[Cite as In re M.W., 2020-Ohio-3644.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: M.W. : JUDGES:
: Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. 2020 CA 0001
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Juvenile
Division, Case No. A2017-0751
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 6, 2020
APPEARANCES:
For Plaintiff-Appellant M.W. For Defendant-Appellee
BRADLEY P. KOFFEL WILLIAM C. HAYES
Koffel, Brininger, Nesbitt Licking County Prosecutor
1801 Watermark Drive, Suite 350
Columbus, Ohio 43215 By: Paula M. Sawyers
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 2020 CA 0001 2
Baldwin, J.
{¶1} Appellant M.W. appeals from the January 9, 2020 Judgment Entry of the
Licking County Court of Common Pleas, Juvenile Division. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} The relevant facts leading to this appeal are as follows:
{¶3} In early 2017, appellant, then age seventeen, briefly dated a fifteen-year-
old female (hereinafter “female victim” or “F.V.”). On one occasion during the time frame
of February-March 2017, F.V. performed oral sex on appellant while at his house.
Appellant recorded some of this conduct in video format on his iPhone. At some point
afterward, while the two were still dating, appellant told F.V. that he had sent a “buddy” a
video of the aforementioned oral sex act. See Tr. at 25-27 (adjudication testimony of F.V.).
{¶4} In October 2017, about seven months after appellant and F.V. broke up,
two of appellant's male classmates, C.H. and C.P., got into an argument during a
vocational class. One of these males, C.H., had also dated F.V. for a couple of months in
the fall of 2017. Appellant intervened in the argument by indicating he had something on
his phone which would make C.H. angry. After C.H. left the room, appellant showed a
portion of a video on his phone to C.P. and a bystander classmate, L.W. This video portion
included images of an erect penis and the face of F.V., albeit without showing physical
contact.
{¶5} School officials then came into the class to investigate. Appellant thereupon
gave the phone to another male juvenile, R.S., and asked him to delete certain recorded
images. Appellant indicated there was a video of F.V. performing oral sex on appellant
Licking County, Case No. 2020 CA 0001 3
and told him to delete it. R.S. instead left the phone on a bookshelf, and one of the
school's administrators secured it.
{¶6} On October 20, 2017, appellant was arrested. In the meantime, the phone
was provided to law enforcement officials.
{¶7} On October 23, 2017, a deputy from the Licking County Sheriff's Office filed
a complaint in the juvenile division alleging that appellant was a delinquent child. The
complaint listed the following counts:
{¶8} Count 1: Pandering sexually-oriented matter involving a minor, R.C.
2907.322(A)(1);
{¶9} Count 2: Disseminating matter harmful to a juvenile, R.C. 2907.31(A)(2);
Count 3: Attempted tampering with evidence, R.C. 2921.12(A)(1) and R.C. 2923.02(A).
{¶10} The juvenile court conducted an initial hearing on October 23, 2017.
Appellant remained in detention.
{¶11} On November 3, 2017, by agreement with the State of Ohio, the juvenile
court released appellant to reside with his father, under house arrest.
{¶12} On January 8, 2018, the court conducted a Juv.R. 29 adjudicatory hearing.
Via a judgment entry issued that day, appellant was adjudicated delinquent with respect
to each of the above three counts.
{¶13} On March 5, 2018, the court conducted a dispositional hearing and entered
a final judgment. Appellant was thereby committed to the Department of Youth Services
(“DYS”) for a minimum period of two years, as follows: twelve months on the pandering
count, six months on the dissemination count, and six months on the tampering count, all
consecutive to each other. The court also declared appellant a Tier II juvenile sex
Licking County, Case No. 2020 CA 0001 4
offender, with requirements for registration for twenty years and an in-person residence
verification every 180 days
{¶14} On March 14, 2018, appellant filed a notice of appeal. Appellant raised the
following assignments of error on appeal:
{¶15} “I. THE ADJUDICATION OF DELINQUENCY ON COUNT 1 IS NOT
SUPPORTED BY SUFFICIENT EVIDENCE AND IS CONTRARY TO THE MANIFEST
WEIGHT OF THE EVIDENCE.”
