In Re Dustin Bentley, Unpublished Decision (11-15-1999)
In Re Dustin Bentley, Unpublished Decision (11-15-1999)
Opinion of the Court
OPINION
On October 30, 1998, a complaint was filed charging appellant, Dustin Bentley, a minor, with two counts of underage consumption in violation of R.C.
I THE DECISION THAT DUSTIN BENTLEY WAS FOUND DELINQUENT ON THE CHARGE OF COMPLICITY TO ASSAULT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Appellant argues there is no evidence absent his presence at the scene of the assault on Mr. Evans to prove he committed any crime. Appellant argues three individuals assaulted Mr. Evans and the descriptions of those three individuals from witnesses do not match his. In its judgment entry filed December 31, 1998, the trial court made extensive findings including the fact that appellant was with Mr. Evans prior to the assault, and was in a group of individuals surrounding Mr. Evans within three to four feet. In particular, at Finding of Fact No. 3, the trial court found the following: 3. Patrolman Smith heard yelling as he approached the scene. (T. p. 72). He observed an individual, who he identified as Dustin, `jumping up and down and taunting somebody it appeared.' (T. pp. 73, 75). He testified that Dustin was five (5) to ten (10) feet from the victim when he arrived. Officer Smith later testified that he witnessed Dustin `taunting' the victim as he approached. (T. at 75). (Footnotes omitted.)
In the omitted footnotes, the trial court explained that after review of the tape of the magistrate's hearing, the officer testified that appellant was "taunting" Mr. Evans, not "talking" as certified by the court reporter. From our review of the record, we find a group of four to five young men approached Mr. Evans and lured him off the porch of a residence to an alley. T. at 13-14. The young men proceeded to jump on Mr. Evans by surrounding him and attacking him. T. at 20. A witness, Mary Jo Johnson, testified a group of five to seven "kids" were "beating him, kicking him, hitting him, throwing things at him." T. at 30. Ms. Johnson stated "most of the kids that were out there were involved." T. at 34. When police officers arrived, all the attackers were still present. T. at 36. Officer Douglas Zartman observed six or seven individuals fighting in the alley and ordered everyone to the ground. T. at 46. No one left the area after the police arrived. T. at 48. Officer Zartman observed appellant with the other individuals surrounding Mr. Evans and they were all attacking him. T. at 57, 59. Officer Robert Smith specifically observed appellant "taunting" Mr. Evans and jumping up and down within five to ten feet of Mr. Evans. T. at 73, 75, 79. Based on this evidence, we find sufficient evidence of aiding or abetting an assault, and no manifest miscarriage of justice.
Assignment of Error I is denied.
By Farmer, J. Wise, P.J. and Hoffman, J. concur.
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