In re S.S. , 2011 Ohio 4081 ( 2011 )

[Cite as In re S.S., 2011-Ohio-4081.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
VINTON COUNTY
IN THE MATTER OF: [S.S.], :
:
Adjudicated Delinquent Child. : Case No: 10CA682
:
:
: DECISION AND
: JUDGMENT ENTRY
:
: File-stamped date: 8-12-11
APPEARANCES:
Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.
Mike Dewine, Ohio Attorney General, and Emily A. Pelphrey, Vinton County Special
Prosecutor, Columbus, Ohio, for Appellee.
Kline, J.:
{¶1} S.S., an adjudicated delinquent child, appeals the judgment of the Vinton
County Court of Common Pleas, Juvenile Division. The juvenile court adjudicated S.S.
to be delinquent for committing two counts of gross sexual imposition. On appeal, S.S.
contends that the state failed to prove the jurisdictional element of age. As a result,
S.S. argues that the juvenile court should have dismissed the case. Because proof of
S.S.’s age was adduced during the proceeding below, we disagree. Next, S.S.
contends that insufficient evidence supports his delinquency adjudication. Specifically,
S.S. claims that there is insufficient evidence of sexual arousal or gratification. We
disagree. After viewing the evidence in a light most favorable to the state, any rational
trier of fact could reasonably infer that S.S. acted with the purpose or intent of sexual
Vinton App. No. 10CA682 2
arousal or gratification. Finally, S.S. contends that the juvenile court should have
merged the delinquency adjudications under R.C. 2907.05(A)(4) and R.C. 2907.05(B).
We disagree for two reasons. First, the allied-offenses-of-similar-import statute does
not apply to juvenile proceedings. And second, even if the merger doctrine did apply,
there was no error because the juvenile court entered a single disposition for S.S.
Accordingly, we overrule S.S.’s assignments of error and affirm the judgment of the
juvenile court.
I.
{¶2} On July 2, 2010, S.S. and the victim both attended a party on the property of
the victim’s aunt (hereinafter the “Aunt”). The party was held outside, and the party
guests gathered on one side of the Aunt’s house. At the time of the party, S.S. was
thirteen-years old, and the victim was five-years old.
{¶3} The victim attended the party with her father (hereinafter the “Father”).
During the party, the Father noticed that he had not seen his daughter for awhile, so he
went looking for her. The Father then saw his daughter run towards the party area from
the back of the house. She was shaking and crying uncontrollably. At about the same
time, S.S. also returned to the party area from the back of the house.
{¶4} The Father ran towards his daughter and asked what happened. The victim
then pointed towards S.S. and kept saying “that boy.” After that, the Father handed the
victim to the Aunt and confronted S.S.
{¶5} The Aunt took the victim into the house. While inside, the victim said that
S.S. had put his hand inside her panties and touched her. The victim also said that S.S.
Vinton App. No. 10CA682 3
had scratched her with his fingernail. Based on this information, the Aunt called the
sheriff’s office.
{¶6} The Father took his daughter to the hospital, where a Sexual Assault Nurse
Examiner examined her. The examination revealed fresh blood from a cut near the
victim’s vaginal region.
{¶7} On August 25, 2010, a juvenile complaint charged S.S. with one count of
rape, one count of gross sexual imposition under R.C. 2907.05(A)(4), and one count of
gross sexual imposition under R.C. 2907.05(B).
{¶8} On September 3, 2010, S.S. filed a “FINANCIAL DISCLOSURE/AFFIDAVIT
OF INDIGENCY” form. In that form, S.S. listed his date of birth as July 12, 1996.
{¶9} On October 19, 2010, the juvenile court held an adjudicatory hearing. At the
end of the hearing, S.S. claimed that the state failed to prove the jurisdictional element
of age. As a result, S.S. argued that the juvenile court had to dismiss the case. The
juvenile court, however, disagreed.
{¶10} S.S. was adjudicated delinquent on both counts of gross sexual imposition –
one count under R.C. 2907.05(A)(4) and one count under R.C. 2907.05(B). However,
because there was no evidence of penetration, the juvenile court dismissed the rape
count.
{¶11} Following the dispositional hearing, the juvenile court committed S.S. “to the
Ohio Department of Youth Services for a term of six (6) months up until the juvenile
reaches the age of twenty-one (21).” November 10, 2010 Entry at 1. The juvenile
court, however, suspended that commitment “upon the successful completion of” the
Hocking Valley Community Residential Center. Id.
