of disruption, discomfort, distress, or fear caused by

one or more of the three predicate actions found in R.C. 2917.31(A)(1)–(A)(3).

       {¶21} Turning to the facts of this case, the evidence adduced at trial indicates

the school’s preexisting sense of unease from the Chardon tragedy was heightened by

threats that similar violence could occur. Each student who testified indicated J.C.’s

threats of violence scared them to differing degrees, and they reported the incident or

told their parents. Principal Hunt explained that the students were concerned as reports

of J.C.’s comments continued to flood the office. Principal Hunt confirmed that those

students to whom he directly spoke expressed both fear and alarm given the

threatening nature of J.C.’s comments and the serious manner in which they were

delivered.   There was also concern shared by staff members as reports of the

comments circulated. Parents, who were made aware of the situation via the school’s

online “portal” reporting system, made phones calls to the office asking if it was safe for

their children to be at school. Though the school has two security officers on staff, extra

police presence was required to quell concerns as a direct result of the comments.

       {¶22} As to Count Four, the fifth-degree felony charge, J.C. argues the state was

unable to prove economic harm. However, as noted above, the finding of true with

regard to this count was merged into Count One. As a result, there was no disposition

imposed under Count Four, and any error with regard to the finding of true is not

relevant because it has been merged with the second-degree felony charge. However,

we note that the trial court’s journal entry in this regard is somewhat unclear. It is the




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province of the prosecution to elect which offense should merge with an allied offense.

State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669. That may have occurred in this

case at the disposition hearing; however, the transcript of that hearing is not part of the

record on this appeal. Although it would be appropriate for the trial court entry to reflect

that is what occurred, we will presume the regularity of the proceedings.

        {¶23} We conclude, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found that J.C.’s threats to commit an

offense of violence, i.e., to “shoot up” his middle school, caused serious public

inconvenience and alarm.

        {¶24} Accordingly, J.C.’s first assignment of error is without merit.

        {¶25} J.C.’s second assignment of error states:

        {¶26} “The trial court erred to the prejudice of the Delinquent Child-Appellant

when it returned a finding of ‘True’ against the manifest weight of the evidence.”

        {¶27} To determine whether a verdict is against the manifest weight of the

evidence, a reviewing court must consider the weight of the evidence, including the

credibility of the witnesses and all reasonable inferences, to determine whether the trier

of fact “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). In weighing the evidence, an appellate court must defer to the

factual findings of the trier of fact regarding the weight to be given the evidence and

credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one

of the syllabus.




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       {¶28} J.C. contends the evidence demonstrates the panic in the school was not

exclusively caused by his comments; instead, he notes there was still commotion due to

the school shootings in Chardon—located in a neighboring county—from the previous

day. He also notes the evidence indicated there was another issue involving electronic

postings from two other students the following day that caused concern. However,

Chief Shank testified to receiving calls from concerned parents specifically about J.C.’s

comments, noting that while everybody was already in a “heightened state” due to the

Chardon shootings, this matter made it worse.

       {¶29} Moreover, R.C. 2917.31 “does not limit the offense of Inducing Panic to

situations in which a single factor is the cause of the panic or alarm.” In re McCoy, 138

Ohio App.3d 774, 779 (2d Dist.2000).        In the analogous In re McCoy, a juvenile

appealed her adjudication as a delinquent for inducing panic arising from threats of

violence she made against her school shortly after the Columbine School shootings. Id.

at 774. She argued she was not the sole cause of the panic and alarm which disrupted

the school. Id. The Second Appellate District affirmed the judgment of the trial court,

noting that while there were indeed several factors that contributed to the air of panic at

the school, the juvenile could not “escape the fact that the record in this case

affirmatively shows that her statement was a significant contributing factor to the panic

and alarm[.]” Id. at 779. (Emphasis added.) The Second District also noted the “states

of alarm and panic among students might be expected to arise with even less

provocation, following a highly-reported tragedy like that at Columbine.” Id. Similarly

here, appellant cannot escape the facts in the record which illustrate his statements

caused much of the ensuing panic, inconvenience, and alarm. Further, it is difficult to




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envision a scenario whereby threats of deadly violence against a school, especially

immediately following the events in Chardon, would not result in the kind of

inconvenience and alarm contemplated by the statute.

          {¶30} Accordingly, there is no manifest miscarriage of justice. J.C.’s second

assignment of error is without merit.

          {¶31} The judgment of the Lake County Court of Common Pleas, Juvenile

Division, is affirmed.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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