[Cite as In re J.W., 2011-Ohio-3744.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
IN RE: J. W. C.A. No. 10CA009939
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
JUVENILE DIVISION
COUNTY OF LORAIN, OHIO
CASE No. 09 JD 28295
DECISION AND JOURNAL ENTRY
Dated: August 1, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} Fourteen-year-old J.W. allegedly made nine-year-old T.W. touch his penis and
put it in his mouth and, also, allegedly, touched T.W.’s penis. Following a hearing before a
magistrate, the juvenile court adjudicated J.W. a delinquent child for committing rape and gross
sexual imposition. J.W. has appealed, assigning as error that the juvenile court incorrectly
refused to let him examine T.W.’s mental health records, that his adjudication is against the
manifest weight of the evidence, and that the court failed to properly review the magistrate’s
decision. We affirm because J.W. did not have the right to participate in the magistrate’s in
camera review of T.W.’s mental health records, his adjudication is not against the manifest
weight of the evidence, and the juvenile court correctly reviewed the magistrate’s findings of fact
and conclusions of law.
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FACTS
{¶2} T.W. is the youngest of three brothers. All three live with their mother, but go to
their grandparents’ house after school. J.W. lives down the street from the grandparents’ house
and often played with the boys. Although J.W. is closer in age to T.W.’s brothers, he most often
played with T.W. Two of their favorite activities were to play video games in J.W.’s bedroom
and bounce on a trampoline in the grandparents’ backyard.
{¶3} According to T.W., one day in the spring of 2008, he had just beaten J.W. at a
video game when J.W. began talking to him in a strange voice. J.W. told him to put his hand
down the front of J.W.’s pants and touch J.W.’s penis. T.W. complied. J.W. then put his hand
down T.W.’s pants and touched him. Next, J.W. pulled his pants down and told T.W. to put his
penis in his mouth. T.W. did so for about a minute, and then suggested that the two of them go
jump on the trampoline. While on the trampoline, J.W. unzipped his pants and told T.W. to
touch his penis again. T.W. complied, but he stopped when T.W.’s grandfather called him to
come into the house for dinner.
{¶4} T.W. did not tell his mother about the incidents until almost a year later. At the
time, T.W. was in therapy for obsessive compulsive disorder. T.W.’s mother told the therapist
about the incidents, but the therapist recommended that they wait a couple months to tell the
police until T.W. was on medication for anxiety. According to the detective who investigated
T.W.’s allegations, J.W. admitted there were incidents between T.W. and him in his bedroom
and on the trampoline, but said it was T.W. who had tried to touch him. At the adjudication
hearing, J.W. also testified that it was T.W. who tried to initiate sexual contact with him, but that
he had pushed his hand away each time because it was not appropriate.
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{¶5} A magistrate found T.W.’s testimony credible and J.W.’s testimony not credible
and recommended that J.W. be adjudicated delinquent. J.W. objected to the magistrate’s
decision, but the juvenile court overruled his objections. It found J.W. to be a delinquent child
and placed him on community control. J.W. has assigned three errors on appeal.
MENTAL HEALTH RECORDS
{¶6} J.W.’s first assignment of error is that the juvenile court violated his right to due
process when it denied his motion to review T.W.’s mental health records. Before the
adjudicatory hearing, J.W. moved for the release of T.W.’s mental health records, arguing that,
in light of T.W.’s delay in reporting J.W.’s alleged conduct to the police, the records might
contain information that would help his defense. In particular, he argued that the records might
help him challenge J.W.’s veracity and determine whether the therapist used improper or
suggestive methods while counseling T.W. The magistrate subpoenaed the records from T.W.’s
therapist and reviewed them in camera. Determining that nothing in the records would be
material to J.W.’s defense, the magistrate denied his motion.
