[Cite as In re A.C.D.,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

IN THE MATTER OF: :

A.C.D. : CASE NO. CA2014-06-085

: OPINION 1/26/2015 :

:

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 13-N000959

John D. Smith Co., L.P.A., John D. Smith, Andrew P. Meier, 140 North Main Street, Suite B, Springboro, Ohio 45066, for defendant-appellant

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee, state of Ohio

PIPER, P.J.

{¶ 1} Defendant-appellant, A.C.D., appeals her adjudication of delinquency by the

Warren County Court of Common Pleas, Juvenile Division.

{¶ 2} During a summer night in 2013, T.D. had a party at his home while his parents

were on vacation. T.D.'s parents gave him instructions that he was not permitted to have

anyone in the home beside four friends T.D.'s parents authorized. T.D. invited the four

friends, and one of the friends asked T.D. if he could bring a female guest. T.D. told his Warren CA2014-06-085

friend that he could invite the female guest. The female guest then called another person,

S.K., and informed her of the party. At the time of the phone call, S.K. was with six other

teenagers, one of whom was A.C.D. After the call, the teenagers left to go to T.D.'s house

for the party.

{¶ 3} S.K., who knew T.D., believed that she could determine which house in the

neighborhood was T.D.'s because she had been in his house before. However, S.K. was

unsure which house was T.D.'s, and S.K. eventually led the other teenagers to the house

next to T.D.'s. The group rang the doorbell to the home, and when no one answered, they

went around to the back of the house. A.C.D. then opened the door to the back of the home,

and she and S.K. entered the house. The other teenagers waited outside, as none knew

whether or not they were at the correct house.

{¶ 4} Once inside the home, S.K. and A.C.D. took snacks from the kitchen's pantry

and began to eat them. At that point, the homeowner, who had been awakened by the

doorbell, heard talking downstairs and yelled for the intruders to leave. A.C.D. and S.K.

dropped the snacks they were eating onto the floor and ran out the back door, where the

others who had not entered the home were waiting for them. The homeowner came

downstairs and observed that his back door was open, and that his fence gate in the back

yard had been opened and left ajar.

{¶ 5} The homeowner called police, and Officer Randy Peagler responded to the call.

Officer Peagler spoke with the homeowner, and conducted a short investigation. As part of

his investigation, Officer Peagler spoke to teenagers, one of whom was T.D., who were

located in a parked car down the street from the home A.C.D. entered. Officer Peagler then

learned that A.C.D. and the others entered the wrong house, thinking it was the location of

T.D.'s party.

{¶ 6} A.C.D. was later charged with burglary, a fourth-degree felony. A magistrate -2- Warren CA2014-06-085

held a trial, and adjudicated A.C.D. a delinquent child for having committed a crime which, if

charged as an adult, would constitute burglary. A.C.D. objected to the magistrate's decision,

and the juvenile court overruled the objections and adopted the magistrate's decision in full.

A.C.D. now appeals the juvenile court's adoption of the magistrate's decision and her

adjudication as a delinquent child for having committed burglary, raising the following

assignment of error.

{¶ 7} THE TRIAL COURT ERRED IN OVERRULING A.D.'S OBJECTIONS TO THE

MAGISTRATE'S DECISION AND FINDING THAT SHE COMMITTED BURGLARY.

{¶ 8} A.C.D. argues in her assignment of error that the juvenile court erred by

adopting the magistrate's decision because she did not commit burglary.

{¶ 9} The purpose of a delinquency proceeding is to determine if the juvenile is

delinquent, i.e., has violated a law that would be a crime if committed by an adult. R.C.

2152.02(F)(1). With the exception of a jury trial, juveniles are entitled to the same procedural

safeguards afforded adults in criminal courts. In re Gualt,

,

(1967).

One of those protections requires the state to prove the allegation of delinquency by proof

beyond a reasonable doubt. Juv.R. 29(E)(4). Courts have generally relied on criminal

principles and relevant case law when analyzing questions in delinquency proceedings. In re

J.D.S., 12th Dist. Clermont Nos. CA2013-06-046, CA2013-06-051,

.

{¶ 10} When reviewing the sufficiency of the evidence underlying a criminal conviction,

an appellate court examines the evidence in order to determine whether such evidence, if

believed, would support a conviction. State v. Wilson, 12th Dist. Warren No. CA2006-01-

007,

. "The relevant inquiry 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,

(1991), paragraph two of the syllabus, superseded on other grounds. -3- Warren CA2014-06-085

{¶ 11} A.C.D. was charged with burglary in violation of R.C. 2911.12(B), which

provides "no person, by force, stealth, or deception, shall trespass in a permanent or

temporary habitation of any person when any person other than an accomplice of the

offender is present or likely to be present." As such, the state was required to prove beyond

a reasonable doubt that A.C.D. used force, stealth, or deception to trespass into the

homeowner's residence.

