Opinion
No. 80-534
Decided March 11, 1981.
Juvenile Court — Appeal — Delinquency finding — Final appealable order, when — Felonious assault — Element of offense not shown, when.
APPEAL from the Court of Appeals for Geauga County.
In November and December of 1978, Jeffrey M. Sekulich, appellee herein, was employed as a caretaker at a horse farm in Geauga County and was residing in a company-owned house. The house, which is set back approximately 150 to 225 feet from the road, is surrounded by dense woods and acres of farmland.
During his employment, appellee was tormented by prowlers and burglars at his isolated residence. Numerous incidents of prowling were reported to the owner of the horse farm. On one specific occasion, appellee called the Geauga County sheriff's department to report a prowler at his residence.
On December 20, 1978, the appellee and three companions were spending a quiet evening at his residence. At approximately 11:55 p.m., the back doorbell rang. One of the appellee's friends answered the door but found no one there, although someone was seen "going by." After witnessing this strange occurrence, appellee picked up a shotgun and quickly went out the back door to pursue the person who rang the doorbell.
Upon reaching the front of the dimly lit house, appellee observed a vehicle backing out of the driveway. The glare of the car's headlights prevented appellee from obtaining a clear view of the vehicle's occupants.
Appellee raised his weapon and pointed it in the direction of the exiting auto and ordered the car to stop. The vehicle did stop, and the headlights were quickly extinguished. Then, a spotlight mounted on the vehicle was aimed at appellee in an attempt to blind him.
An unidentified voice ordered appellee to drop his shotgun. Appellee complied with this order, and the two men identified themselves as sheriff's deputies. Appellee was arrested when his weapon was found to be a loaded shotgun.
On December 21, 1978, a complaint was filed in the Geauga County Juvenile Court by appellant, the state of Ohio, alleging that appellee was a delinquent child by virtue of a violation of R.C. 2903.11(A)(2). On January 23, 1979, at an adjudicatory hearing in the Juvenile Court, appellee was found to be a delinquent child. The matter was continued for disposition.
On January 30, 1979, appellee filed a motion for transfer to the Cuyahoga County Juvenile Court. On February 6, 1979, a dispositional hearing was held, after which the court imposed a $50 fine and assessed court costs in compliance with R.C. 2151.355(A)(6). In this dispositional order, the court further ordered certification of the matter to the Cuyahoga County Juvenile Court.
On March 1, 1979, appellee filed his notice of appeal in the Court of Appeals for Geauga County. In mid-March, the Cuyahoga County Juvenile Court refused to accept the transfer because the Geauga County Juvenile Court had already entered a dispositional order. Accordingly, on March 16, 1979, the Geauga County Juvenile Court reinstated the cause. The Court of Appeals reversed the adjudication of appellee's delinquency as being against the manifest weight of the evidence.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. John F. Norton, prosecuting attorney, and Mr. Dale F. Pelsozy, for appellant.
Mr. Jonathan N. Garver, for appellee.
In its first proposition of law, appellant asserts that "[a] finding of delinquency by a juvenile court, not accompanied by a final dispositional order, is not a final appealable order."
We find this proposition of law to be without merit.
It is rudementary that a finding of delinquency by a juvenile court, unaccompanied by any disposition thereof, is not a final appealable order. In re Whittington (1969), 17 Ohio App.2d 164; In re Bolden (1973), 37 Ohio App.2d 7.
In the cause sub judice, however, the trial court assessed the appellee a $50 fine and costs, in full compliance with R.C. 2151.355, which states, in pertinent part:
"(A) If a child is found by the court to be a delinquent child, the court may make any of the following orders of disposition:
"***
"(6) Impose a fine not to exceed fifty dollars and costs."
The imposition of a penalty, pursuant to R.C. 2151.355(A)(6), is a dispositional order and, as such, is a final appealable order.
Appellant nevertheless points out that the order also stated that the matter was to be "[c]ertified to Cuyahoga County Juvenile Court for further disposition," and thus argues that the requisite finality of judgment was not present in this case.
Since there was a final dispositional order concerning this matter, nothing remained for certification to the Cuyahoga County Juvenile Court. The trial court exceeded its authority by attempting to both impose a fine and also transfer the matter to another jurisdiction.
R.C. 2151.271 controls the transferring of a cause from one juvenile court to another. R.C. 2151.271, in pertinent part, provides:
"***[A] juvenile court***may transfer the proceeding to the county of the child's residence upon the filing of the complaint or after the adjudicatory, or dispositional hearing, for such further proceeding as required.***"
This section does not encompass a transfer of the cause after a dispositional order has been made, which is the case herein. In fact, the Cuyahoga County Juvenile Court recognized that the transfer of the cause was improper, since a dispositional order had already been made by the Geauga County Juvenile Court.
Therefore, the Court of Appeals correctly determined that it had jurisdiction over the matter.
Appellant, in its second proposition of law, asserts that "[j]udgments and findings of trial courts may not be reversed as being against the manifest weight of the evidence if there is competent, credible evidence sufficient to prove all of the essential elements of the offense." In essence, appellant contends that the Court of Appeals erroneously exercised its authority by reversing the judgment of the trial court on the basis of disputed evidence.
We find no merit in this assertion.
It is basic that a court of appeals not only has the power to review the weight of the evidence, but, if the case is a proper one and the question is properly raised, it also has the duty to do so. Bridgeport Bank Co. v. Shadyside Coal Co. (1930), 121 Ohio St. 544.
Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279.
The facts in the record clearly support the decision of the Court of Appeals, which determined that there is no credible evidence supporting all the essential elements of R.C. 2903.11(A)(2). The record discloses numerous incidents regarding prowlers and burglars in the vicinity of appellee's residence just prior to the incident in question. The record demonstrates further that appellee had reasonable grounds for the belief that the occupants of the exiting automobile were engaged in criminal activity.
R.C. 2903.11 states, in part, as follows:
"(A) No person shall knowingly:
"***
"(2) Cause or attempt to cause physical harm to another by means of a deadly weapon***."
The prevailing circumstances, such as the dark surrounding area and the blinding lights, further buttress the decision of the Court of Appeals, which recognizes that an individual may use reasonable force in defense of his property.
Additionally, the facts reveal that the appellee pointed the shotgun at an unidentified vehicle and that, when ordered to put down his weapon, he complied. Only then did he discover that the occupants of the vehicle were deputy sheriffs.
Appellant cites State v. Tate (1978), 54 Ohio St.2d 444, as precedent for a finding of a violation of R.C. 2903.11(A)(2). However, this reliance upon Tate, supra, is misconstrued in that the defendant in that case knowingly pointed a gun at a police officer, whereas, in the instant cause, the record discloses the undisputed fact that the appellee did not know he was confronting sheriff's deputies.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., KRUPANSKY, P. BROWN, SWEENEY, LOCHER, DONOFRIO and C. BROWN, JJ., concur.
KRUPANSKY, J., of the Eighth Appellate District, sitting for W. BROWN, J.
DONOFRIO, J., of the Seventh Appellate District, sitting for HOLMES, J.