[Cite as In re J.T.,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: J.T. C.A. No. 30223

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DL 20 04 0347

DECISION AND JOURNAL ENTRY

Dated: September 30, 2022

HENSAL, Presiding Judge.

{¶1} J.T., a juvenile, appeals from the judgment of the Summit County Court of

Common Pleas, Juvenile Division. This Court affirms.

I.

{¶2} J.T. was charged with one count of criminal damaging in violation of Revised Code

Section 2909.06 and one count of vandalism in violation of Section 2909.05. The charges stemmed

from damage J.T. and two other juveniles allegedly caused to the victim’s car. Relevantly, the

vandalism statute under which J.T. was charged required proof that the victim used her car in her

“profession, business, trade, or occupation[.]” R.C. 2909.05(B)(1)(a). The matter proceeded to

an adjudication hearing before a magistrate.

{¶3} At the adjudication hearing, the State presented evidence indicating that J.T. and

two other juveniles poured sugar into the gas tank of the victim’s car and threw eggs and water

balloons at the victim’s car, which caused over $1,850.00 in damage. According to one of the 2

juveniles, it was J.T.’s idea to “do something to the [victim’s] car[.]” That juvenile admitted that

she was the person who poured the sugar into the victim’s gas tank, but that it was J.T.’s idea and

J.T. threw eggs and water balloons at the victim’s car. The victim testified that she was self-

employed as home health aide, that she also worked at a beauty shop, and that she used her car to

get to work.

{¶4} After the hearing, the magistrate adjudicated J.T. delinquent on both counts. In its

decision, the magistrate indicated that J.T. threw eggs and water balloons at the victim’s car and

that, while J.T. did not pour sugar into the victim’s gas tank, it was her idea to do so. The

magistrate also indicated that the victim used the car “for transportation relative to her

employment” as a home health aide, “which invariably required the use of the [c]ar to travel from

patient to patient, as opposed to just driving to a static place of employment.” The juvenile court

adopted the magistrate’s decision the same day it was issued.

{¶5} J.T. filed objections to the magistrate’s decision. Relevantly, J.T. argued that the

State failed to present evidence indicating that the victim used her car in her business or profession

for purposes of the vandalism charge. J.T. also argued that the State failed to prove that she poured

sugar into the victim’s gas tank.

{¶6} In response, the State argued that the victim testified that she was a home health

aide, and that all reasonable inferences from that testimony established that the victim used her car

in her business or profession. The State also argued that the evidence established that it was J.T.’s

idea to pour sugar into the victim’s gas tank, that J.T. solicited another juvenile into pouring sugar

into the victim’s gas tank, and that J.T., therefore, was complicit in that criminal act.

{¶7} The juvenile court overruled J.T.’s objections. In doing so, the juvenile court relied

upon the Third District’s decision in State v. Uballe, 3d Dist. Seneca No. 13-05-47, 2006-Ohio- 3

6922, for the proposition that the nature of a home health aide’s occupation requires continuous

transportation to and from various homes to meet the needs of patients. See id. at ¶ 12. The

juvenile court, therefore, rejected J.T.’s argument that the State failed to establish that the victim

used her car in her business or profession. The juvenile court also found that it was J.T.’s idea to

damage the victim’s car, that J.T. initiated the plan, and that the juveniles collectively damaged

the victim’s car. The juvenile court, therefore, rejected J.T.’s argument that she could not be

criminally liable for pouring sugar into the victim’s gas tank.

{¶8} J.T. now appeals, raising three assignments of error for this Court’s review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FOUND APPELLANT DELINQUENT ON COUNT TWO WHEN THERE WAS NOT SUFFICIENT EVIDENCE TO ESTABLISH AN ESSENT[I]AL ELEMENT OF VAND[A]LISM BEYOND A REASONABLE DOUBT.

{¶9} In her first assignment of error, J.T. argues that the State failed to present sufficient

evidence to support her delinquency adjudication for vandalism. Specifically, she argues that the

State failed to present evidence establishing that the victim used her car in her business or

profession. For the reasons that follow, this Court disagrees.

{¶10} This Court applies the same sufficiency standard of a review in a juvenile

delinquency appeal that we apply in an adult criminal appeal. In re T.A., 9th Dist. Medina No.