{¶16} “II. THE ADJUDICATION OF DELINQUENCY ON COUNT 2 IS NOT
SUPPORTED BY SUFFICIENT EVIDENCE AND IS CONTRARY TO THE MANIFEST
WEIGHT OF THE EVIDENCE.”
{¶17} “III. IF APPELLANT'S EXHIBITION OF THE VIDEO TO C.P. AND L.W.
WAS ‘HARMFUL TO JUVENILES’ WITHIN THE MEANING OF R.C. 2907.31(A)(2),
THEN THAT STATUTE IS UNCONSTITUTIONALLY VAGUE AND IRRATIONAL AS
APPLIED TO THE FACTS OF THIS CASE.”
{¶18} “IV. DESPITE EVID.R. 1002, THE JUVENILE COURT ALLOWED INTO
EVIDENCE AND RELIED UPON STATEMENTS DESCRIBING THE CONTENT OF THE
VIDEO.” “V. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY
HIS COUNSEL'S FAILURE TO OBJECT, BASED UPON EVID.R. 1002, TO THE
STATEMENTS DESCRIBING THE CONTENT OF THE VIDEO.” “VI. APPELLANT WAS
DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THE AGGREGATE.”
{¶19} “VII. THE DISPOSITIONAL ORDER CONSTITUTES AN ABUSE OF
DISCRETION.”
Licking County, Case No. 2020 CA 0001 5
{¶20} Pursuant to an Opinion filed on December 21, 2018 in In re M.W., 5th Dist.
Licking No. 2018 CA 0021, 2018-Ohio-5227, this Court affirmed the judgment of the trial
court in part and reversed and remanded the judgment in part. This Court sustained
appellant's second assignment of error and found appellant's third assignment of error to
be moot. We further found appellant's seventh assignment of error to be premature. This
Court remanded the matter for further dispositional proceedings in accordance with our
opinion and the law. This Court overruled appellant's Motion for Reconsideration and the
Ohio Supreme Court declined to accept the appeal for review. See In re M.W., 156 Ohio
St.3d 1465, 2019-Ohio-2892.
{¶21} On March 25, 2019, the trial court conducted another dispositional hearing.
At the conclusion of the hearing, the trial court stated that it was going to “reaffirm its prior
classification of appellant as a Tier II juvenile offender registrant and that it would review
such classification in six months. Transcript at 18. The trial court also placed appellant on
non-reporting probation for a period of six months. The trial court's decision was
memorialized in a Judgment Entry filed on March 25, 2019.
{¶22} Appellant then appealed. Pursuant to an Opinion filed on November 4,
2019, in In the Matter of M.W., 5th Dist. Licking No. 2019 CA 00020, 2019 -Ohio- 4564,
this Court reversed the judgment of the trial court and remanded the matter for further
proceedings. We found that the trial court, in the case sub judice, in classifying appellant,
did not make the findings necessary to classify the youth as a Tier II juvenile sex offender
registrant as required by R.C. 2152.83. We further found that in order to conduct a
meaningful review of the trial court's decision to classify appellant as a Tier II juvenile
offender registrant, we must be able to determine that the trial court considered all
Licking County, Case No. 2020 CA 0001 6
applicable statutory factors. We concluded that the record did not contain a sufficient
rationale to permit us to perform meaningful appellate review of the classification under
an abuse-of-discretion standard, reversed the dispositional order of the trial court, and
remanded the matter to the juvenile court for re-consideration of the juvenile-offender
registrant classification, for consideration of the statutory factors sufficient to permit us to
review the classification for an abuse of discretion.
{¶23} A dispositional hearing was held in the trial court on January 6, 2020. At the
hearing, the trial court denied appellant’s request that it find that the juvenile sex offender
registrant law is unconstitutional either on its face or as applied to the facts. The trial court
also denied appellant’s January 3, 2020 motion to dismiss the entire case pursuant to
Juv.R. 29(F)(2)(d) and Juv.R. 9.
{¶24} As memorialized in a Judgment Entry filed on January 9, 2020, the trial court
classified appellant as a Tier I juvenile offender registrant and rejected appellant’s
arguments that classification of him as a juvenile sex offender registrant was
unconstitutional as applied to the facts of this case. The trial court also denied appellant’s
motion to dismiss. The trial court held that appellant was no longer under court
supervision.