{¶7} To determine whether the records should be released, the magistrate applied State
v. McGovern, 6th Dist. No. E-08-066, 2010-Ohio-1361. In McGovern, the Sixth District noted
that the United States Supreme Court has held that a defendant’s right to a fair trial “entitle[s] the
defendant to an in camera review by the trial court of . . . confidential records in order to
determine whether the records contain evidence material to the accused’s defense.” Id. at ¶28
(citing Pennsylvania v. Ritchie, 480 U.S. 39, 60-61 (1987)). Following several other districts, it
held that “[t]he proper procedure in determining the availability of confidential records is for the
trial court to conduct an in camera inspection to determine: (1) whether the records are
necessary and relevant to the pending action; (2) whether good cause has been shown by the
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person seeking disclosure; and (3) whether their admission outweighs the confidentiality
considerations.” Id.
{¶8} J.W. has not argued that it was incorrect for the magistrate to have relied on
McGovern, recognizing that he had himself relied on the case in his motion. He also specifically
suggested in his motion that “[t]he [c]ourt could order [T.W.’s mental health] documents be
produced [i]n [c]amera[.]” J.W.’s argument, instead, is that the magistrate should have allowed
his lawyer to participate in the in camera inspection, similar to the procedure for out-of-court
witness statements under Former Rule 16(B)(1)(g) of the Ohio Rules of Criminal Procedure.
According to J.W., unless a juvenile’s lawyer is allowed to participate in the inspection, he can
not tell the magistrate why certain documents are “necessary and relevant” or why there is “good
cause” for their disclosure. State v. McGovern, 6th Dist. No. E-08-066, 2010-Ohio-1361, at ¶28.
He has argued that the magistrate’s failure to allow his lawyer to participate in the review
violated his due process rights, particularly his right to counsel.
{¶9} Initially, we note that, in his motion, J.W. suggested that the magistrate could
review T.W.’s medical records in camera and did not ask to participate in the inspection. An “in
camera inspection” means “[a] trial judge’s private consideration of evidence” and does not
contemplate participation by the parties. Black’s Law Dictionary 775 (8th Ed. 2004).
Accordingly, any error by the juvenile court appears to have been invited by J.W. State ex rel.
Bitter v. Missig, 72 Ohio St. 3d 249, 254 (1995) (“Under the invited-error doctrine, a party will
not be permitted to take advantage of an error which he himself invited or induced the trial court
to make.”). Nevertheless, we will address the merits of J.W.’s argument.
{¶10} In In re C.S., 115 Ohio St. 3d 267, 2007-Ohio-4919, the Ohio Supreme Court held
that a juvenile’s right to due process “is not a technical conception with a fixed concept unrelated
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to time, place, and circumstances,” but “expresses the requirement of ‘fundamental fairness[.]’”
Id. at 80 (quoting Lassiter v. Dep’t of Social Servs. of Durham County, N. C., 452 U.S. 18, 24-25
(1981)). The Ohio Supreme Court noted that “[a]pplying the Due Process Clause is therefore an
uncertain enterprise which must discover what ‘fundamental fairness’ consists of in a particular
situation by first considering any relevant precedents and then by assessing the several interests
that are at stake.” Id. (quoting Lassiter, 452 U.S. at 24-25). “A court’s task is to ascertain what
process is due in a given case . . . while being true to the core concept of due process in a
juvenile case—to ensure orderliness and fairness.” Id. at ¶81.
{¶11} In Pennsylvania v. Ritchie, 480 U.S. 39 (1987), the State’s protective service
agency investigated allegations that Mr. Ritchie had committed various sexual offenses against
his minor daughter. Mr. Ritchie subpoenaed the agency’s investigation records, but the agency
refused to produce them, arguing they were confidential. The trial court refused to order the
agency to produce the records, but the Pennsylvania Supreme Court reversed, holding that the
denial violated Mr. Ritchie’s right to confrontation and compulsory process. The United States
Supreme Court granted certiorari.
{¶12} A majority of the justices were unable to agree on whether the agency’s failure to
disclose the records implicated Mr. Ritchie’s right to confrontation. A majority did agree,
however, that the decision affected his right to compulsory process. Noting that it had
traditionally analyzed a defendant’s right to compulsory process under the Due Process Clause
and that its precedent on the fundamental fairness of trials provided a clear framework for
review, it adopted a due process analysis for purposes of the case. Pennsylvania v. Ritchie, 480
U.S. 39, 56 (1987).