19CA0025-M,

. Whether a conviction is supported by sufficient evidence is

a question of law, which we review de novo. State v. Thompkins,

(1997).

In carrying out this review, our “function * * * 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.” State v. Jenks,

(1991), paragraph two of the 4

syllabus. “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.” Id.; State v. Thomas, 9th Dist. Lorain No. 19CA011578,

(“[A] sufficiency review commands the court to make all reasonable

inferences in favor of the State.”).

{¶11} Section 2909.05(B)(1)(a), under which J.T. was charged, provides that “[n]o person

shall knowingly cause physical harm to property that is owned or possessed by another[] when *

* * [t]he property is used by its owner or possessor in the owner’s or possessor’s profession,

business, trade, or occupation[.]” Here, the victim testified that she worked as a self-employed

home health aide and also worked at a beauty shop. When asked how she would get to work on a

typical day, the victim responded: “I drive my car.”

{¶12} Courts have held that testimony indicating that the victim used his or her car to

drive to and from work, without more, is insufficient for purposes of establishing vandalism under

Section 2909.05(B)(1)(a). See, e.g., State v. Webb, 6th Dist. Lucas No. L-90-280,

, *4 (Nov. 15, 1991); State v. Hart, 8th Dist. Cuyahoga No. 79564,

, * 6

(Mar. 14, 2002). Here, however, the victim also testified that she was a self-employed home health

aide. Making all reasonable inferences in favor of the State, we conclude that a rational trier of

fact could have found that the victim used her car in her business or profession, and that the State

proved the essential elements of vandalism beyond a reasonable doubt. See Uballe, 2006-Ohio-

6922, at ¶ 12. J.T.’s first assignment of error is overruled. 5

ASSIGNMENT OF ERROR II

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND APPELLANT DELINQUENT ON COUNTS ONE AND TWO AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶13} In her second assignment of error, J.T. argues that her delinquency adjudications

for criminal damaging and vandalism were against the manifest weight of the evidence. For the

reasons that follow, this Court disagrees.

{¶14} Like our sufficiency standard of review, this Court applies the same manifest

weight standard of review in a juvenile delinquency appeal that we apply in an adult criminal

appeal. In re T.A.,

. When considering a challenge to the manifest weight

of the evidence, this Court is required to consider the entire record, “weigh the evidence and all

reasonable inferences, consider the credibility of witnesses and determine whether, in resolving

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten,

(9th Dist. 1986). “A reversal on this basis is reserved for the exceptional

case in which the evidence weighs heavily against the conviction.” State v. Croghan, 9th Dist.

Summit No. 29290,

.

{¶15} Regarding J.T.’s delinquency adjudication for criminal damaging, Section

2909.06(A)(1) provides that no person shall knowingly, by any means, “cause * * * physical harm

to any property of another without the other person’s consent[.]” As the Ohio Supreme Court has

stated, “a defendant charged with an offense may be convicted of that offense upon proof that he

was complicit in its commission, even though the indictment is ‘stated * * * in terms of the

principal offense’ and does not mention complicity.” State v. Herring,

(2002), quoting R.C. 2923.03(F). “To support a conviction for complicity by aiding and abetting 6

* * * 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.” State v. Johnson,

(2001), syllabus.

{¶16} J.T. argues that her delinquency adjudication for criminal damaging was against the

manifest weight of the evidence because another juvenile admitted to pouring sugar into the

victim’s gas tank, and the testimony was unclear as to whether it was her (J.T.’s) idea to do so.

Despite her arguments to the contrary, the State presented evidence indicating that it was J.T.’s

idea to damage the victim’s car, and that she solicited two other juveniles to aid her in damaging

the victim’s car. While the evidence indicated that another juvenile, not J.T., poured sugar into

the victim’s car’s gas tank, that juvenile testified that it was J.T.’s idea to do so. In light of this

evidence, this Court cannot say that J.T.’s delinquency adjudication for criminal damaging was

against the manifest weight of the evidence.

{¶17} Regarding her delinquency adjudication for vandalism, J.T. argues that it was

against the manifest weight of the evidence because the victim only testified that she drove her car

to and from work, and there were “no facts * * * presented at trial that [the victim] was actively

caring for any patients at the time of the incident, when [the victim] may have last taken care of

patients, who [the victim’s] patients were, or if [the victim] cared for patients at any time after the

incident.” She also argues that there was no evidence to corroborate the victim’s testimony that

she worked as a home health aide.

