[Cite as In re T.M., 2019-Ohio-4552.]

 

Appeal From: Hamilton County Juvenile Court 

 

Judgments Appealed From are: Reversed and Causes Remanded 

Date of Judgment Entry on Appeal: November 6, 2019 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant 

Prosecuting Attorney, for Plaintiff-Appellee, 

 

Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler, 

Assistant Public Defender, for Defendant-Appellant. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

IN RE: T.M. : 

: 

: 

APPEAL NO. C-180622 

 TRIAL NOS. 17-6270Z 

 18-1302Z 

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

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MOCK, Presiding Judge. 

{¶1} In five assignments of error, appellant T.M. claims that the trial court 

erred when it ruled that he was a delinquent child for committing a felonious assault, 

when it committed him to the Department of Youth Services (“DYS”) for that offense, 

and when it committed him to DYS for a second, unrelated offense for which he had 

previously been adjudicated delinquent. For the reasons set forth, we reverse the 

decisions of the trial court and remand the causes for further proceedings. 

Delinquency Trial Continues without 

Defense Witnesses 

{¶2} The victim in this case testified that he received a call from his 

daughter in which she told him that a group of children were harassing her. The 

victim then walked down to the house where his daughter lived. He testified that the 

other children were yelling and throwing rocks at the house. T.M., who was present, 

yelled at the victim, demanding that he leave the kids alone. The victim said that, at 

that point, the two “got into it.” He said T.M. started swinging at him, and he started 

to protect himself. “I try to walk away from the situation, and the next thing I know, 

I am waking up in the back of an ambulance.” 

{¶3} The victim’s daughter’s mother testified that 

[the victim] started walking toward my yard and I think - - I’m not 

positive, but I think [T.M.] may have grabbed his shirt, but I know 

[T.M.] came up from behind him, and as [the victim] went to turn, 

[T.M.] grabbed him around the arms and then he went to fall 

backwards, [the victim] went with him over his shoulder and landed 

on his head. 

The victim was turning to face T.M. when T.M. gave him the “bear hug.” She said 

that “I guess [T.M.] fell backwards, and when he fell backwards [the victim] went 
OHIO FIRST DISTRICT COURT OF APPEALS

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with him and went over his shoulder and landed on his head.” Later, she again said 

“[T.M.] fell backwards, and he still had ahold of [the victim]. When [T.M.] went 

down backwards, [the victim] went down and then his head went over his shoulder.” 

She said that it looked like T.M. was about to kick the victim, but she had started 

running toward them and T.M. fled. 

{¶4} T.M. testified that he and the victim were yelling at each other. He 

said that the victim then punched him in the head, and T.M. punched the victim in 

the chest. He said that the victim grabbed him by the shirt and tried to pick him up, 

at which point the two men fell over. T.M. said that after he fell he ran to his sister’s 

house. 

{¶5} The case had been set for trial three times after the preliminary 

hearing. At the first trial setting, on July 30, 2018, the state requested a continuance 

because it did not know where the victim was. Defense counsel opposed the request, 

noting, “I do have two of my witnesses here.” The trial court granted the state’s 

request and reset the hearing for August 20. On that date, the state again requested 

a continuance because the victim had been hospitalized. The state had been 

contacted on August 16 and had filed the motion for a continuance on August 17. 

Again, defense counsel stated that the defense was “prepared to go forward.” The 

trial court granted that motion and the case was reset for September 18. 

{¶6} On that date, the hearing began with defense counsel informing the 

trial court that “[a]t this point we weren’t sure that the PW was going to appear. I 

did have some witnesses subpoenaed. They are at school, so after - - when the 

defense begins, if I can’t get them here, I would like to ask for a continuance in 

progress.” The trial court said that “we’ll deal with that then. I would go ahead and 

contact your witnesses and tell them to make their way to juvenile court, okay?” 

{¶7} At the conclusion of the state’s case, defense counsel stated: 
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MS. RICE: I have been trying to get in contact with the investigator to 

pick up my two witnesses from Holmes High School, and he let me 

know he was up in Blue Ash, and at 10:53 this morning, he told me it’s 

going to be at least 45 minutes to an hour before he could get the 

witnesses here, so at this point— 

THE COURT: I don’t understand why you didn’t have your witnesses 

ready for trial. 

MS. RICE: I did. I subpoenaed them. 

THE COURT: I know, but why weren’t they here? 

MS. RICE: Because apparently at the last hearing - - 

THE COURT: That was a gamble you took, isn’t it? 

MS. RICE: I’m sorry? 

THE COURT: At the last hearing - - what were you going to say? 

