[Cite as In re J.O., 2014-Ohio-2813.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
IN RE: J.O. :
: C.A. CASE NO. 25903
: T.C. NO. 2013-3848-01
: (Civil appeal from Common
Pleas Court, Juvenile
Division)
:
:
..........
OPINION
Rendered on the 27th day of June , 2014.
..........
KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
BROOKE M. BURNS, Atty. Reg. No. 0080256, Assistant State Public Defender, 250 East
Broad Street, Suite 1400, Columbus, Ohio 43215
Attorney for Defendant-Appellant
..........
DONOVAN, J.
[Cite as In re J.O., 2014-Ohio-2813.]
{¶ 1} Appellant J.O. appeals from a judgment of the Montgomery Court of
Common Pleas, Juvenile Division, which adjudicated him to be a delinquent for having
committed rape and designated him a Tier III juvenile sex offender/child victim offender.
J.O. filed a timely notice of appeal with this Court on September 6, 2013.
{¶ 2} The incident which formed the basis for the instant appeal occurred on May
11, 2013, when the victim, sixteen year-old S.H., attended a play rehearsal at her church.
Also attending the rehearsal was J.O. After the rehearsal was over, J.O., whom had known
S.H. for approximately two months, approached her and said, “You should give me a ride
home.” S.H. complied, and she and J.O. left the church in her car.
{¶ 3} While driving, S.H. and J.O. initially discussed an earlier situation where he
had swiped his hand over her vagina while she was retrieving her belongings from a closet at
their church. S.H. testified that she apologized to J.O. for the way she handled the situation.
Even though the touch was inappropriate and unwanted, S.H. testified that she told J.O. that
she regretted having her boyfriend handle the situation, instead of confronting J.O. herself.
S.H. also told J.O. that she had a “crush” on him when he first started attending their church.
{¶ 4} At that point, J.O. put his hand on her thigh and started rubbing it. When
S.H. asked him what he was doing, J.O. stated, “Well, isn’t it obvious?” J.O. asked S.H. to
give him a “blow job.” S.H. declined, stating, “that thing doesn’t come near my mouth.”
S.H. testified that J.O. started talking about having sex with her. S.H. testified that she told
J.O. that she was a virgin and was saving herself for marriage. Undeterred, J.O. pulled his
penis out of his pants, grabbed S.H.’s right hand, and placed her hand on his penis, moving it
up and down. S.H. pulled her hand away and placed it back on the steering wheel, stating,
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“Somebody can see.” J.O. replied, “Nobody can see.”
{¶ 5} J.O. also began repeatedly asking her to pull over somewhere so that they
could have sex. S.H. testified that J.O.’s tone of voice indicated to her that they were going
to do what he wanted to do “no matter what.” In response to his repeated demands to pull
over, S.H. testified that she was shaking her head no, but stated either, “I don’t know,” or “I
don’t care.” Eventually, J.O. was able to direct S.H. to drive to the back of a nearby parking
lot and stop between two tractor trailers where they ostensibly would not be seen.
{¶ 6} J.O. slid closer to S.H. and put his hand down her pants. S.H. testified that
J.O. placed his fingers in her vagina. J.O. then told S.H. that she should show him her
breasts. S.H. testified that because she felt intimidated and helpless, she complied with
J.O.’s request and pulled up her shirt. J.O. responded by putting his mouth on her breast.
{¶ 7} J.O. then told S.H. that they should get in the backseat of the car. When
S.H. asked why, J.O. stated, “Because it was easier.” S.H. testified that J.O.’s tone of voice
at that point was, “We’re going to do what I want to do.” Once in the backseat of the car,
J.O. told S.H. to take off her pants, but she said “No.” S.H. testified on direct that J.O. then
pushed her pants down while she was trying to pull them back up. On cross- examination,
S.H. admitted that in her statement to police she said that she took her pants off herself at
J.O.’s insistence.