{¶25} Appellant now appeals, raising the following assignments of error on
appeal:
{¶26} “I. THE TRIAL COURT DECLINED TO CONSIDER THE MERITS OF
APPELLANT’S JANUARY 3, 2020 MOTION TO DISMISS.”
Licking County, Case No. 2020 CA 0001 7
{¶27} II. THE TRIAL COURT, REJECTING APPELLANT’S CONSTITUTIONAL
ARGUMENTS, CLASSIFIED APPELLANT AS A JUVENILE OFFENDER
REGISTRANT.”
I
{¶28} Appellant, in his first assignment of error, argues that the trial court erred in
declining to consider the merits of his Motion to Dismiss.
{¶29} Appellant, on January 3, 2020, filed a Motion to Dismiss pursuant to Juv. R.
29(F)(2)(d) and Juv.R. 9. Juv. R 29 states, in relevant part, as follows: “(F) Procedure
Upon Determination of the Issues. Upon the determination of the issues, the court shall
do one of the following:… (2) If the allegations of the complaint, indictment, or information
are admitted or proven, do any one of the following, unless precluded by statute:…(d)
Dismiss the complaint if dismissal is in the best interest of the child and the community.”
In turn, Juv.R. 9 states as follows: “(A) Court Action to Be Avoided. In all appropriate
cases formal court action should be avoided and other community resources utilized to
ameliorate situations brought to the attention of the court.”
{¶30} A juvenile court’s decision regarding dismissal of a complaint pursuant to
either of these sections will not be reversed absent an abuse of discretion. In Re D.S..
152 Ohio St.3d 109. 2017 -Ohio- 8289. In order to find an abuse of discretion, we must
determine that the trial court's decision was unreasonable, arbitrary, or unconscionable
and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217,
450 N.E.2d 1140 (1983).
{¶31} The trial court, in its January 9, 2020 Judgment Entry, found that the facts
of this case did not warrant dismissal. The court addressed the motion on the record and
Licking County, Case No. 2020 CA 0001 8
found that appellant’s adjudication had already been affirmed by this Court as to Counts
I and II and that dismissal was not appropriate.
{¶32} In the case sub judice, appellant committed the offense when he was 17
years old and the victim was 15 years old. At the January 6, 2020 hearing, there was
evidence that appellant had a history of inappropriate aggressive behavior, a lengthy
behavioral history with school, and a history of defying authority and of acting out
inappropriately with peers in aggression. Appellant had received infractions while at DYS
for not following staff directions. The trial court also noted that appellant had shown
pornography involving a minor to two other minors. Moreover, the trial court reviewed
report from 2 psychologists and noted that appellant continued to suffer from depression
and anxiety. We concur with appellee that these facts support the trial court’s discretion
and judgment in denying the motion to dismiss the complaints after a full adjudication on
a sexually oriented offense.
{¶33} We find that the trial court’s decision was not arbitrary, unconscionable or
unreasonable.
{¶34} Appellant’s first assignment of error is, therefore, overruled.
II
{¶35} Appellant, in his second assignment of error, argues that the trial court erred
in rejecting his constitutional arguments and in classifying him as a juvenile sex offender
registrant.
{¶36} Appellant initially argues that, as applied to the facts of this case, imposing
Ohio’s juvenile registration regime on him is “cruel and unusual” within the meaning of the
Eighth Amendment and the meaning of Article I, Section 9 of the Ohio Constitution.
Licking County, Case No. 2020 CA 0001 9
{¶37} 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.
{¶38} The Eighth Amendment to the United States Constitution states, “Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” “Central to the Constitution's prohibition against cruel and unusual
punishment is the ‘precept of justice that punishment for crime should be graduated and
proportioned to [the] offense.’ ” In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967
N.E.2d 729, at ¶ 25, quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544,
54 L.Ed. 793 (1910).
{¶39} The Ohio Constitution, Article I, Section 9, contains its own prohibition
against cruel and unusual punishment. It provides unique protection for Ohioans.