{¶ 12} It is well-established in Ohio law that any force effecting entrance, however

slight, constitutes the force required to satisfy the element. State v. Lattire, 12th Dist. Butler

No. CA2004-01-005,

. If "any force at all" is necessary to affect an

entrance into a building whether open, partly open, or closed, such entrance constitutes

force, including opening a closed but unlocked door. State v. Hibbard, 12th Dist. Butler Nos.

CA2001-12-276, CA2001-12-286,

, ¶ 30.

{¶ 13} During the trial, the state presented evidence that, if believed, established that

A.C.D. opened the back door of the home in order to enter, thus constituting the requisite

force. S.K. appeared as a witness at the trial, and when cross-examined, testified that

A.C.D. opened the door once the teenagers went to the back of the house.1 When viewed in

a light most favorable to the prosecution, this evidence established that A.C.D. opened the

unlocked door to gain entrance into the home, and therefore trespassed by force.

{¶ 14} A.C.D. also argues that the state failed to prove that she acted knowingly when

1. Despite A.C.D. not raising a specific manifest weight of the evidence challenge to her adjudication, she argues that the testimony of S.K. lacked credibility because S.K.'s testimony was contradicted by another witness. While another teenager, D.J., testified that S.K. opened the door, the juvenile court did not find the testimony credible for several reasons, including that D.J. did not have a good vantage point when he observed the door being opened. The evidence showed that it was dark at the time D.J. and the others stood at the back of the house, and D.J. testified that he did not go through the door, instead waiting back for the others to enter the house. As such, the juvenile court found the testimony of S.K. more credible than the testimony of D.J. in regard to who opened the door. However, and even if we were to find that S.K., not A.C.D., opened the door, principles of accomplice liability would apply, making A.C.D. liable for opening the door and walking through it. Regardless of which girl opened the door, neither had the authority to open the door or walk through.

-4- Warren CA2014-06-085

she entered the homeowner's house. The burglary statute prohibits trespass by means of

force, stealth, or deception. R.C. 2911.21(A)(1) defines one type of criminal trespass as

knowingly entering or remaining on the land or premises of another. According to R.C.

2901.22(B), "a person acts knowingly, regardless of his purpose, when he is aware that his

conduct will probably cause a certain result or will probably be of a certain nature. A person

has knowledge of circumstances when he is aware that such circumstances probably exist."

{¶ 15} A.C.D. argues that the state could not prove that she acted knowingly because

she made a mistake by believing that the homeowner's house was actually T.D.'s home.

Mistake of fact is a defense if it negates a mental state required to establish an element of a

crime. State v. Vansickle, 12th Dist. Fayette No. CA2013-03-005,

.

Mistake of fact is widely recognized as a defense to specific intent crimes when the

defendant has an honest purpose and the honest purpose provides an excuse for an act that

would otherwise be deemed criminal.

As such, mistake of fact can, in an appropriate

circumstance, negate a knowing mental state.

{¶ 16} The juvenile court found, and we agree, that A.C.D. could not successfully

assert mistake of fact as a defense, and that A.C.D.'s mistaken belief that the house was

T.D.'s or that she had permission to walk in the back door that night was unreasonable. The

evidence elicited at trial demonstrates that T.D. did not invite A.C.D. to his house, and that he

never had permission to invite A.C.D. over that night. The testimony also demonstrated that

A.C.D. had never been to T.D.'s house, and that she was merely relying on S.K.'s belief that

they were entering T.D.'s house. However, the testimony showed that S.K. never exerted a

firm belief that they were, in fact, entering T.D.'s home and instead, S.K. showed multiple

signs that she was unsure as to whether it was really T.D.'s home they were entering.

{¶ 17} Specifically, T.D.'s father testified that he did not give T.D. permission to have a

party, and instead, that T.D. only had permission to have a few designated friends at his -5- Warren CA2014-06-085

house. T.D. also testified that his parents gave him instructions not to have a party while

they were on vacation, and that he was only permitted to have designated friends over to his

house. T.D. also testified that while he knows who A.C.D. is because she attends his school,

he was not friends with her at the time of the incident. T.D. testified that A.C.D. had never

been to his house before, and that he did not invite her over to his house on the night of the

incident.

{¶ 18} Another teenager, D.J., who was with A.C.D. on the night of the incident,

testified that he accompanied A.C.D. and S.K., along with four other teenagers, to T.D.'s

neighborhood, believing that they were going to T.D.'s house for a party. D.J. testified that

he and the others went to the back of the house because "they weren't sure if it was [T.D.'s]

house." D.J. further explained that "they were not sure so they were talking about [it] and it

was between like that house and another house, which I guess that house was [T.D.'s] and

they decided it was that house that was [T.D.'s]." D.J. also testified that once the teenagers

got to the back of the house, they waited before entering because "they weren’t sure when

they were first walking whether it was [T.D.'s] or not." Even so, D.J. testified that S.K. and

A.C.D. went into the house and then ran out when the homeowner yelled at them. When

asked why he did not go into the house, and instead waited outside, D.J. answered "I was

waiting to see if it was [T.D.'s] house or not."

