State v. Yarger

908 N.E.2d 462

181 Ohio App.3d 132

2009-Ohio-543

The STATE of Ohio, Appellant, v. YARGER, Appellee.

No. 7-08-05.

Court of Appeals of Ohio, Third District, Henry County.

Decided February 9, 2009.

John H. Hanna, Henry County Prosecuting Attorney, for appellant.

Richard C. Hasbrook, Toledo, for appellee.

PRESTON, Presiding Judge.

{¶ 1} The state of Ohio appeals the judgment of the Henry County Court of Common Pleas dismissing its case against defendant-appellee, Kent A. Yarger, and transferring the case to the juvenile division. For the reasons that follow, we reverse.

{¶ 2} On November 9, 2007, at approximately 2:00 a.m., Yarger allegedly committed several acts of vandalism. On March 19, 2008, Yarger was indicted on 11 counts of vandalism in violation of R.C. 2909.05(B)(1)(a), felonies of the fifth degree. On June 12, 2008, Yarger filed a motion to dismiss alleging that the court was without jurisdiction since Yarger was a juvenile on the date and at the time the acts of vandalism occurred. Yarger submitted a copy of his certificate of birth showing that he was born on November 9, 1989, at 10:15 a.m., and he argued that he did not actually turn 18 until 10:15 a.m. on November 9, 2007. The state objected to Yarger's motion to dismiss. However, on September 11, 2008, the trial court granted Yarger's motion and transferred the case to the Henry County Court of Common Pleas, Juvenile Division for further proceedings.

{¶ 3} The state now appeals and asserts one assignment of error.

ASSIGNMENT OF ERROR

The defendant was legally an adult on the date the crime was committed.

{¶ 4} In its assignment of error, the state argues that the trial court erred when it found that Yarger was a juvenile at the time he committed the offense, thereby dismissing and transferring the case to the juvenile division. The state points out that this is a case of first impression in this court, but indicates that there is a case from the Court of Appeals for the Fifth District, State v. Clark (1993), 84 Ohio App.3d 789, 618 N.E.2d 257, that we should follow.

{¶ 5} In response, Yarger argues that the trial court properly determined that he was a juvenile at the time of the offense. Yarger claims that under the rules of statutory construction prescribed in R.C. 2151.01 and R.C. 2901.04, the terms "child" and "adult" should be "liberally construed" in favor of the accused and strictly construed against the state. As Yarger argued in his brief, 18 years earlier he had not been born at the time of the commission of the alleged offenses, thus he was still a child. In addition, Yarger urges this court not to follow Clark because it is not controlling and it relied on a civil case decided in 1677.

{¶ 6} This court reviews a trial court's decision to grant or deny a motion to dismiss under a de novo standard of review. State v. Hicks, 3d Dist. Nos. 14-07-26 and 14-07-31, 2008-Ohio-3600, 2008 WL 2789543, ¶ 17, citing State v. Collins, 12th Dist. No. CA2007-01-010, 2007-Ohio-5392, 2007 WL 2916187, citing State v. Benton (2000), 136 Ohio App.3d 801, 805, 737 N.E.2d 1046. The trial court, after considering both parties' arguments, stated as follows:

Based on this Court's reading of O.R.C. Section 2151.011(B)(2) & (5) and the rules of statutory construction set forth in O.R.C. Section 2901.04(A), this Court finds the Defendant was a "child" at the time of the alleged offense. This Court does not find the case of Nichols v. Ramsel, being a civil dispute, to be persuasive authority in a criminal case. State v. Clark, 84 Ohio App.3d 789, 618 N.E.2d 257 (1993) relied on the Nichols standard and is not binding precedent in this Court.

The trial court then granted Yarger's motion and transferred the case to the juvenile division.

{¶ 7} A "child" is defined in the general provisions of the juvenile code under R.C. 2151.011(B)(5) as "a person who is under eighteen years of age," while an "adult" is defined under R.C. 2151.011(B)(2) as "an individual who is eighteen years of age or older." While the statute is clear that the age of majority in the state of Ohio is 18, the issue in this case is when exactly does Ohio consider someone to be the age of 18: at 12:01 a.m. the day of their birth or the exact time at which they were born?

{¶ 8} Yarger insists that this is an issue of statutory interpretation and that the rule of lenity, prescribed in R.C 2901.04, should dictate the outcome of this appeal. The rule of lenity is a common-law principle that has been codified in the criminal provisions of the Ohio Revised Code and states that "offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused." R.C. 2901.04(A). Regarding the rule of lenity, this court has stated:

The rule of lenity applies only where there is an ambiguity in a statute or conflict between multiple statutes. United States v. Johnson (2000), 529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39; United States v. Lanier (1997), 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432; State v. Arnold (1991), 61 Ohio St.3d 175, 178, 573 N.E.2d 1079.