{¶ 8} Nevertheless, once S.H.’s pants had been removed, J.O. pulled his penis out
of his pants. S.H. testified that she told him, “Don’t put that thing in me.” J.O replied, “I
won’t. I’ll only rub it on [your vagina].” J.O. then directed S.H. to remove her underwear,
but S.H. told him, “No.” J.O. simply moved her underwear aside and began rubbing his
4
penis on her vagina. While J.O. was doing that, S.H. testified that she kept telling him,
“No. Don’t. Stop.” J.O. stated “Just once.” S.H. said, “No.” J.O., however, proceeded to
insert his penis into S.H.’s vagina. S.H. testified that she struggled to get out from under
J.O., but he wouldn’t stop despite her repeatedly telling him, “No.” S.H. testified that J.O.
ultimately pulled out before ejaculating on her breast and a section of the backseat.
{¶ 9} S.H. put her clothes back on, got in the front seat of her car, and drove J.O.
to his house. S.H. returned to her house where she lived with her mother and father, and her
friend C.H. After some questioning regarding her sullen demeanor, S.H. informed C.H. that
J.O. had raped her. S.H. told C.H. that she “felt disgusting” and that she “didn’t do enough
to stop [the rape]” from occurring.
{¶ 10} On the following day, S.H. returned to the church to rehearse the play. J.O.
also attended the rehearsal. When he observed S.H., J.O. asked her if “she was still sore.”
S.H. told him to “shut the * * * up,” and she left the church. Upon returning home, S.H.
eventually told her parents that she had been raped. S.H.’s father immediately called the
police, and J.O. was arrested shortly thereafter.
{¶ 11} On May 31, 2013, J.O. was charged by complaint with delinquency for
committing forcible rape and gross sexual imposition. An adjudicatory hearing was held
before the juvenile court on July 9, 2013. After hearing the testimony of S.H. and C.H., the
juvenile court found J.O. responsible for the rape charge and not responsible for the charge
of gross sexual imposition. By reason of J.O.’s commission of the rape, the juvenile court
found that he had violated the terms of his probation in a previous case.1 On August 9,
1
J.O. was previously adjudicated delinquent for committing a rape in Case
5
2013, the juvenile court ordered J.O. to be committed to the Department of Youth Services
for a minimum of one year until he reached the age of twenty-one on the rape charge and for
a minimum of one year until he reached the age of twenty-one on the probation violation,
both commitments to be served consecutively. The juvenile court also designated J.O. as a
Tier III juvenile sex offender/child victim offender.
{¶ 12} It is from this judgment that J.O. now appeals.
{¶ 13} J.O’s first assignment of error is as follows:
{¶ 14} “THE MONTGOMERY JUVENILE COURT VIOLATED J.O.’S RIGHT
TO DUE PROCESS WHEN IT ADJUDICATED HIM DELINQUENT OF RAPE BASED
ON UNRELIABLE EVIDENCE THAT DOES NOT SUPPORT THE FINDING BEYOND
A REASONABLE DOUBT, IN VIOLATION OF THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION
16 OF THE OHIO CONSTITUTION, AND JUV. R. 29.”
{¶ 15} In his first assignment of error, J.O. contends that the juvenile court’s
decision finding him delinquent for committing rape was against the manifest weight of the
evidence. Specifically, J.O. argues that S.H.’s testimony was inconsistent and therefore,
lacked credibility. Additionally, J.O. asserts that some of the comments made by the
juvenile court when it adjudicated him delinquent for rape do not support its finding beyond
a reasonable doubt.
{¶ 16} “When a conviction is challenged on appeal as being against the weight of
the evidence, an appellate court must review the entire record, weigh the evidence and all
No. JC 2012-5789.
6
reasonable inferences, consider witness credibility, and determine whether, in resolving
conflicts in the evidence, the trier of fact ‘clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.’ ” State
v. Hill, 2d Dist. Montgomery No. 25172, 2013-Ohio-717, ¶ 8, quoting State v. Thompkins,
78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “A judgment should be reversed as being
against the manifest weight of the evidence ‘only in the exceptional case in which the
evidence weighs heavily against the conviction.’ ” Id., quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 17} In State v. Peterson, 2013-Ohio-1807, 992 N.E.2d 425 (10th Dist.), the
Tenth District Court of Appeals observed that:
In addressing a manifest weight of the evidence argument, we are able
to consider the credibility of the witnesses. State v. Cattledge, 10th Dist.
