In re M.G.

[Cite as In re M.G., 2016-Ohio-2677.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

IN THE MATTER OF: M.G. :
CASE NO. CA2015-06-126
:
OPINION
: 4/25/2016

:

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JV2014-1740

D. Joseph Auciello, Jr., 306 South Third Street, Hamilton, Ohio 45011, for appellant

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

M. POWELL, P.J.

{¶ 1} Appellant, M.G., appeals a decision of the Butler County Court of Common

Pleas, Juvenile Division, adjudicating her delinquent for committing gross sexual imposition.

{¶ 2} Appellant was charged by complaint in the juvenile court with gross sexual

imposition in violation of R.C. 2907.05(A)(4), a third-degree felony if committed by an adult.

The complaint alleged that on one occasion between October 2013 and May 2014, appellant,

then 12 years old, had sexual contact with a 6-year-old girl ("the victim").

{¶ 3} On April 21, 2015, the juvenile court held a competency hearing to determine
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whether the victim was competent to testify. During the hearing, the juvenile court and the

prosecutor asked the victim questions related to her ability to recall information and to truly

relate her observations. Defense counsel did not question the victim when given the

opportunity to do so by the juvenile court. At the conclusion of the hearing, the juvenile court

found the victim competent to testify.

{¶ 4} The matter then proceeded to an adjudicatory hearing. During its case-in-chief,

the state presented the testimony of the victim, the victim's mother, the victim's paternal

grandmother, a detective, and a social worker who had conducted a forensic interview of the

victim on June 6, 2014, at the Mayerson Center at Cincinnati Children's Hospital. The

juvenile court also viewed the videotape of the victim's forensic interview.

{¶ 5} Testimony at the hearing revealed that the victim has been in the legal custody

of her paternal grandparents since shortly after she was born. However, the victim

maintained a relationship with her mother and visited with her on alternating weekends.

Between October 2013 and May 2014, the victim's visitation with her mother took place at

appellant's home where the victim's mother was temporarily residing. The incident in

question took place on a weekend during one of these visitations.

{¶ 6} The incident occurred in a closet in appellant's bedroom. The bedroom has no

door and is located across the hall from appellant's mother's bedroom. However, the closet

is situated so that it is not visible from outside of appellant's bedroom. Rather, as appellant's

mother testified, "if somebody was in the closet," "you would have to literally come into the

room [and] be in the room to see them."

{¶ 7} The victim testified that she and appellant were in appellant's bedroom and

somehow ended up in the closet. Inside the closet, appellant exposed one of her breasts

and made the victim suck on it. Appellant also used her finger to touch the victim's vagina,

which felt "weird," and appellant made the victim "itch" appellant's vagina with the victim's
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finger. During the incident, both were clothed, the touching was done under clothing, and

the closet door was closed. The victim could not remember what was in the closet. She also

did not remember the specific day it happened. The victim eventually told her grandmother

about the incident, although she could not remember when, where, or how, but she thought it

was important to tell her.

{¶ 8} The victim's grandmother stated the victim disclosed the incident to her in June

2014, after school was out. The victim's mother found out about the incident in the summer

of 2014 when the grandmother told her. The victim's mother described appellant's closet as

having "clothes and stuff on the bottom," not full of toys, not "packed full," and with sufficient

room to accommodate a child.

{¶ 9} The videotape of the victim's forensic interview was played during the hearing

and admitted into evidence. In the interview, the victim told the social worker that during one

of her weekend visits at appellant's house, appellant made her "have sex" with her and that it

bothered the victim. Specifically, while inside appellant's closet, appellant exposed one of

her breasts and made the victim suck on it and squeeze it, made the victim "itch" appellant's

"private part," and did the same thing to the victim. The victim demonstrated with her finger

how appellant wanted her to "itch" her "private part," and stated that when appellant "itched"

her vagina, it felt like the victim had to go to the bathroom even though she did not. The

victim stated that both were clothed during the incident and that the touching was done under

their clothing. The victim also stated she was able to leave the closet only after appellant

allowed her. The victim stated she eventually told her grandmother about the incident even

though she was a little scared to tell her. During the hearing, the social worker stated that

she does not typically ask a young child "about when something happened because * * * kids

are terrible with time [and] everything is yesterday or a long time ago."

{¶ 10} After the state rested its case, defense counsel presented the testimony of
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appellant and appellant's mother. Appellant denied getting in her closet with the victim or

asking the victim to have sex with her, and denied any inappropriate touching between the

two of them. Appellant initially denied spending time alone with the victim in her bedroom,

but later conceded there were times when she and the victim were alone in her bedroom.

With regard to her closet, appellant stated it only had old toys, cheerleading equipment, and

hangers; "the stuff in her closet was piled up knee high;" and as a result, it was difficult to

close the door or keep it closed. Appellant stated she could fit in her closet if it were empty,

and that she and a "really skinny" person could stand in the closet, side by side, shoulder to

shoulder.