State v. Herbert, 3d Dist. No. 16-06-12, 2007-Ohio-4496, 2007 WL 2473486, ¶ 25, quoting State v. Moore, 3d Dist. No. 1-06-51, 2006-Ohio-6860, 2006 WL 3771098, ¶ 11-12. If there is no ambiguity or conflict in the statute, then the rule of lenity is inapplicable. See id. While it appears that the definition of a "child" is susceptible to both interpretations argued by the parties, because Ohio has long recognized the common-law principle that there are no fractions of a day and a majority of jurisdictions have applied this same principle to determining a person's age, this court believes that the rule of lenity is inapplicable.

{¶ 9} It has been well established in Ohio that fractions of a day are not considered when computing time. Greulich v. Monnin (1943), 142 Ohio St. 113, 116-117, 26 O.O. 314, 50 N.E.2d 310. In discussing this common-law principle, the Ohio Supreme Court has stated:

Fractions of a day are not generally considered in the legal computation of time, and the day on which an act is done or an event occurs must be wholly included or excluded.

The term "day," in law, embraces the entire day, and refers to a day as a unit of time, not as an aggregation of a certain number of hours, minutes, or seconds. In this sense, and for the purpose thus used, a day is not capable of subdivision into hours, minutes, or seconds, but is to be taken as a whole. In such computations the hours are not counted to ascertain whether a period of twenty-four hours or a given number of such periods have elapsed between the act to be done and the day from which the time is to begin running. The fractions of the days are no more taken into consideration than are the fractions of the seconds. The consequence is that every day and every part of that day is, by this rule, one day before every part of the succeeding day. The last moment of any day is, in contemplation of law in such cases, one day before the first moment of the next day, although the elapsed time is infinitesimal. The rule is strictly one of convenience. Any other method of computation would require an accurate account to be kept of the exact hour, minute, and second of the occurrence of the act to be timed, would produce endless confusion and strife, and would prove impolitic, if not wholly impracticable.

Greulich, 142 Ohio St. at 117, 26 O.O. 314, 50 N.E.2d 310, quoting 39 Ohio Jurisprudence (1943) 196, Computation of Time, Section 10. Moreover, the Ohio Supreme Court has stated, "According to principles of statutory construction, the General Assembly will not be presumed to have intended to abrogate a common-law rule unless the language used in the statute clearly shows that intent." Carrel v. Allied Prods. Corp. (1997), 78 Ohio St.3d 284, 287, 677 N.E.2d 795, citing State ex rel. Morris v. Sullivan (1909), 81 Ohio St 79, 90 N.E. 146, paragraph three of the syllabus.

{¶ 10} Thus far, only one Ohio court has applied this common-law principle to determining a person's age. In State v. Clark, the defendant was indicted on one count of criminal mischief and two counts of petty theft. 84 Ohio App.3d at 790, 618 N.E.2d 257. The state alleged that these violations occurred somewhere between 3:14 a.m. and 3:30 a.m. on August 26, 1992. Id. However, the defendant argued that the trial court lacked jurisdiction because he was born at 9:20 a.m. on August 26, 1974, and thus was still under the age of 18 at the time of the offenses. Id. The trial court overruled the defendant's motion, and subsequently, the defendant entered pleas of no contest and was found guilty on all charges. Id.

{¶ 11} On appeal, the defendant again argued that "[t]he trial court erred in not granting the defendant-appellant's motion to dismiss, as the defendant-appellant had not technically reached his age of majority at the time the alleged offenses occurred." Id. at 791, 618 N.E.2d 257. Because there was not any Ohio precedence on this issue, the court looked to the common-law no-fractions-of-a-day rule, citing Nichols v. Ramsel (1677), 2 Mod. 280, 86 Eng.Rep. 1072, cited in 5 A.L.R.2d 1143, 1145. Id. Then, after applying this common-law rule to the definition of a "child," the court held that the defendant had attained the age of 18 at 12:01 a.m. on the August 26, 1992; therefore, the defendant was not a child at the time of the offense. Id. at 791-792, 618 N.E.2d 257.

{¶ 12} Even though there has only been one Ohio case (which we acknowledge is not controlling precedent to this court) that has applied this common-law principle to determining a person's age, this approach has been adopted by many other jurisdictions. For example, similar to the facts presented in this case, in Ellingham v. Morton, the defendant argued that the trial court lacked jurisdiction since the offense occurred at 3:00 a.m. on the defendant's birthday and he did not become 16 until later at...