No. 10AP-105, 2010-Ohio-4953, ¶ 6. However, in conducting our review,
we are guided by the presumption that the jury, or the trial court in a bench
trial, “ ‘is best able to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.’ ” Id., quoting Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80 (1984). Accordingly, we afford great
deference to the jury's determination of witness credibility. (Citations
omitted.) Peterson at ¶ 12.
{¶ 18} Initially, we note that J.O. was found to be delinquent for committing
forcible rape, in violation of R.C. 2907.02(A)(2), which states in pertinent part:
7
(A)(2) No person shall engage in sexual conduct with another when
the offender purposely compels the other person to submit by force or threat
of force.
{¶ 19} When it found J.O. delinquent for raping S.H., the juvenile court made the
following statement:
The victim in this case has testified and shared information which
many of us would find very, very questionable in decision making and the
process that – that appeared to occur in this particular matter. At the same
time, there’s a lot of things that, to many of us, as adults, would say don’t
make a lot of sense at all. Yet, the testimony in this case also had what I call
a ring of truth.
{¶ 20} Additionally, after the juvenile court stated that S.H.’s testimony “had *** a
ring of truth to it,” it made the following statement regarding her testimony:
The Court finds that the testimony that has been presented lets the
Court find that [J.O.] is responsible beyond a reasonable doubt for the
charge of rape, or delinquency by reason of rape, in that there is clear
testimony, really undisputed, that the victim, at the time of the rape, said no,
no, no, no, no. And no, at anytime, means no. [J.O.] proceeded.
{¶ 21} J.O. argues that the juvenile court’s comment that S.H.’s testimony “had ***
a ring of truth to it,” establishes that her testimony was “so lacking in credibility that the
juvenile court’s adjudication of delinquency” was against the manifest weight of the
evidence. In support of his argument, J.O. directs our attention to certain inconsistencies
8
between S.H.’s testimony during direct examination and when she was cross-examined by
defense counsel. Upon review of the record, the only inconsistency between S.H.’s direct
testimony and cross-examination testimony occurred when she testified on direct that J.O.
pushed her pants down while she was trying to pull them back up after they got into the
backseat. On cross- examination, S.H. admitted that in her statement to police she said that
she took her pants off herself at J.O.’s insistence. We note, however, that contrary to J.O’s
assertion, S.H. never testified that she took off her underwear. Rather, S.H. testified that
after she expressly told him not to, J.O. pushed her panties aside and began rubbing his penis
on her vagina. S.H. testified that this occurred just before he inserted his penis into her
vagina, also after she had repeatedly told him “no.”
{¶ 22} S.H. unequivocally testified that the reason she complied with J.O’s initial
requests to pull over, take off her shirt, get in the back seat, and remove her pants was
because she felt intimidated and helpless. Before J.O. inserted his penis into her vagina,
S.H. testified that she told him “no” repeatedly and “don’t put that thing in me.” During the
sex act, S.H. testified that she continued to say “no” and tried unsuccessfully to push J.O. off
of her. Despite how many times S.H. asked him to stop, J.O. kept having sex with her until
he ejaculated.
{¶ 23} Based on this evidence, the trial court found that J.O. was delinquent for
raping S.H. Despite one minor inconsistency, S.H.’s testimony provided a sufficient basis
for the juvenile court to find the essential elements of the rape proven beyond a reasonable
doubt. Moreover, the juvenile court reasonably found S.H.’s version of the events to be
credible. On the record before us, we cannot conclude that the juvenile court clearly lost its
9
way and created a manifest miscarriage of justice.
{¶ 24} J.O’s first assignment of error is overruled.
{¶ 25} Because they are interrelated, J.O.’s second and third assignments of error
will be discussed together as follows:
{¶ 26} “THE MONTGOMERY COUNTY JUVENILE COURT ERRED WHEN
IT CLASSIFIED J.O. AS A TIER III JUVENILE OFFENDER REGISTRANT BECAUSE
THE IMPOSITION OF ANY CLASSIFICATION PERIOD THAT EXTENDS BEYOND
THE AGE JURISDICTION OF THE JUVENILE COURT VIOLATES A YOUTH’S
RIGHT TO DUE PROCESS AND CONSTITUTES CRUEL AND UNUSUAL
PUNISHMENT. EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION; OHIO CONSTITUTION, ARTICLE I, SECTION 16.”