MS. RICE: I did subpoena them. 

THE COURT: Okay 

MS. RICE: And all of the other, the police officers that I subpoenaed 

were here. At the last hearing we were here, the State requested a 

continuance. There was some confusion, I guess. As to dad, [T.M.’s 

father], thought that we were going to hold off on our witnesses to see 

if the PW was going to show up. I expected them to be here. I 

certainly didn’t expect them to be at school. 

THE COURT: So you issued a subpoena for them to appear? 

MS. RICE: I did, your honor. 

THE COURT: And they are not here? 

MS. RICE: Correct. 

THE COURT: All right. From the state? 
OHIO FIRST DISTRICT COURT OF APPEALS

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MR. MERSCHBACH: Yes. The State is opposed to the continuance. 

We are here ready for trial. In regards to the continuance of the last 

hearing, it was because our victim was at the V.A. We knew about that 

in advance and filed a motion in advance, which obviously we did not 

do in this case. We were prepared for our portion of the trial. 

MS. RICE: Just for the record, the State has had multiple 

continuances in this matter, and I think the defense has never 

requested one. I think there is good cause for either the Court to allow 

a brief recess in order for my witnesses to get here or a brief 

continuance in progress. 

THE COURT: Okay. Your request for continuance is denied. Your 

witnesses were subpoenaed to be here at the time of trial. Everyone 

knew today was the trial date. You were prepared for trial. It’s just 

unfortunate you don’t have them present. 

{¶8} At the conclusion of the trial, the trial court found T.M. delinquent for 

having committed felonious assault. On the issue of knowingly causing serious 

physical harm, the trial court stated “it was clear that defendant grabbed him in a 

bear hug and they fell to the ground.” The trial court rejected T.M.’s self-defense 

argument. Defense counsel proffered that 

[J.A. and T.D.] were witnesses to this incident. They were - - they 

talked to the police officers. It’s on the body camera. We did 

subpoena both of them. They are not here; however, we did try to get 

them here and were unable to. Testimony would have been, we were 

walking to Family Dollar. Dude came out and said stop messing with 

my kids, started yelling, white dude hit someone and got hit back. 
OHIO FIRST DISTRICT COURT OF APPEALS

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At a subsequent disposition hearing, the trial court ordered T.M. to be committed to 

DYS for a minimum of one year up to the age of 21. Additionally, the juvenile court 

imposed a six-month commitment that had been suspended in a prior, unrelated 

case in which T.M. had been found delinquent for committing the offense of 

aggravated assault. 

Request For Recess/Continuance 

{¶9} In his first assignment of error, T.M. claims that the trial court abused 

its discretion when it denied his motion for a recess or continuance to get the 

witnesses to court. We review a trial court's decision to grant or deny a continuance 

for an abuse of discretion. See State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 

(1981). When evaluating a motion for a continuance, a court should consider: 

(1) the length of the delay requested, 

(2) whether other continuances have been requested and received, 

(3) the inconvenience to parties, witnesses, opposing counsel and the 

court, 

(4) the reason for the delay, 

(5) whether the party contributed to the circumstances that gave rise 

to the request for a continuance, 

(6) and any other relevant factors. 

In re E.A., 1st Dist. Hamilton No. C-130041, 2014-Ohio-280, ¶ 5, citing Unger at 67-

68. When considering the propriety of denying a motion for a continuance, this 

court considers the reasons presented at the time the request was denied. See In re 

Am. Transm. Sys., 125 Ohio St.3d 333, 2010-Ohio-1841, 928 N.E.2d 427, ¶ 32. 

{¶10} In this case, none of the Unger factors supported the denial of the 

motion. 
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{¶11} Length of the delay requested: As to the first prong, counsel’s request 

was for an hour delay. While it is not stated in the record, it is clear from the context 

that it was late morning when the request was made. At the very least, it was a time 

when the witnesses were still at school. 

{¶12} Other continuances: As to the second prong, counsel had not 

requested or received prior continuances, while the state had received two prior 

continuances. 

{¶13} Inconvenience to parties: Further, the inconvenience to the parties 

would have been minimal. The delay was requested sometime shortly before the 

lunch hour. The court could have recessed for that purpose, and this would have 

given witnesses the time requested. Since all the state’s witnesses had testified, the 

only parties impacted in any way would have been the attorneys, the judge, and the 

officer who was the state’s representative (who did not actually testify in the trial). 

While the trial court indicated it had other matters on its docket, those matters could 

have been addressed during the recess. Based on the context, the testimony of the 

two witnesses would not have taken long and the matter would still likely have been 

resolved that day. 