{¶ 19} S.K. also testified, and stated that while she as aware of which street T.D. lived 2 on, she was unsure as to the exact house. S.K. also testified that she never spoke to T.D.

that night to confirm which house was his, to confirm his address, or to receive a direct

invitation to the party. S.K. testified that the teenagers rang the doorbell of the house they

thought was T.D.'s, moved around to the back when they received no answer to the doorbell

2. The evidence at trial also indicated that the two houses in question were dissimilar, in that one had siding while the other had brick, they were not the same color, and that the houses had different features.

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ring, and that she and A.C.D. gained entrance to the house by opening the closed back door.

{¶ 20} This testimony establishes that A.C.D. and T.D. were not even friends, that

A.C.D. never had an invitation from T.D. to come to his house, and that she did not have any

personal knowledge as to which house was T.D.'s. Even though the teenagers received no

answer to the doorbell, the teenagers moved to the back of the house, and without taking any

steps to confirm ownership of the home, opened the closed back door and entered the

house. The entry was after S.K. debated multiple times whether the house was truly T.D.'s,

and after the other teenagers elected to stay on the deck because of the continued

uncertainty as to whose house they were entering. Therefore, A.C.D. entered the

homeowner's house knowing that a possibility existed that the house was not T.D.'s. As

such, A.C.D. was not successful in asserting the mistake of fact defense to negate her

knowing mental state on the night of the incident.

{¶ 21} A.C.D. also argues that the juvenile court erred by excluding hearsay evidence

as to why she and the other teenagers attempted to go to T.D.'s house on the night of the

incident. "It is well-established that the admission or exclusion of evidence rests within the

sound discretion of the trial court." State v. Gray, 12th Dist. Butler No. CA2011-09-176,

, ¶ 25. Absent an abuse of discretion, an appellate court will not disturb a

trial court's ruling as to the admissibility of evidence. State v. Issa,

(2001). An abuse of discretion connotes more than an error in law or judgment; it implies

that the court's attitude is unreasonable, arbitrary, or unconscionable. State v. Barnes,

(2002).

{¶ 22} According to Evid.R. 801(C), hearsay "is a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted." Hearsay is not admissible unless it falls within one of the permissible

hearsay exceptions. Evid.R. 802. -7- Warren CA2014-06-085

{¶ 23} A.C.D. called S.K. as a witness, and began to ask her questions about receiving

an invitation to go to T.D.'s house on the night of the incident for a party. During S.K.'s

testimony, she began to relay a statement made by another teenager, K.M., regarding the

party on the night of the incident and K.M.'s suggestion to enter T.D.'s house through the

back door. The magistrate sustained the state's objection as hearsay, and very clearly

indicated that the statements would not be admitted for the truth of the matter asserted

therein. After reviewing the record, we agree.

{¶ 24} K.M.'s statements, as offered by A.C.D. through the testimony of S.K., were

offered with the sole purpose of asserting the truth that the teenagers had permission to go to

T.D.'s home that night for a party and had permission to enter T.D.'s home through the back

door. As such, the statement was inadmissible hearsay and no exception exists for its

admission because A.C.D. was not offering the statement for any other reason than to prove

the truth of the matter asserted.

{¶ 25} For whatever reason, A.C.D. never called K.M. to testify to her statements.

Even if she had, however, such testimony would not have established that A.C.D. had reason

to rely upon K.M.'s statements. K.M. did not have authority to invite A.C.D. over to T.D.'s

house, and she did not have authority to tell the teenagers to come through the back door of

the home. Moreover, the state did not challenge the overall assertion that A.C.D. and the

other teenagers went to the homeowner's house because they thought it was T.D.'s house.

Therefore, the juvenile court had ample evidence that A.C.D. believed she was going to

T.D.'s house that night, and K.M.'s testimony would have been cumulative to the other

evidence about the party at T.D.'s house on the night of the incident. As such, and even if

we were to assume that K.M.'s statement was offered for some other purpose than the truth

of the matter asserted, such statement would not have proven the applicability of A.C.D.'s

mistake of fact defense. -8- Warren CA2014-06-085

{¶ 26} A.C.D. also argues that the juvenile court erred by not considering the lesser

included offense of criminal trespass. Even if an offense is a lesser-included offense,

consideration of the lesser-included offense is required only where the evidence presented at

trial would reasonably support both an acquittal on the crime charged and a conviction upon

the lesser-included offense. State v. Garrett, 12th Dist. Butler No. CA2002-05-111, 2003-

Ohio-5000, ¶ 13.

{¶ 27} Given our discussion of A.C.D.'s prior argument regarding the sufficiency of

evidence to support her adjudication, the juvenile court correctly found that A.C.D. committed

burglary beyond a reasonable doubt. As such, the evidence did not support the possibility of

an acquittal on the burglary charge or consideration of the lesser-included offense of criminal

trespass.

{¶ 28} After reviewing the record and considering each of A.C.D.'s arguments, we

overrule her single assignment of error.

{¶ 29} Judgment affirmed.

RINGLAND and HENDRICKSON, JJ., concur.

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