{¶ 27} “J.O. WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF
COUNSEL WHEN COUNSEL FAILED TO CHALLENGE THE CONSTITUTIONALITY
OF A CLASSIFICATION THAT EXTENDED BEYOND THE JURISDICTION OF THE
JUVENILE COURT. FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.”
{¶ 28} In his second assignment, J.O. argues that his classification as a Tier III
juvenile sex offender/child victim offender registrant violates his right to due process of law
and the constitutional prohibition against cruel and unusual punishment. In his third
assignment, J.O. contends that his counsel was ineffective for failing to object to the trial
court’s decision to classify him as a Tier III juvenile sex offender because the designation
10
would extend past his attainment of twenty-one years of age and therefore, outside the age
jurisdiction of the juvenile court.
{¶ 29} Initially, we note that J.O. failed to object to the constitutionality of his
classification as a Tier III juvenile sex offender/child victim offender registrant at his
dispositional hearing. The State argues that J.O. waived appellate review of this issue
because he did not raise it in the juvenile court.
{¶ 30} “Failure to raise at the trial court level the issue of the constitutionality of a
statute or its application, which issue is apparent at the time of trial, constitutes a waiver of
such issue.” State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. However,
“[t]he waiver doctrine * * * is discretionary.” In re M.D., 38 Ohio St. 3d 149, 527 N.E.2d
286 (1988), syllabus. Even in a case of clear waiver, an appellate court may “consider
constitutional challenges to the application of statutes in specific cases of plain error or
where the rights and interests involved may warrant it.” Id.; see In re J.F., 178 Ohio App.3d
702, 2008-Ohio-4325, 900 N.E.2d 204, ¶ 84 (2d Dist.) (saying that “parties may raise plain
error on appeal, even where objections were not filed in juvenile court”). Courts will
consider unraised issues when doing so “best serve[s]” “the interests of justice.” In re
A.R.R., 4th Dist. Ross No. 09CA3105, 2009-Ohio-7067, ¶ 4.
{¶ 31} J.O. contends that his right to due process of law, as well as the
constitutional prohibition against cruel and unusual punishment, has been violated because
his classification as a Tier III juvenile sex offender imposes punitive sanctions upon him that
will extend past his twenty-first birthday, which is outside the age jurisdiction of the juvenile
court.
[Cite as In re J.O., 2014-Ohio-2813.]
{¶ 32} R.C. 2152.82(B)(1) states as follows:
(1) The judge shall include in the order a statement that, upon
completion of the disposition of the delinquent child that was made for the
sexually oriented offense or child-victim oriented offense upon which the
order is based, a hearing will be conducted, and the order and any
determinations included in the order are subject to modification or
termination pursuant to sections 2152.84 and 2152.85 of the Revised Code.
{¶ 33} Moreover, R.C. 2152.82(C) states in pertinent part:
(C) *** [A]n order issued under division (A) of the section and any
determinations included in the order shall remain in effect for the period of
time specified in section 2950.07 of the Revised Code, subject to a
modification or termination of the order under section 2152.84 or 2152.85 of
the Revised Code, and section 2152.851 of the Revised Code applies
regarding the order and the determinations. If an order is issued under
division (A) of this section, the child’s attainment of eighteen or twenty-one
years of age does not affect or terminate the order, and the order remains in
effect for the period of time described in this division.
{¶ 34} R.C. 2152.82 acts to continue the jurisdiction of the juvenile court to
classify juveniles beyond their twenty-first birthday. In re C.A., 2d Dist. Montgomery No.
23022, 2009-Ohio-3303. The legislature retains the power to define the jurisdiction of the
courts as long as powers inherently reserved for the judiciary are not infringed upon. Seventh
Urban, Inc. v. University Circle, 67 Ohio St.2d 19, 423 N.E.2d 1070 (1981). Laws limiting
rights, other than fundamental rights, are constitutional with respect to substantive due
12
process and equal protection if the laws are rationally related to a legitimate goal of
government. State v. Thompkins, 75 Ohio St.3d 558, 664 N.E.2d 926 (1996).