{¶18} As previously noted, the victim testified that she is a self-employed home health

aide and that she used her car to get to work. The fact that the State did not present additional

evidence to corroborate the victim’s testimony does not render her delinquency adjudication

against the manifest weight of the evidence. State v. Bortner, 9th Dist. Lorain No. 02CA008189, 7

, ¶ 19 (“[T]he mere fact that only one witness for the prosecution could provide

testimony as to each element of the crime does not, in and of itself, indicate that the convictions

are against the manifest weight of the evidence.”). While additional testimony regarding the

victim’s job as a home health aide may have strengthened the State’s case, this Court cannot say

that this is the exceptional case in which the evidence weighs heavily against J.T.’s delinquency

adjudication. Croghan,

. J.T.’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE STATE COMMITTED PROSECUTORIAL MISCONDUCT AND REVERSIBLE ERROR WHEN IT RESPONDED TO APPELLANT’S MOTION FOR ACQUITTAL WITH FACTS WHICH WERE NOT TESTIFIED TO AT TRIAL.

{¶19} In her third assignment of error, J.T. argues that the State committed prosecutorial

misconduct when, in the prosecutor’s response to her counsel’s motion for acquittal, the prosecutor

referred to facts that were not in evidence. Specifically, she argues that the prosecutor committed

misconduct when the prosecutor stated that the victim’s job as a home health aide “entails her

driving her car to different homes to provide her services.”

{¶20} J.T.’s counsel did not object to the prosecutor’s alleged misconduct during the

adjudication hearing or in written objections following the hearing. As a result, J.T. is limited to

arguing plain error on appeal. State v. Moreland, 9th Dist. Summit No. 27910,

. J.T., however, has not developed a plain-error argument in her appellate brief, and this Court

will not construct a plain-error argument on her behalf. State v. Piatt, 9th Dist. Wayne No.

19AP0023,

(“We have repeatedly held that we will not construct a plain

error argument on an appellant’s behalf.”). J.T.’s third assignment of error is overruled. 8

III.

{¶21} J.T.’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

SUTTON, J. CONCURS. 9

CARR. J. CONCURRING IN PART, AND DISSENTING IN PART.

{¶22} I respectfully dissent from the judgment of the majority to the extent it concludes

that sufficient evidence was presented to support the delinquency adjudication for vandalism. I

cannot conclude, even when viewing the evidence in a light most favorable to the State, that

sufficient evidence was presented to demonstrate that “[t]he property [was] used by its owner or

possessor in the owner’s or possessor’s profession, business, trade, or occupation * * *.” R.C.

2909.05(B)(1)(a).

{¶23} As noted by the majority, testimony indicating that the victim used the car to drive

to and from work, without more, is insufficient for purposes of establishing vandalism under R.C.

2909.05(B)(1)(a). See State v. Hart, 8th Dist. Cuyahoga No. 79564,

, *6 (March

14, 2002). Here, the testimony was very limited. The victim testified that she was a self-employed

home health aide and worked at a beauty shop. When asked how she got to work, the victim

answered that she drove her car. There was no testimony as to what the victim’s job as a home

health aide required in terms of the use of her vehicle. I cannot conclude it is appropriate to infer

merely from the victim’s job title that the vehicle was used by the victim in her profession outside

of driving to and from work.

{¶24} While the majority cites to State v. Uballe, 3d Dist. Seneca No. 13-05-47, 2006-

Ohio-6922, ¶ 12, in support of its position, I would conclude the facts of Uballe are distinguishable

from the facts before this Court. The victim in Uballe “testified at trial that she owned the car in

question, that all four tires were slashed, and that the car was her only means of performing her

job as a self-employed home health care assistant in which she was involved seven days a week

picking up groceries and prescriptions for various patients/clients.” Id. at ¶ 12. Accordingly, in 10

Uballe there was at least some discussion as to the victim’s duties and how they would involve the

use of the vehicle at issue. The same is absent in this case.

{¶25} Accordingly, I dissent from the majority’s resolution of the first assignment of

error.

APPEARANCES:

JASON JORDAN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.