In re J.T. , 2018 Ohio 457 ( 2018 )

[Cite as In re J.T., 2018-Ohio-457.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY
IN RE:
CASE NO. 11-17-03
J.T.,
OPINION
ADJUDICATED DELINQUENT CHILD.
Appeal from Paulding County Common Pleas Court
Juvenile Division
Trial Court No. 20162084
Judgment Affirmed
Date of Decision: February 5, 2018
APPEARANCES:
Timothy C. Holtsberry for Appellant
Matthew A. Miller for Appellee
Case No. 11-17-03
ZIMMERMAN, J.
{¶1} This is an appeal from the Paulding County Court of Common Pleas,
Juvenile Division’s April 26, 2017 judgment entry of adjudication and July 7, 2017
judgment entry of disposition. Appellant, J.T. (“Appellant”), appeals.
Facts and Procedural History
{¶2} On September 19, 2016, a complaint was filed in the Paulding County
Juvenile Court alleging that the (then) 9-year-old Appellant committed one count of
gross sexual imposition against 7-year-old C.M. The complaint stems from an
incident that occurred on August 10, 2016.
{¶3} The record reveals that on August 10, 2016, Appellant was with his
legal custodian, Sharon Van Vlerah (“Sharon”) at C.M.’s house. Appellant and
C.M. were swimming while Sharon and Patricia Gillett (“Patricia”), C.M.’s mother,
visited. After swimming, Appellant and C.M. ate dinner, and then ‘disappeared’.
Patricia noticed the kids were not swimming in the pool, or playing on the
trampoline so she went looking for them. She ultimately found Appellant and C.M.
in a bathroom with the door locked.
{¶4} When locating Appellant and C.M., Patricia demanded to know what
they were doing in the bathroom and ordered them to unlock the door. After the
door was unlocked, Patricia entered the bathroom and saw Appellant pulling his
shorts up and noticed that he had an erection. When Patricia questioned what the
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two were doing, C.M. started crying and Appellant stated “the same thing that I was
doing on the trampoline”.1 (Tr. 11).
{¶5} Later that evening, Patricia took C.M. to Defiance ProMedica to have
him medically checked. However, she was informed that the facility did not handle
children and was advised to take C.M. to Toledo ProMedica. Once at Toledo
ProMedica, C.M. was examined and a rape kit was secured from him. During the
medical examination, it was determined that C.M. had a recent tear to his anus. (Tr.
23-24). C.M.’s medical report was forwarded to the Paulding County Sheriff’s
office, along with a phone call (from Toledo ProMedica) to advise the Sheriff’s
office of the incident.
{¶6} Thereafter, Deputy Wobler of the Paulding County Sheriff’s office
interviewed Appellant about the incident. At the adjudicatory hearing, Deputy
Wobler testified that Appellant admitted to ‘humping’ C.M. Appellant also told
Deputy Wobler that first C.M. ‘humped’ him and then they turned around and
Appellant ‘humped’ C.M. Appellant further admitted (to Deputy Wobler) to having
an erection and to penetrating C.M.’s anus. (Tr. 67-68).
{¶7} Ultimately, a complaint was filed against Appellant in the trial court
charging him with one count of gross sexual imposition, in violation of R.C.
2907.05(A)(4), a felony of the third degree if committed by an adult. (Doc. 1).
1
In the transcript, there is reference to an earlier incident wherein J.T. tried to ‘hump’ C.M. on the trampoline.
(Tr. 14).
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{¶8} On February 27, 2017, Appellant filed a motion to dismiss the
complaint in the trial court (Doc. 15). Appellant argued that the charge of gross
sexual imposition should be dismissed because the statute, as applied to him, was
unconstitutional. Specifically, Appellant cited the decision of the Supreme Court
of Ohio in In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, in which it held that
R.C. 2907.02(A)(1)(b), the statutory rape statute, was unconstitutional as applied to
a child under the age of 13 who engaged in sexual conduct with another child under
the age of 13 because both children would technically be guilty under the statute
since statutory rape was a strict liability statute.
{¶9} The trial court disagreed with Appellant’s argument and overruled the
motion. (Doc. 17). In its decision, the trial court concluded that since statutory rape
(the charge in D.B.) and gross sexual imposition (the charge herein) have different
culpable mental states, the constitutional concerns raised by the Supreme Court of
Ohio in D.B. were not present in this case.