{¶ 11} Appellant's mother related that appellant and the victim used to be close but

that the victim stopped coming to appellant's house at the end of March 2014. Appellant's

mother denied appellant and the victim were ever alone in appellant's bedroom and stated

they "were always in view of somebody," but later conceded the two girls had spent time

alone together. Appellant's mother claimed the closet was used solely as a storage place,

contained no clothes, and was "stuffed full" of old toys and hangers. As a result, a child

could not stand inside the closet without removing items, and emptying the closet would take

a "good twenty minutes."

{¶ 12} On April 21, 2015, the juvenile court adjudicated appellant delinquent for

committing gross sexual imposition. The juvenile court specifically stated it found the victim

"to be very believable [and] clearly competent." The juvenile court further stated it did not

find the testimony of appellant and appellant's mother to be credible.

{¶ 13} Appellant appeals, raising two assignments of error.

{¶ 14} Assignment of Error No. 1:

{¶ 15} THE TRIAL COURT ERRED BY FINDING [THE VICTIM] COMPETENT TO

TESTIFY.
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{¶ 16} Appellant argues the victim was incompetent to testify because she consistently

told the prosecutor she did not remember the events or facts related to the charge, and she

was unable to communicate these events without leading questions. Appellant also asserts

the voir dire examination of the victim was incomplete because the victim was "questioned

very little regarding her duty to tell the truth and unquestioned about whether * * * she knew

about accurate facts surrounding th[e] event."

{¶ 17} Evid.R. 601 provides that "[e]very person is competent to be a witness except *

* * children under ten years of age, who appear incapable of receiving just impressions of the

facts and transactions respecting which they are examined, or of relating them truly." It is the

duty of the trial court to conduct an examination of a child less than ten years old to

determine the child's competency to testify. State v. English, 12th Dist. Butler No. CA2013-

03-048, 2014-Ohio-441, ¶ 24. In making this determination, the trial court must consider (1)

the child's ability to receive accurate impressions of fact or to observe acts about which he or

she will testify, (2) the child's ability to recollect those impressions or observations, (3) the

child's ability to communicate what was observed, (4) the child's understanding of truth and

falsity and (5) the child's appreciation of his or her responsibility to be truthful. State v.

Frazier, 61 Ohio St.3d 247, 251 (1991).

{¶ 18} A child witness under ten years old may be competent to testify even though

the child is unable to recollect all of the facts of a given situation. State v. Fry, 125 Ohio

St.3d 163, 2010-Ohio-1017, ¶ 76. The child's answers must demonstrate that the child "can

perceive and recall generally and understands the concept of truthfulness." Id. A trial court's

finding that a child under the age of ten is competent to testify will not be disturbed, absent

an abuse of discretion. Frazier at 250-251; English at ¶ 25. An abuse of discretion is more

than an error of law or judgment, and instead connotes that the trial court's decision was

unreasonable, arbitrary, or unconscionable. Id.
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{¶ 19} Upon reviewing the record, we find that the juvenile court conducted an

adequate voir dire examination of the victim and did not abuse its discretion in finding the

victim was competent to testify.

{¶ 20} We initially note that appellant's claim that the victim was unable to remember

the events or facts related to the charge and to communicate these events without leading

questions, did not occur during the competency hearing. During that hearing, the juvenile

court did not question the victim regarding her recollection and ability to communicate

information related to the charge. Both Evid.R. 601 and the Frazier factors plainly reference

a child's ability to accurately communicate about the matters to which he or she will be called

to testify. Ohio courts have nonetheless recognized that making a general inquiry during a

competency hearing and asking general questions about the child's everyday life, as

opposed to questions related to the subject of the child's anticipated trial testimony, is a

proper method for a trial court to determine whether the child is competent to testify. See,

e.g., State v. McNeill, 83 Ohio St.3d 438 (1998); State v. Kelly, 93 Ohio App.3d 257 (5th

Dist.1994); and State v. Darrah, 12th Dist. Warren No. CA2006-09-109, 2007-Ohio-7080.

Consequently, in our analysis today, we follow the precedent of this court and other Ohio

courts that have affirmed a trial court's finding of competency in cases where the competency

hearing did not involve any questions about the offense at issue. State v. Goins, 12th Dist.

Butler No. CA2000-09-190, 2001 WL 1525298 (Dec. 3, 2001).

{¶ 21} The victim was almost eight years old at the time of the competency hearing.

Upon questioning, she was able to provide her name, the age of her brother, the identities of

the people she lived with, and the street and city where she resided. She was also able to

communicate her current grade at school, the name of her school, the name of her teacher,

her awareness of being in the courtroom, and why she was in court. Her answers also

showed she knew the difference between truth and falsity, understood the importance of
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telling the truth, and understood she should tell the truth.