{¶14} Reason for the delay: Additionally, the reason for the delay was that 

the witnesses were in school. From the transcript, it appears that the witnesses were 

under the impression that the case might not go forward on that date, so they went to 

school. They had missed school for the two prior hearings, which had been 

continued at the state’s request. While the state notes that T.M. had been warned to 

have the witnesses there at the close of the state’s case, the record reflects that 

counsel had attempted to get them there, but the defense investigator was in another 

part of the county and would therefore be delayed getting the witnesses out of school 

and to court. 
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{¶15} Fault of party: Furthermore, it does not appear that T.M. 

contributed to the delay. They had been subpoenaed to be there at the beginning of 

trial. Counsel stated that “I expected them to be here. I certainly didn’t expect them 

to be at school.” While counsel suggested that T.M.’s father might have said 

something, there is no evidence that he did so at counsel’s request or that counsel 

knew they had been told this until the witnesses failed to appear. 

{¶16} Other factors: Finally, the record demonstrates that the request for a 

recess or continuance was not for the purpose of delay, to frustrate the proceedings, 

or to in any way attempt to gain an advantage. The testimony was important because 

none of the state’s witnesses provided clear testimony about what had occurred, and 

so the adjudication would be based on the credibility of these varied accounts. 

{¶17} Few cases find that a trial court abuses its discretion when it denies a 

motion for a continuance. But this court has previously found such an abuse of 

discretion. See In re R.W., 1st Dist. Hamilton Nos. C-130151 and C-130152, 2014-

Ohio-175, rev’d on other grounds, 140 Ohio St.3d 1433, 2014-Ohio-4160, 16 N.E.3d 

678. In that case, this court said: 

 Contrary to the belief of the trial court, the state had not 

sought a prior continuance because of the witness’s unavailability. 

While the witness was not present at the initial hearing, the case was 

continued at that time solely for the purpose of determining the proper 

judge to hear the case. The state had indicated that, while the witness 

was not present, she could be called if needed and could be in court in 

20 minutes. 

 According to the record, the witness was not available on 

February 20 because she had not been consulted about her availability 

when the date for the hearing had been set, and was scheduled to be 
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out-of-town on that day. The state shortly discovered the scheduling 

problem and asked for a continuance two weeks prior to the hearing 

date. Therefore, the state did everything possible to mitigate the 

situation and cannot be said to have contributed to the circumstances 

giving rise to the request such that a dismissal was proper. Further, 

there was no discussion of how the delay would inconvenience the 

parties, witnesses, or the court. 

 Under the facts of this case, we conclude that the trial court 

abused its discretion when it denied the state's request for a 

continuance and dismissed the case. 

Id. at ¶ 11-13. 

{¶18} Likewise, defense counsel in this case did “everything possible to 

mitigate the situation and cannot be said to have contributed to the circumstances 

giving rise to the request.” Since none of the factors weighed in favor of denying the 

request, the trial court abused its discretion when it denied the motion for a 

continuance. Under the specific facts of this case, we sustain T.M.’s first assignment 

of error. 

Weight and Sufficiency of Evidence and Disposition 

{¶19} Based on our determination of the first assignment of error, the 

second and third assignments of error related to sufficiency and weight of the 

evidence supporting the felonious assault adjudication are moot. We therefore 

decline to address them. See App.R. 12(A)(1)(c). The fourth assignment of error, 

relating to the trial court’s decision to send T.M. to DYS for that adjudication, was 

withdrawn by counsel. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Disposition of Unrelated Charge 

{¶20} In his fifth assignment of error, T.M. claims that the trial court erred 

when it ordered him to spend six months in DYS for conduct charged in an unrelated 

case without first giving him notice. At the same hearing in which it imposed the 

disposition for the felonious-assault charge, the trial court imposed the six-month 

term that had been previously suspended in the case numbered 17-6270Z. The state 

concedes that this was error because T.M. had not been notified of the probation 

violation pursuant to Juv.R. 35(B) prior to the trial court’s determination. We 

sustain T.M.’s fifth assignment of error. 

Conclusion 

{¶21} For the reasons set forth above, the trial court abused its discretion 

when it denied T.M.’s request for a one hour recess/continuance to allow two 

witnesses to be brought from school. The trial court also erred when it issued a 

disposition in case 17-6270Z without giving notice pursuant to Juv.R. 35(B). We 

sustain T.M.’s first and fifth assignments of error, reverse the trial court’s judgments, 

and remand the causes for further proceedings. 

Judgments reversed and causes remanded. 

ZAYAS and WINKLER, JJ., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.