{¶10} Ultimately the case was set for an adjudicatory hearing on April 5,
2017 wherein Appellant was found by the trial judge to be a delinquent child for
violating R.C. 2907.05(A)(5) and the case was scheduled for disposition, pending a
pre-disposition investigation. At disposition, Appellant was placed on probation
with the juvenile court. He was also ordered to attend counseling and to successfully
complete the CARE Program at the Marsh Foundation, a juvenile sex offender
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treatment program. It is from the adjudicatory and dispositional entries that
Appellant appeals, raising two assignments of error.
Assignment of Error No. I
R.C. 2907.05(A)(4) IS UNCONSTITUTIONAL AS APPLIED TO
A CHILD UNDER THE AGE OF 13, WHO ALLEGEDLY
ENGAGED IN SEXUAL CONTACT WITH ANOTHER CHILD
UNDER THE AGE OF 13. (Trial Transcript pp. 66-67, 73-77).
Assignment of Error No. II
THE TRIAL COURT ERRED IN FINDING THE APPELLANT
WAS IN VIOLATION OF R.C. 2907.05(A)(4) WHEN OHIO
LAW DOES NOT ALLOW THE MEMBER OF A PROTECTED
CLASS OF A CRIMINAL LAW TO BE FOUND IN
VIOLATION OF THAT LAW. (Trial Transcript pp. 8-15, 66-67,
73-77).
{¶11} We find Appellant’s assignments of error to be interrelated and
therefore, we will address them together.
Standard of Review
{¶12} This case requires both the interpretation of a statute and its
constitutionality, which are issues of law we review de novo. State v. Hudson, 3d
Dist. Marion No. 9-12-38, 2013-Ohio-647, citing State v. Consilio, 114 Ohio St.3d
295, 2007-Ohio-4163. “De Novo review is independent, without deference to the
lower court’s decision.” Id. , citing Ohio Bell Tel. Co. v. Pub. Util. Comm. Of Ohio,
64 Ohio St.3d 145, 147 (1992).
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{¶13} Further, a party may challenge a statute as being unconstitutional on
its face or as applied to a particular set of facts. In re B.O., 6th Dist. Huron No. H-
16-022, 2017-Ohio-43, citing Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-
5334, ¶37. The party contending that a statute is unconstitutional as applied bears
the burden to present clear and convincing evidence of a presently existing state of
facts that make the statute unconstitutional and void when applied to those facts. Id.{¶14} We note, however, R.C. 2721.12(A) prevents the courts in the State of
Ohio from determining the constitutionality of a statute unless that issue is raised in
the pleadings and the Ohio Attorney General is served with such pleadings. This
ensures that the Attorney General, an interested party every time the
constitutionality of a statute is challenged, is given the opportunity to defend the
constitutionality of such statute. See generally, Mraz v. D & E Counseling Center,
7th Dist. Mahoning No. 01 CA 176, 2002-Ohio-5213. Such did not occur in the
case before us. Nevertheless, we will turn our attention to the assignments of error.
Analysis
{¶15} In his assignments of error, Appellant argues that a violation of R.C.
2907.05(A)(4) is unconstitutional as applied to a child under the age of thirteen
because it violates due process and equal protection rights. Further, Appellant
asserts that a child under the age of thirteen cannot be found to have violated R.C.
2907.05(A)(4) because such child is a member of a protected class under that statute.
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Specifically, Appellant contends that his conviction for gross sexual imposition
violated his constitutional rights because R.C. 2907.05(A)(4) protected victims
under the age of 13, and because he was under 13 when the offense occurred, the
application of the statute is unconstitutionally vague. We disagree.
{¶16} In his argument, Appellant relies on D.B., supra. In D.B., a 12-year-
old child was found to be delinquent for committing the offense of statutory rape
against a child under the age of 13, in violation of R.C. 2907.02(A)(1)(b). R.C.
2907.02(A)(1)(b) provides that “anyone who engages in sexual conduct with a
minor under the age of 13 commits statutory rape regardless of whether force was
used”. Sexual conduct, as defined in R.C. 2907.01(A), “means vaginal intercourse
between a male and female; anal intercourse, fellatio, and cunnilingus between
persons regardless of sex; and, without privilege to do so, the insertion, however
slight, of any part of the body or any instrument, apparatus, or other object into the
vaginal or anal opening of another. Penetration, however slight, is sufficient to
complete vaginal or anal intercourse.” R.C. 2907.01(A).
{¶17} In D.B., the Supreme Court of Ohio held:
As applied to children under the age of 13 who engage in sexual
conduct with other children under the age of 13, R.C.