Vinton App. No. 10CA682 4
{¶12} S.S. appeals and asserts the following three assignments of error: I. “THE
STATE FAILED TO PROVE THE JURISDICTIONAL FACT OF AGE AT TRIAL.” II.
“THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUPPORT
ADJUDICATIONS OF DELINQUENCY.” And, III. “THE TRIAL COURT ERRED BY
ADJUDICATING [S.S.] TO BE A DELINQUENT CHILD FOR TWO SEPARATE
FELONY OFFENSES UPON A SINGLE ACT.”
II.
{¶13} In his first assignment of error, S.S. contends that the state failed to prove
“the jurisdictional element of age.” Appellant’s Brief at 8. Here, S.S. does not claim to
be over eighteen-years old. Moreover, S.S. does not argue that the juvenile court
actually lacked jurisdiction. Instead, S.S. contends that the juvenile court should have
dismissed the case because the state failed to prove his age.
{¶14} To resolve S.S.’s argument, we must interpret and apply R.C 2151.23(A)(1).
“When interpreting statutes and their application, an appellate court conducts a de novo
review, without deference to the trial court’s determination.” State v. Sufronko (1995),
105 Ohio App. 3d 504, 506. Under R.C 2151.23(A)(1), “The juvenile court has exclusive
original jurisdiction * * * [c]oncerning any child who on or about the date specified in the
complaint, indictment, or information is alleged * * * to be a juvenile traffic offender or a
delinquent, unruly, abused, neglected, or dependent child[.]” A “‘[c]hild’ means a person
who is under eighteen years of age[.]” R.C. 2151.011(B)(5).
{¶15} S.S. bases his argument on our decision in Matter of Patrick (May 13, 1987),
Scioto App. No. 1618. In Patrick, the juvenile court adjudicated a child to be delinquent.
On appeal, the child argued “that the trial court erred when it failed to grant appellant’s
Vinton App. No. 10CA682 5
motion at the end of the state’s case for the reason no evidence was presented as to
appellant’s age.” Id. Although this court overruled the child’s assignment of error, we
agreed with his basic argument. As a result, we found the following: “‘[I]n order for the
juvenile court to have jurisdiction of our appellant, it was incumbent upon the State to
allege and prove that appellant was within the age limits of its statutory jurisdiction.’ * * *
[Therefore, h]ad no proof of age been adduced at any time in the proceeding, a reversal
would have been required[.]” Id., quoting Miguel v State (Tex.Civ.App.1973), 500
S.W.2d 680, 681 (emphasis sic). S.S. contends that the state did not adduce proof of
his age. And for that reason, S.S. argues that the juvenile court was required to dismiss
the case.
{¶16} The state argues that we should essentially abandon Patrick and follow the
Sixth, Second, and Twelfth Appellate Districts. See In re Burton S. (1999), 136 Ohio
App.3d 386, 391-92; In re C.T., Montgomery App. No. 24036, 2010-Ohio-5887, at ¶11-
19; In re C.W., Butler App. No. CA2004-12-312, 2005-Ohio-3905, at ¶11-16.
{¶17} But here, we choose to reject S.S.’s argument without expressly overturning
Patrick. First, Patrick notes that “age is not an element in establishing delinquency, but
relates only to the jurisdiction of the court.” Patrick, citing In Re Fudge (1977), 59 Ohio
App 2d 129, 132. Patrick also states that proof of age must be “adduced at any time in
the proceeding[.]” Patrick (emphasis added). Significantly, a “proceeding” is “[t]he
regular and orderly progression of a lawsuit, including all acts and events between the
time of commencement and the entry of judgment.” Black’s Law Dictionary (9 Ed.2009)
(emphasis added). Therefore, in a juvenile case, a proceeding encompasses more than
just the adjudicatory hearing. And during the proceeding below, S.S. filed a
Vinton App. No. 10CA682 6
“FINANCIAL DISCLOSURE/AFFIDAVIT OF INDIGENCY” form. In that form, S.S.
stated that his date of birth is July 12, 1996. Furthermore, S.S. “certif[ied] that the
information [he] provided [in his] financial disclosure form [was] true to the best of [his]
knowledge.” Because of the information in this form, we find that proof of S.S.’s age
was adduced during the proceeding below.
{¶18} Thus, we find (1) that the juvenile court adhered to Patrick and (2) that the
requirements of R.C 2151.23(A)(1) were satisfied. Accordingly, we overrule S.S.’s first
assignment of error.
