In re B.O. , 2017 Ohio 43 ( 2017 )


Menu:
  • [Cite as In re B.O., 
    2017-Ohio-43
    .]
    IN THE COURT OF APPEALS OF OHIO
    SIXTH APPELLATE DISTRICT
    HURON COUNTY
    In re B.O.                                        Court of Appeals No. H-16-022
    Trial Court No. SO 2015 00007
    DECISION AND JUDGMENT
    Decided: January 6, 2017
    *****
    Paul D. Dolce, for appellant.
    Daivia S. Kasper, Huron County Prosecuting Attorney, and
    Dina Shenker, Assistant Prosecuting Attorney, for appellee.
    *****
    YARBROUGH, J.
    I. Introduction
    {¶ 1} Appellant, B.O., appeals the judgment of the Huron County Court of
    Common Pleas, Juvenile Division, adjudicating him delinquent, placing him in the legal
    custody of the Department of Youth Services for a period of six months, and ordering
    him to serve 90 days in detention. We affirm.
    A. Facts and Procedural Background
    {¶ 2} On August 24, 2015, the state filed a delinquency complaint in the trial
    court, charging appellant 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. The complaint
    alleged that appellant, a 12 year old child at the time, touched his half sister’s vaginal
    area with his tongue and had her touch his penis with her hand. The victim was seven
    years old at the time of the offense.
    {¶ 3} Following preliminary discovery, appellant filed a motion to dismiss, in
    which he argued that the charges against him should be dismissed because the charges
    violated his constitutional rights. Specifically, appellant cited to a decision of the
    Supreme Court of Ohio that 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 is a strict liability crime. In re. D.B., 
    129 Ohio St.3d 104
    , 
    2011-Ohio-2671
    , 
    950 N.E.2d 528
    , syllabus. Charging only D.B. with
    statutory rape was found to be a violation of D.B.’s right to equal protection. Id. at ¶ 30.
    {¶ 4} Analogizing the elements of the statutory rape statute with those under R.C.
    2907.05(A)(4), appellant concluded that it was unconstitutional for the state to charge
    2.
    him with gross sexual imposition for nonforcible sexual contact with someone under the
    age of 13 where he was also under the age of 13.
    {¶ 5} Upon consideration of appellant’s argument, the trial court issued its
    decision on November 5, 2015. In its decision, the court noted that gross sexual
    imposition and statutory rape have different elements. In particular, the court concluded
    that gross sexual imposition, unlike statutory rape, is not a strict liability offense because
    it requires a showing that the perpetrator touched an erogenous zone of another for the
    purpose of sexually arousing or gratifying either person. Under the court’s reasoning,
    this additional mens rea element helped differentiate the victim from the offender in these
    cases and resolved the constitutional concern raised in In re D.B. concerning statutory
    rape. Ultimately, the court denied appellant’s motion to dismiss, and the matter
    proceeded through discovery.
    {¶ 6} On April 19, 2016, an adjudicatory hearing was held, and appellant was
    found to be delinquent. At his subsequent dispositional hearing, appellant was ordered to
    serve 90 days in detention, and was placed in the legal custody of the Department of
    Youth Services (DYS) for a period of six months. The trial court suspended 30 days of
    the detention sentence, as well as the six month DYS sentence, upon certain conditions.
    It is from this order that appellant has timely appealed.
    B. Assignment of Error
    {¶ 7} On appeal, appellant assigns the following error for our review:
    The trial court erred in denying the juvenile’s motion to dismiss.
    3.
    II. Analysis
    {¶ 8} In his sole assignment of error, appellant contends that the trial court
    erroneously denied his motion to dismiss. In support, he raises the same constitutional
    arguments he raised with the trial court; namely, that charging him with gross sexual
    imposition under R.C. 2907.05(A)(4) violates his constitutional rights to equal protection
    and due process as discussed regarding a charge of statutory rape in In re D.B. The state
    responds by noting that appellant has failed to cite to any authority that supports an
    extension of the Supreme Court’s holding in In re D.B. to cases involving gross sexual
    imposition under R.C. 2907.05(A)(4). On the contrary, the state notes that courts that
    have addressed this argument have universally found that R.C. 2907.05(A)(4) is
    constitutional as applied to offenders who are under the age of 13.
    {¶ 9} A party can challenge a statute as being unconstitutional on its face or as
    applied to a particular set of facts. Harrold v. Collier, 
    107 Ohio St.3d 44
    , 2005-Ohio-
    5334, 
    836 N.E.2d 1165
    , ¶ 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. at ¶ 38.
    {¶ 10} In In re K.C., 
    32 N.E.3d 988
    , 
    2015-Ohio-1613
     (1st Dist.), the court was
    presented with the same argument advanced by appellant in this case concerning the
    application of the holding in In re D.B. to gross sexual imposition cases involving
    juveniles under the age of 13. The court examined the Supreme Court’s rationale in In re
    4.
    D.B. and found it to be inapplicable to a charge of gross sexual imposition under R.C.
    2907.05(A)(4). Id. at ¶ 13. The court concluded that gross sexual imposition is not a
    strict liability offense since it requires proof of “sexual contact,” which is defined by
    statute 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.” R.C. 2907.01(B).
    {¶ 11} Upon review, we agree with our sister court that gross sexual imposition
    under R.C. 2907.05(A)(4) is not a strict liability offense. Indeed, the Supreme Court of
    Ohio has stated that the mens rea of purpose applies to the sexual-contact element of R.C.
    2907.05(A)(4). State v. Dunlap, 
    129 Ohio St.3d 461
    , 
    2011-Ohio-4111
    , 
    953 N.E.2d 816
    ,
    ¶ 23. The inclusion of a mens rea element distinguishes gross sexual imposition under
    R.C. 2907.05(A)(4) from statutory rape by “provid[ing] a way to differentiate between
    the victim and the offender.” In re K.C. at ¶ 13. Simply put, the victim and the offender
    in these cases are not treated alike because they are not similarly situated. The mens rea
    element forces the state to introduce evidence to demonstrate that the juvenile it has
    charged with the crime of gross sexual imposition was the offender. Therefore, the equal
    protection and due process concerns raised by the Supreme Court of Ohio in In re D.B.
    are not present here. See In re K.A., 8th Dist. Cuyahoga Nos. 98924, 99144, 2013-Ohio-
    2997, ¶ 11-12; In re T.A., 2d Dist. Champaign Nos. 2011-CA-28, 2011-CA-35, 2012-
    Ohio-3174, ¶ 26.
    5.
    {¶ 12} In light of the foregoing, we find no merit to appellant’s constitutional
    arguments concerning the application of R.C. 2907.05(A)(4) to juvenile offenders under
    the age of 13. Therefore, we hold that the trial court properly denied appellant’s motion
    to dismiss. Accordingly, appellant’s sole assignment of error is not well-taken.
    III. Conclusion
    {¶ 13} For the foregoing reasons, the judgment of the Huron County Court of
    Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the costs of
    this appeal pursuant to App.R. 24.
    Judgment affirmed.
    A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
    See also 6th Dist.Loc.App.R. 4.
    Arlene Singer, J.                               _______________________________
    JUDGE
    Stephen A. Yarbrough, J.
    _______________________________
    James D. Jensen, P.J.                                       JUDGE
    CONCUR.
    _______________________________
    JUDGE
    6.
    

Document Info

Docket Number: H-16-022

Citation Numbers: 2017 Ohio 43

Judges: Yarbrough

Filed Date: 1/6/2017

Precedential Status: Precedential

Modified Date: 1/9/2017