2907.02(A)(1)(b) is unconstitutionally vague because the statute
authorizes and encourages arbitrary and discriminatory
enforcement. When an adult engages in sexual conduct with a
child under the age of 13, it is clear which party is the offender
and which is the victim. But when two children under the age of
13 engage in sexual conduct with each other, each child is both an
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offender and a victim, and the distinction between those two terms
breaks down. In re D.B., supra, at ¶24.
{¶18} Furthermore, the Supreme Court of Ohio determined that the
application of the statutory-rape statute violated D.B.’s rights to equal protection
and that under the plain language of the statute “every person who engages in sexual
conduct with a child under the age of 13 is strictly liable for statutory rape, and the
statute must be enforced equally and without regard to the particular circumstances
of an individual’s situation”. In re K.C., 1st Dist. Hamilton No. C-140307, 2015-
Ohio-1613, ¶9, citing D.B., supra. The Supreme Court determined that because
D.B. and the victim were both under the age of 13, “they were both members of the
class protected by the statute, and both could have been charged under the offense.
Application of the statute in this case to a single party violates the Equal Protection
Clause’s mandate that persons similarly circumstanced shall be treated alike”. Id.{¶19} However, the case sub judice is distinguishable from D.B. because
Appellant was adjudicated a delinquent child for committing gross sexual
imposition, in violation of R.C. 2907.05(A)(4), not for committing statutory rape.
As such, Appellant’s charge involved sexual contact, not sexual conduct.
{¶20} The charge of gross sexual imposition, R.C. 2907.05(A)(4) provides
that “[n]o person shall have sexual contact with another, not the spouse of the
offender; cause another, not the spouse of the offender, to have sexual contact with
the offender; or cause two or more other persons to have sexual contact when * * *
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the other person, or one of the other persons, is less than thirteen years of age,
whether or not the offender knows the age of that person”. (Emphasis added). And,
R.C. 2907.01(B) defines “sexual contact” as “any touching of an erogenous zone of
another, including without limitation the thigh, genitals, buttock, pubic region, or,
if the person is a female, a breast, for the purpose of sexually arousing or gratifying
either person". (Emphasis added).
{¶21} In State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111, the Supreme
Court of Ohio addressed the culpable mental state of gross sexual imposition
involving children under the age of 13. The Supreme Court determined that “the
applicable mens rea of sexual contact, as defined in R.C. 2907.01(B), is purpose”.
Id. at ¶26. (Emphasis added). Conversely, statutory rape is a strict-liability offense
and does not require a culpable mental state. Statutory rape strictly prohibits
engaging in sexual conduct with a person under the age of 13, as opposed to
engaging in sexual contact with a person under 13 for the purpose of sexual arousal
or gratification in a gross sexual imposition charge.
{¶22} Thus, even though both the statutory rape and the gross sexual
imposition statutes [under section (A)(4)] involve protecting children under the age
of 13, gross sexual imposition requires proof of a specific culpable mental state.
Specifically, gross sexual imposition, pursuant to R.C. 2907.05(A)(4) requires that
the offender engage in sexual contact with the “purpose” to cause sexual arousal or
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gratification, which differs from the strict-liability standard of statutory rape. Thus,
the existence of the culpable mental state of “purpose” provides the avenue to
differentiate a victim from an offender when both participants are less than 13 years
in age.
{¶23} In the case before us, there was no arbitrary or discriminatory
enforcement of the law against Appellant because only he exhibited evidence of
sexual arousal or gratification from his sexual contact with C.M. pursuant to the
evidence submitted at trial. The record reflects that when Appellant and C.M. were
found in the bathroom together, only the Appellant had an erection, while C.M. was
crying. As such, under the evidence adduced at trial, the trial court was presented
with evidence to distinguish whether the Appellant was a victim or an offender of
gross sexual imposition.
{¶24} In our de novo review, we find that competent and credible evidence
is present in the record to support the trial court’s adjudication of Appellant for gross
sexual imposition. Evidence that the Appellant was the person “driving the
incident” in the bathroom; that C.M. was afraid of the Appellant; that Appellant
admitted to “humping” C.M.; and that the Appellant was observed to have an
erection, exists in the record and supports that trial court’s adjudication of Appellant
as a delinquent child for committing the act of gross sexual imposition upon C.M.
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{¶25} Moreover, we find that the Appellant failed to present clear and
convincing evidence of a presently existing state of facts that makes the gross sexual
imposition statute unconstitutional and void when applied to the Appellant.
Accordingly, Appellant’s assignments of error are not well taken and are overruled.
{¶26} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, the judgment of the Paulding County Common
Pleas Court, Juvenile Division is hereby affirmed.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jlr
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