{¶ 22} We therefore find that the juvenile court heard sufficient testimony to declare

the victim competent to testify and did not abuse its discretion in permitting her to testify.

English, 2014-Ohio-441 at ¶ 29. The victim's answers during the competency hearing

indicated she was able to receive, recall, and communicate accurate impressions of fact,

understand truth and falsity, and appreciate her responsibility to be truthful. A trial court "is in

the best position to determine child witness credibility, having an opportunity to observe the

child's appearance, manner of responding to questions, general demeanor, and ability to

recount facts accurately and truthfully." State v. Sprauer, 12th Dist. Warren No. CA2005-02-

022, 2006-Ohio-1146, ¶ 12; Frazier, 61 Ohio St.3d at 251. The juvenile court, which saw the

victim and listened to her testify, was in a far better position to determine her competency

than this court, which only reads her testimony from the record. State v. Clark, 71 Ohio St.3d

466, 470 (1994); State v. Anderson, 154 Ohio App.3d 789, 2003-Ohio-5439, ¶ 67 (7th Dist.).

In addition, the victim's testimony during the adjudicatory hearing, which was consistent with

the statements she made during her forensic interview, supports the juvenile court's

determination at the competency hearing that the victim was competent to testify.

{¶ 23} Appellant's first assignment of error is accordingly overruled.

{¶ 24} Assignment of Error No. 2:

{¶ 25} THE TRIAL COURT PREJUDICED [APPELLANT] BY ENTERING A GUILTY

FINDING FOR GROSS SEXUAL IMPOSITION CONTRARY TO THE MANIFEST WEIGHT

OF THE EVIDENCE.

{¶ 26} Under this assignment of error, appellant ostensibly argues her delinquency

adjudication for committing gross sexual imposition is not supported by sufficient evidence

and is against the manifest weight of the evidence because the state "failed to show the

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touching occurred and that any touching was for sexual arousal or gratification."1 Appellant

asserts that (1) the only evidence of gross sexual imposition came from the victim's trial

testimony; (2) the victim's testimony lacked significant details, had many inconsistencies, and

conflicted with the testimony of appellant and appellant's mother; and (3) the lack of physical

evidence contradicted the victim's testimony.

{¶ 27} The appropriate standard of review in determining whether there was sufficient

evidence presented to the juvenile court to support its adjudication of delinquency is the

same as the one used in adult criminal cases. See In re Washington, 81 Ohio St.3d 337,

339 (1998); In re A.L., 12th Dist. Butler No. CA2005-12-520, 2006-Ohio-4329, ¶ 11.

Accordingly, 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. McKnight, 107 Ohio St.3d 101,

2005-Ohio-6046, ¶ 70.

{¶ 28} The standard of review applied in determining whether a juvenile court's finding

of delinquency is against the manifest weight of the evidence is the same standard applied in

adult criminal convictions. In re M.J.C., 12th Dist. Butler No. CA2014-05-124, 2015-Ohio-

820, ¶ 28. Under the manifest weight of the evidence standard, a reviewing court must

examine the entire record, weigh all of the evidence and 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. Id. The discretionary power to grant a

new trial should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction. Id.

1. As captioned, appellant's second assignment of error solely challenges appellant's delinquency adjudication
as being against the manifest weight of the evidence. However, defense counsel seemingly challenges the
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{¶ 29} Because a finding that a conviction is supported by the manifest weight of the

evidence also necessarily includes a finding that it is supported by sufficient evidence, the

determination that a juvenile court's delinquency finding is supported by the manifest weight

of the evidence will also be dispositive of the issue of sufficiency. Id. at ¶ 29.

{¶ 30} Appellant was adjudicated delinquent for committing gross sexual imposition in

violation of R.C. 2907.05(A)(4), which provides in relevant part that:

No person shall have sexual contact with another, not the
spouse of the offender; [or] cause another, not the spouse of the
offender, to have sexual contact with 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.

{¶ 31} 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."

{¶ 32} Upon carefully reviewing the record, we find that the juvenile court did not err in

adjudicating appellant delinquent for committing gross sexual imposition. The victim's

testimony during the adjudicatory hearing and the statements she made during her forensic

interview show that appellant engaged in sexual contact with the six-year-old victim when,

while in appellant's bedroom closet, appellant touched the victim's vagina with her finger,

made the victim suck on her breast, and made the victim touch appellant's vagina with her

finger. The victim consistently testified that the incident happened only once.