{¶ 35} J.O. argues that punishment is not one of the statutory purposes or goals of
R.C. Chapter 2950, but this does not mean that sex offender registration requirements may
not be imposed. The Ohio Supreme Court has said that “[p]unishment is not the goal of the
juvenile system, except as necessary to direct the child toward the goal of rehabilitation.” In
re Caldwell, 76 Ohio St.3d 156, 157, 666 N.E.2d 1367 (1996). Placing a juvenile in a
secure facility for several years is undoubtedly punishment. But courts may order juvenile
detention to achieve the goals of public protection and juvenile rehabilitation. Similarly,
while imposing R.C. Chapter 2950's registration and notification requirements may be
punishment, doing so may help achieve these same goals. In re I.A., 2d Dist Montgomery
No. 25078, 2012-Ohio-4973, ¶ 5.
{¶ 36} In the instant case, the classification authorized by R.C. 2152.82 as applied
to J.O. is not violative of his right to due process nor does its application result in cruel and
unusual punishment. There is no per se prohibition against Ohio juvenile courts imposing a
registration requirement that extends beyond a person’s attainment of age twenty one. State
ex rel. N.A. v. Cross, 125 Ohio St.3d 6, 2010-Ohio-1471, 925 N.E.2d 614. We note that
J.O. does not point to any procedural safeguards that are undermined by a juvenile’s
classification as a sex offender, the requirements of which continue after attainment of the
age of twenty-one. “Indeed, the fact that juvenile courts may review previous sex offender
classifications and dispense with them indicates that juvenile sex offenders receive greater
due process protection than adult sex offenders. See R.C. 2152.84(A)(2)(b) and R.C.
13
2152.85(A).” In re N.Z., 11th Dist. Lake No. 2012-L-100, 2014-Ohio-157, ¶¶ 38-45. In the
instant case, while J.O.’s designation as a Tier III sex offender was mandatory pursuant to
R.C. 2152.82(C), the juvenile court informed him at the dipositional hearing that his
designation could be modified or terminated altogether depending the progress he made
while at DYS. Accordingly, the juvenile court decision to designate J.O. a Tier III juvenile
sex offender did not violate his constitutional right to due process and to be free from cruel
and unusual punishment. Pursuant to R.C. 2152.82(C), the juvenile court had the
jurisdiction to designate J.O. as a Tier III juvenile sex offender even though that designation
could potentially extend past his attainment of twenty-one years of age.2
{¶ 37} Lastly, J.O. argues that his counsel’s failure to challenge the
constitutionality of the juvenile court’s designation of him as a Tier III juvenile sex offender
amounted to ineffective assistance of counsel. However, the juvenile court was required by
the explicit language in R.C. 2152.82 to designate J.O. a Tier III juvenile sex offender
because he had already been previously adjudicated delinquent for rape in Case No. JC
2012-5789. Moreover, we have concluded that J.O.’s constitutional rights were not
violated by his designation as a Tier III juvenile sex offender. J.O. is, therefore, unable to
2
We note that in In re Raheem L., the First District Court of Appeals held
that due process, under both the federal and Ohio Constitutions, did not prohibit
the legislature from punishing children for delinquency beyond their twenty-first
birthdays by classifying them as juvenile sex offender registrants under R.C.
2152.83(A) because no fundamental right was implicated, and the punishment
was rationally related to the government’s legitimate interest in enforcing its
criminal laws against juveniles. Id., 2013-Ohio-2423, 993 N.E.2d 455, ¶ 12 (1st
Dist.); discretionary appeal not allowed, 136 Ohio St.3d 1560, 2013-Ohio-4861,
996 N.E.2d 987.
14
establish that he was prejudiced by his counsel’s failure to challenge the constitutionality of
his designation. Accordingly, J.O. is unable to demonstrate that he received ineffective
assistance of counsel.
{¶ 38} J.O.’s second and third assignments of error are overruled.
{¶ 39} All of J.O’s assignments of error having been overruled, the judgment of the
trial court is affirmed.
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FAIN, J. and HALL, J., concur.
Copies mailed to:
Kirsten A. Brandt
Brooke M. Burns
Hon. Nick Kuntz