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{¶13} The Supreme Court noted that the government has an obligation to turn over
materials that are favorable to a defendant and material to guilt or punishment. Pennsylvania v.
Ritchie, 480 U.S. 39, 57 (1987). But it also acknowledged the State’s interest in the
confidentially of its investigative records. While the Supreme Court agreed that the State had a
strong interest in protecting the sensitive information contained in the records, it noted that the
State’s confidentially law contained exceptions, leading it to conclude that the Pennsylvania
legislature had “contemplated some use of [the agency’s] records in judicial proceedings.” Id. at
58. It did not, however, require the agency to give Mr. Ritchie unsupervised access to files
because that “could have a seriously adverse effect on Pennsylvania’s efforts to uncover and treat
abuse.” Id. at 60. Weighing Mr. Ritchie’s right to due process against the State’s confidentiality
interests, it concluded that Mr. Ritchie’s “interest . . . in ensuring a fair trial can be protected
fully by requiring that the [agency] files be submitted only to the trial court for in camera
review.” Id. “Although this rule denies [Mr.] Ritchie the benefits of an ‘advocate’s eye,’ we
note that the trial court’s discretion is not unbounded. If a defendant is aware of specific
information contained in the file . . . , he is free to request it directly from the court, and argue in
favor of its materiality.” Id.
{¶14} This case involves an accused’s right to due process, similar to Ritchie. Unlike
that case, it involves mental health records of a licensed therapist instead of investigative records
of a child protective services agency. There is little substantive difference, however, because
T.W.’s mental health records are confidential under state law, just like the records at issue in
Ritchie. See R.C. 2317.02(B)(1) & (G)(1); R.C. 4732.19. The purpose of Ohio’s confidentiality
laws is to encourage mental and physical health by allowing patients to speak candidly with their
health care providers without fear that the matters will later become public. See Ward v. Summa
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Health Sys., 128 Ohio St. 3d 212, 2010-Ohio-6275, at ¶24. As in Ritchie, the confidentiality of
the documents is subject to certain statutory exceptions. Accordingly, we are faced with
circumstances very similar to Ritchie.
{¶15} The United States Supreme Court determined that the way to balance a
defendant’s right to due process with the State’s interest in confidentiality is to allow the trial
court to review the records in camera to determine whether they contain any favorable, material
evidence. Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987). The Supreme Court specifically
rejected the notion that the defendant could participate in the review. Id. Mr. Ritchie has not
persuaded us that his right to the disclosure of T.W.’s mental health records is stronger than was
Mr. Ritchie’s right to protective service agency records or that the State of Ohio’s interest in
patient confidentiality is any less important than Pennsylvania’s interest in investigating child
abuse. He has also failed to convince us that an in camera review of T.W.’s mental health
records fails to protect his rights. We note that he has not cited any precedent in which a court
has allowed a defendant to participate in an in camera review, outside of the context of Rule 16
of the Ohio Rules of Criminal Procedure, under which it is expressly allowed. Crim. R. 16(F).
{¶16} The magistrate and juvenile court reviewed T.W.’s records and determined that
they did not contain anything that was material and favorable to J.W.’s defense. We also have
reviewed the records and conclude that their decision was correct. J.W.’s first assignment of
error is overruled.
MANIFEST WEIGHT
{¶17} J.W.’s second assignment of error is that the juvenile court’s delinquency
adjudication is against the manifest weight of the evidence. Because juvenile adjudications are
characterized as civil in nature, the Ohio Supreme Court has applied the civil manifest weight of
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the evidence standard. In re Sekulich, 65 Ohio St. 2d 13, 16 (1981) (“Judgments supported by
some competent, credible evidence going to all the essential elements of the case will not be
reversed by a reviewing court as being against the manifest weight of the evidence.”).
Recognizing the similarities between a delinquency adjudication and a criminal conviction,
however, this Court has applied the criminal manifest weight of the evidence standard. In re
M.H., 9th Dist. No. 09CA0028, 2009-Ohio-6911, at ¶11-12; In re R.D.U., 9th Dist. No. 24225,
2008-Ohio-6131, at ¶5-6. Under that standard, we “must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses 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. Otten, 33 Ohio App. 3d 339, 340 (1986).