III.
{¶19} In his second assignment of error, S.S. contends that insufficient evidence
supports his adjudication of delinquency.
{¶20} “We apply the same standard of review for weight and sufficiency of the
evidence in juvenile delinquency adjudications as [we do] for adult criminal defendants.”
In re T.R., Guernsey App. No. 10CA2, 2010-Ohio-4419, at ¶11, citing In re R.G., Stark
App. No. 2009-CA-00218, 2010-Ohio-138, at ¶10. See, also, In re T.C., Washington
App. No. 09CA10, 2009-Ohio-4325, at ¶36. Therefore, when reviewing a case to
determine if the record contains sufficient evidence to support a delinquency
adjudication, we must “‘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. 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.’” State v.
Smith, Pickaway App. No. 06CA7, 2007-Ohio-502, at ¶33, quoting State v. Jenks
Vinton App. No. 10CA682 7
(1991), 61 Ohio St. 3d 259, at paragraph two of the syllabus. See, also, Jackson v.
Virginia (1979), 443 U.S. 307, 319.
{¶21} The sufficiency-of-the-evidence test “raises a question of law and does not
allow us to weigh the evidence.” Smith at ¶34, citing State v. Martin (1983), 20 Ohio
App.3d 172, 175. Instead, the sufficiency-of-the-evidence test “‘gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Smith
at ¶34, quoting Jackson at 319. This court will “reserve the issues of the weight given to
the evidence and the credibility of witnesses for the trier of fact.” Smith at ¶34, citing
State v. Thomas (1982), 70 Ohio St. 2d 79, 79-80; State v. DeHass (1967), 10 Ohio
St.2d 230, at paragraph one of the syllabus.
{¶22} The juvenile court adjudicated S.S. delinquent for violating both R.C.
2907.05(A)(4) and R.C. 2907.05(B). Under R.C. 2907.05(A)(4), “No person shall have
sexual contact with another, not the spouse of the offender * * * when * * * [t]he other
person * * * is less than thirteen years of age, whether or not the offender knows the
age of that person.” “‘Sexual contact’ means 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). And under R.C. 2907.05(B), “No person shall knowingly
touch the genitalia of another, when the touching is not through clothing, the other
person is less than twelve years of age, whether or not the offender knows the age of
that person, and the touching is done with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person.”
Vinton App. No. 10CA682 8
{¶23} Basically, S.S. makes the same argument under both R.C. 2907.05(A)(4) and
R.C. 2907.05(B). That is, S.S. claims that there is insufficient evidence of sexual
arousal or gratification. However, because any rational trier of fact could reasonably
infer that S.S. acted with the purpose or intent of sexual arousal or gratification, we
disagree.
{¶24} “While a touching, standing alone, may not be sufficient for a conviction, it can
be strong evidence of the offender’s intent.” In re Whitlock, Ashtabula App. No. 2008-A-
0018, 2008-Ohio-4672, at ¶23 (citation omitted). Furthermore, “[i]n determining whether
the contact was for purposes of sexual arousal or gratification, ‘the proper method is to
permit the trier of fact to infer from the evidence presented at trial whether the purpose
of the defendant was sexual arousal or gratification by his contact with those areas of
the body described in R.C. 2907.01. In making its decision the trier of fact may consider
the type, nature and circumstances of the contact, along with the personality of the
defendant. From these facts the trier of facts may infer what the defendant’s motivation
was in making the physical contact with the victim.’” State v. Bradley, Van Wert App.
No. 15-10-03, 2010-Ohio-5422, at ¶57, quoting State v. Huffman, Seneca App. No. 13-
2000-40, 2001-Ohio-2221 (other internal quotation omitted). See, also, State v. Cobb
(1991), 81 Ohio App. 3d 179, 185.
{¶25} In our view, any rational trier of fact could have reasonably inferred that S.S.
was motivated by his own sexual arousal or gratification. Here, the evidence shows (1)
that S.S. and the victim were both behind the Aunt’s house, away from the other party
guests; (2) that S.S. put his hand inside the victim’s panties; and (3) that S.S. made
contact with the victim’s pubic region. Touching the victim’s pubic region is strong
Vinton App. No. 10CA682 9
evidence of S.S.’s intentions. Whitlock at ¶23. Furthermore, in determining an
offender’s motivation, other courts have inferred sexual arousal or gratification from the
offender being alone with the victim. See, e.g., In re T.A.F., Medina App. No.