{¶ 33} Appellant argues, however, that there was no evidence that any touching was

for sexual arousal or gratification. While an essential element of gross sexual imposition is

that the act was for the "purpose of sexual arousal or gratification," there is no requirement

that there be direct testimony regarding sexual arousal or gratification. State v. Robinson,

12th Dist. Clermont No. CA2015-01-013, 2015-Ohio-4533, ¶ 42. Rather, "[w]hether the

delinquency adjudication under this assignment of error as being also supported by insufficient evidence.
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touching was performed for the purpose of sexual arousal or gratification is a question of fact

to be inferred from the type, nature, and circumstances of the contact." State v. Williams,

12th Dist. Warren No. CA2012-08-080, 2013-Ohio-3410, ¶ 33. In making this determination,

"the trier of fact is permitted to infer what the defendant's motivation was in making the

physical contact with the victim." English, 2014-Ohio-441 at ¶ 69. Therefore, "[i]f the trier of

fact determines that the defendant was motivated by desires of sexual arousal or

gratification, and that the contact occurred, then the trier of fact may conclude that the object

of the defendant's motivation was achieved." State v. Pence, 12th Dist. Warren No. CA2012-

05-045, 2013-Ohio-1388, ¶ 72.

{¶ 34} In this case, the juvenile court could reasonably find, based on the victim's

testimony, that the touching between appellant and the victim was done for the purpose of

sexual arousal or gratification. The victim testified appellant made the victim suck on her

breast, made the victim touch appellant's vagina with her finger, and touched the victim's

vagina with her finger. The incident took place in appellant's bedroom closet, out of the view

of anyone located outside of the bedroom, and with the closet door closed. The victim's

testimony, which was consistent with the statements she gave to the social worker during her

forensic interview, supported an inference that appellant's actions were for the purpose of

sexually arousing or gratifying herself.

{¶ 35} Appellant also argues the lack of physical evidence contradicted the victim's

testimony. However, physical evidence of sexual contact is not a required element of gross

sexual imposition. In re M.J.C., 2015-Ohio-820 at ¶ 34. "Where the testimony of [a] child

victim is sufficient to support a conviction for gross sexual imposition, the conviction will not

be reversed as being against the manifest weight of the evidence merely because there was

no forensic evidence to support it." In re A.L., 2006-Ohio-4329 at ¶ 27. See also State v.

While, 11th Dist. Trumbull No. 2001-T-0051, 2003-Ohio-4594 (because sexual contact
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generally does not leave trace evidence, lack of physical evidence is neither surprising nor

fatal). The lack of physical evidence does not render the juvenile court's delinquency

adjudication contrary to the manifest weight of the evidence.

{¶ 36} Finally, appellant argues the victim's testimony at the adjudicatory hearing was

uncorroborated and inconsistent, lacked significant details, and conflicted with the testimony

of appellant and appellant's mother. However, determinations regarding witness credibility,

conflicting testimony, and the weight to be given such evidence are primarily for the trier of

fact. In re N.J.M., 12th Dist. Warren No. CA2010-03-026, 2010-Ohio-5526 ¶ 39. It is well-

established that when conflicting evidence is presented at trial, a conviction is not against the

manifest weight of the evidence simply because the trier of fact believed the prosecution

testimony. State v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17.

Further, "[t]he decision whether, and to what extent, to credit the testimony of particular

witnesses is within the peculiar competence of the factfinder, who has seen and heard the

witness." State v. Rhine, 2d Dist. Montgomery No. 23486, 2010-Ohio-3117, ¶ 39.

{¶ 37} As noted earlier, the juvenile court was able to see and hear the victim both

during the adjudicatory hearing and the victim's forensic interview. While the victim could not

remember specific details regarding the incident or details regarding appellant's bedroom and

her closet, the juvenile court nevertheless found the victim to be "very believable [and] clearly

competent," and found her testimony to be "very compelling." The juvenile court

acknowledged that while the victim "readily admitted she had forgotten [some things]," this

was to be expected as almost a year had passed. The juvenile court noted that the victim's

testimony was extremely consistent with her earlier forensic interview and rejected defense

counsel's claim that the incident was child's play. The juvenile court further found that neither

appellant's nor her mother's testimony were credible as "both have a great deal of motive to

being untruthful in this Court."
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{¶ 38} In light of the foregoing, we find that the juvenile court did not lose its way in

adjudicating appellant delinquent for committing gross sexual imposition. The state

presented evidence that appellant engaged in sexual contact with the six-year-old victim

when appellant touched the victim's vagina with her finger, made the victim suck on her

breast, and made the victim touch appellant's vagina with her finger. We therefore find that

the juvenile court's decision adjudicating appellant delinquent for gross sexual imposition is

not against the manifest weight of the evidence. As a result, we also find sufficient evidence

to support the juvenile court's decision.

{¶ 39} Appellant's second assignment of error is overruled.

{¶ 40} Judgment affirmed.

RINGLAND and PIPER, JJ., concur.

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