{¶18} J.W. has argued that T.W.’s testimony was unbelievable for several reasons. He
has noted that other children testified that T.W. had lied to them about having had sex with one
of his teachers. T.W. also incorrectly interpreted an innocent act by a child with whom he was
wrestling as “dry hump[ing].” And T.W. made up a story about having to jump out a window at
a friend’s house to escape from J.W. and a couple of Rottweilers. J.W. has also argued that
T.W.’s grandfather, who testified that J.W. appeared to zip up his pants after the incident on the
trampoline, always disliked him. He has further argued that T.W.’s mother repeatedly told T.W.
that, if he ever said that someone had improperly touched him, she would believe him
completely.
{¶19} Regarding the wrestling incident, the only testimony about it was by T.W.’s
mother, who said that it allegedly happened while the children were playing in the dark and that
she doubted that the other child, who was not J.W., had any type of sexual intent. Regarding
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T.W.’s story about his teacher, even if he told such a story to other children, it was reasonable for
the magistrate and juvenile court to determine that it had no affect on his credibility regarding
what J.W. allegedly did to him. T.W. did not discuss his sexual conduct with J.W. with other
children, and J.W. admitted that there was an incident involving an attempt at sexual touching
between the two of them.
{¶20} Regarding T.W.’s escape story, T.W. testified that several months after the
incidents in J.W.’s bedroom and on the trampoline, he was at his grandparent’s house again
when he decided to visit his friend J.E., whose family was moving that day. He said that, when
he got to J.E.’s house, J.W. was there. J.W. gave him a kiss, then picked him up and carried him
into the house. T.W. did not want to be around J.W. so he tried to leave the house, but J.W. was
near the front door and there were a couple of Rottweilers outside the back door and they scared
him. He testified that he explained the situation to J.E., who told him that he could leave through
one of the windows. J.E. testified that, although she saw T.W. outside on the day her family
moved, he did not enter her house or leave it through a window. She also testified that it would
have been impossible for him to have seen any dogs at her house that day because her father had
already taken them so that they would not be in the way while her family packed. She further
testified that there were childproof locks on the windows of the house.
{¶21} J.E. testified that she had dated J.W., so the magistrate could have considered
her biased. We have reviewed the record and conclude that the magistrate did not lose her way
when she determined that T.W. was credible and that J.W. was not. J.W.’s second assignment of
error is overruled.
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JUVENILE RULE 40(D)
{¶22} J.W.’s third assignment of error is that the juvenile court incorrectly failed to
undertake an independent review of the matters he objected to before determining whether the
magistrate had properly determined the facts and appropriately applied the law. Under Rule
40(D)(4)(d) of the Ohio Rule of Juvenile Procedure, “[i]f one or more objections to a
magistrate’s decision are timely filed, the court shall rule on those objections. In ruling on
objections, the court shall undertake an independent review as to the objected matters to
ascertain that the magistrate has properly determined the factual issues and appropriately applied
the law.”
{¶23} Under Juvenile Rule 40(D)(4)(d), “[i]t is the primary duty of the court, and not the
referee, to act as a judicial officer.” Normandy Place Assocs. v. Beyer, 2 Ohio St. 3d 102, 105
(1982) (referring to identical requirement under Rule 53(D)(4)(d) of the Ohio Rules of Civil
Procedure). “In order for the trial court to maintain its independence, it is of utmost importance
that it carefully examine any report before it for errors. Accordingly, we reject any concept
which would suggest that a trial court may in any way abdicate its function as judge over its own
acts. . . . [T]he trial court has the responsibility to critically review and verify to its own
satisfaction the correctness of such a report.” Id. The Supreme Court has cautioned trial courts
“against the practice of adopting referee’s reports as a matter of course, especially where a
referee has presided over an entire trial.” Hartt v. Munobe, 67 Ohio St. 3d 3, 6 (1993).
{¶24} Although a juvenile court has a duty to independently review the evidence, it may
give deference to the magistrate’s credibility findings. “[If] a magistrate comments on credibility
and the trial court does not take additional evidence . . . ‘the judgment of the magistrate on issues
of credibility is, absent other evidence, the last word on the issue for all practical purposes.’”