09CA0046-M, 2010-Ohio-3000, at ¶27; State v. Roberts, Hamilton App. No. C-040547,
2005-Ohio-6391, at ¶70. And finally, S.S. touched the victim’s pubic region vigorously
enough to cause injuries and bleeding. This vigorous touching supports an inference of
sexual arousal or gratification. Therefore, based on his actions and attempts at
secrecy, any rational trier of fact could have reasonably inferred that S.S.’s own sexual
arousal or gratification motivated the contact with the victim.
{¶26} Thus, after viewing the evidence in a light most favorable to the state, we find
that any rational trier of fact could have found all the essential elements of gross sexual
imposition proven beyond a reasonable doubt – under either R.C. 2907.05(A)(4) or R.C.
2907.05(B). Accordingly, we overrule S.S.’s second assignment of error.
IV.
{¶27} In his third assignment of error, S.S. contends that the juvenile court should
have merged the delinquency adjudications under R.C. 2907.05(A)(4) and R.C.
2907.05(B).
{¶28} R.C. 2941.25(A) provides: “Where the same conduct by defendant can be
construed to constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may be
convicted of only one.” R.C. 2941.25(A). S.S. argues that “R.C. 2941.25(A) should
have been applied” and that “[t]he adjudication should have been limited to a single
delinquent offense.” Appellant’s Brief at 15. The state agrees with S.S. and concedes
Vinton App. No. 10CA682 10
that “the case should be remanded to the Trial court for the limited purpose of
sentencing[.]” Brief of Appellee State of Ohio at 12. But here, we disagree with both
S.S. and the state.
{¶29} “Ohio Appellate Courts have held that R.C. 2941.25(A), which provides that
an adult offender indicted on two or more allied offenses of similar import may be
convicted of only one [of] the offenses, does not apply to juvenile delinquency matters.”
In re Bowers, Ashtabula App. No.2002-A-0010, 2002-Ohio-6913, at ¶17 (citations
omitted). See, also, In re Skeens (Feb. 25, 1982), Franklin App. Nos. 81AP-882 &
81AP-883. “The allied offenses statute is inapplicable because delinquency cases do
not charge juveniles with crimes, but with acts which, if committed by an adult, would
constitute a crime and thereby establish the juvenile delinquent.” In re H.F., Cuyahoga
App. No. 94840, 2010-Ohio-5253, at ¶13 (citations omitted). Here, we agree with these
courts and find that R.C. 2941.25(A) does not apply to the present case.
{¶30} Furthermore, we would find no error even if the merger doctrine did apply to
juvenile proceedings. This is so “because the trial court made only one disposition of
commitment to the Department of Youth Services[.]” In re B.O.J., Franklin App. Nos.
09AP-600, 09AP-601, & 09AP-602, 2010-Ohio-791, at ¶22, citing Skeens. As the Tenth
Appellate District observed, “‘The doctrine of merger prevents multiple convictions for
the same conduct, but it does not prevent the defendant from being found guilty of
multiple offenses arising out of the same conduct. As such, a jury can return separate
guilty verdicts on each offense, but the defendant can only be sentenced for one. By
analogy, the merger doctrine, to the extent that it applies to juvenile proceedings, does
not prevent a juvenile court, as trier of fact, from finding that the same conduct supports
Vinton App. No. 10CA682 11
multiple delinquency findings as long as the trial court enters one disposition for all such
delinquency findings resulting from the same criminal act.’” B.O.J. at ¶23, quoting In re
Durham (Sept. 17, 1998), Franklin App. No. 97APF12-1653.
{¶31} Here, the juvenile court entered a single disposition that committed S.S. “to
the Ohio Department of Youth Services for a term of six (6) months up until the juvenile
reaches the age of twenty-one (21).” November 10, 2010 Entry at 1. (The juvenile
court suspended S.S.’s commitment upon the successful completion of the Hocking
Valley Community Residential Center.) Therefore, because it entered a single
disposition for S.S., the juvenile court could not have violated the merger doctrine. See
B.O.J. at ¶24.
{¶32} Accordingly, we overrule S.S.’s third assignment of error. Having overruled
all of his assignments of error, we affirm the judgment of the juvenile court.
JUDGMENT AFFIRMED.
Vinton App. No. 10CA682 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Vinton County Court of Common Pleas, Juvenile Division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Abele, J.: Concurs in Judgment and Opinion.
McFarland, J.: Dissents.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.