{¶40} The Ohio Constitution is a document of independent force. In the areas of
individual rights and civil liberties, the United States Constitution, where applicable to the
states, provides a floor below which state court decisions may not fall. As long as state
courts provide at least as much protection as the United States Supreme Court has
provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in
according greater civil liberties and protections to individuals and groups.
Licking County, Case No. 2020 CA 0001 10
{¶41} Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993), paragraph
one of the syllabus. Thus, the Ohio Constitution, Article I, Section 9, provides protection
independent of the protection provided by the Eighth Amendment.
{¶42} In its own jurisprudence regarding Article I, Section 9, the Ohio Supreme
Court has recognized that cases involving cruel and unusual punishments are rare,
“limited to those involving sanctions which under the circumstances would be considered
shocking to any reasonable person.” McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203
N.E.2d 334 (1964). Lack of proportionality is a key factor: “A punishment does not violate
the constitutional prohibition against cruel and unusual punishments, if it be not so greatly
disproportionate to the offense as to shock the sense of justice of the community.” State
v. Chaffin, 30 Ohio St.2d 13, 282 N.E.2d 46 (1972), paragraph three of the syllabus.
{¶43} Appellant argues that requiring him to register as a sex offender for 10 years
is cruel and unusual punishment because he was a juvenile at the time of the offense,
because his conduct was among the least egregious forms of the offenses in this case,
because he was a first time offender and because there was evidence before the trial
court that appellant had a low risk of reoffending.
{¶44} However, we cannot say that Ohio’s juvenile offender registration regime,
as applied to appellant, is “cruel and unusual.” Appellant, in this case, made a video of
him and the victim and showed it to other juveniles. There was evidence before the trial
court that appellant had a history of inappropriate, aggressive behavior, had a lengthy
history of behavioral issues in school and had a history of defying authority and acting out
inappropriately with peers. Appellant had received infractions while at DYS for failing to
follow staff directions and house rules. Moreover, appellant can, pursuant to R.C.
Licking County, Case No. 2020 CA 0001 11
2152.84, request declassification at the completion of his case and can, pursuant to
Section 2152.85, have his classification reviewed every three years.
{¶45} Appellant also argues that, “as applied” to the facts of this case, the
mandatory aspect of Ohio’s juvenile offender registration regime violates the Equal
Protection clauses of the Fourteenth Amendment and Article I, Section 2 of the Ohio
Constitution. Appellant notes that classification would not have been mandatory under
R.C. 2152.83(A) (1) if he had been 15 years old at the time of the offense rather than 17
years old. Appellant also argues that, as applied, the registration regime violates due
process.
{¶46} However, appellant has failed to meet the burden of presenting clear and
convincing evidence of a presently existing state of facts that make the statute
unconstitutional and void when applied to those facts. We concur with appellee that there
is nothing unique in this case that would set appellant apart from court rulings upholding
the constitutionality of the juvenile sex offender law. We also agree with the trial court that
there is no case law holding that the juvenile sex offender registrant law is unconstitutional
as applied to the facts herein. We note that we disagree with appellant’s assertion that
appellant’s conduct was “innocuous.”
{¶47} We further find that the trial court did not err in classifying appellant as a
juvenile offender registrant. The trial court had broad discretion to determine whether
appellant should be classified as a Tier I, Tier II or Tier III juvenile sex offender. See In
Re C.P., supra. In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Licking County, Case No. 2020 CA 0001 12
{¶48} In addition to the facts set forth above, there was evidence that appellant
had a history of inappropriate aggressive behavior, a lengthy behavioral school history, a
history of defying authority and of acting out inappropriately with other peers in
aggression. Appellant received infractions at DYS for not following staff direction and
house rules. As noted above, the age of the victims was 15 and appellant was 17.
Appellant showed pornography involving a minor to two other minors. Based on the
forgoing, we find that the trial court’s decision to classify appellant as a Tier I offender
was not arbitrary, unconscionable or unreasonable.
{¶49} Appellant’s second assignment of error, is, therefore, overruled.
{¶50} Accordingly, the judgment of the Licking County Court of Common Pleas,
Juvenile Division, is affirmed.
By: Baldwin, J.
Gwin, Scott, P.J. and
Delaney, Patricia, J. concur.