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Mandelbaum v. Mandelbaum, 2d Dist. No. 21817, 2007-Ohio-6138, at ¶103 (quoting Quick v.
Kwiatkowski, 2d Dist. No. 18620, 2001 WL 871406 at *4 (Aug. 3, 2001); see also MacConnell v.
Nellis, 2d Dist. No. 19924, 2004-Ohio-170, at ¶16 n.1 (indicating that a trial court does not
improperly defer to the magistrate where it gives “some deference to the magistrate’s credibility
determinations,” but also independently considers the evidence before it). As explained in
Desantis v. Soller, 70 Ohio App. 3d 226, 233 (1990), “[t]he trial court, when considering a
referee’s report, may have little, if any, greater advantage in determining the credibility of the
witnesses than this court would upon review of the trial court’s decision. The trial court, like a
reviewing court, is limited to reviewing witnesses’ testimony in the form of a written transcript,
and lacks the advantage of physically viewing the witnesses in order to aid in determining
truthfulness.”
{¶25} J.W. has argued that the juvenile court did not comply with Juvenile Rule 40(D)
because it cited Seasons Coal Co. Inc. v. City of Cleveland, 10 Ohio St. 3d 77 (1984), for the
idea that “[d]eference should be given to the trier of fact in the determination of the weight and
importance of the evidence.” According to J.W., the court gave the magistrate’s decision more
deference than allowed under Juvenile Rule 40(D).
{¶26} On its face, the sentence citing Seasons Coal appears to give the magistrate too
much deference. A trial court is not allowed to defer to the magistrate in determining the weight
and importance of evidence. See Juv. R. 40(D)(4)(d) (providing that the court must “undertake
an independent review . . . to ascertain that the magistrate has properly determined the factual
issues”). We must consider the sentence, however, in the context of the entire paragraph in
which it appears. The juvenile court wrote: “‘The demeanor of the witnesses, the timing of the
responses and facial expressions are matters bearing on credibility and observable by the trier of
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fact but not a reviewing court.’ State v. Ely (1978), 56 Ohio St.2d 169. ‘Deference should be
given to the trier of fact in the determination of the weight and importance of the evidence.’
Seasons Coal Co., Inc. v. City of Cleveland. Thus, the court will not disturb the Magistrate’s
findings as to the witnesses’ credibility or lack thereof.”
{¶27} Although the juvenile court’s sentence citing Seasons Coal appears to give the
magistrate’s decision too much deference regarding the weight of the evidence, the rest of the
paragraph shows that the only deference the court actually gave the magistrate was in his
determination of the witnesses’ credibility, which was proper. Quick v. Kwiatkowski, 2d Dist.
No. 18620, 2001 WL 871406 at *4 (Aug. 3, 2001). Because the outcome of this case depended
on whether T.W. was credible, the juvenile court’s adoption of the magistrate’s credibility
finding led, necessarily, to its determination that J.W. was a delinquent child. We conclude that
J.W. has failed to show that the court gave improper deference to the magistrate’s findings of
fact and conclusions of law. J.W.’s third assignment of error is overruled.
CONCLUSION
{¶28} J.W. did not have a due process right to have his lawyer participate in the in
camera review of T.W.’s mental health records. The juvenile court properly reviewed the
magistrate’s decisions and its delinquency adjudication is not against the manifest weight of the
evidence. The judgment of the Lorain County Common Pleas Court, Juvenile Division, is
affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
WHITMORE, J.
CONCURS
BELFANCE, P.J.
CONCURS IN JUDGMENT ONLY, SAYING:
{¶29} With respect to the majority’s resolution of the first assignment of error, I
concur in its judgment. J.W. requested an in camera inspection of the records without
requesting that his counsel be involved in that inspection. Thus, I agree that any error by
the court in failing to involve J.W.’s counsel was invited by J.W., and therefore, J.W.’s
argument is properly overruled. Accordingly, I find the remainder of the analysis
involving the first assignment of error to be unnecessary.
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APPEARANCES:
HOLLACE B. WEIZEL, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and ERIN K. MEYER, Assistant Prosecuting
Attorney, for Appellee.