In re C.A.
Rendered on the 2nd day of July, 2009.
JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ANTONY A. ABBOUD, Atty. Reg. No. 0078151, 130 W. Second Street, Suite 1818, Dayton, Ohio 45402
Attorney for Defendant-Appellant
FROELICH, J.
{¶ 1} C.A., a juvenile, appeals from his adjudication as a delinquent in the Montgomery County Court of Common Pleas, Juvenile Division, for rape of a child under age 13, a first degree felony if committed by an adult, and from the trial court’s classification of C.A. as a Tier III sex offender.
{¶ 3} For the following reasons, the juvenile court’s adjudication will be affirmed. The matter will be remanded for a new classification hearing consistent with this opinion.
I
{¶ 4} The evidence presented at the adjudication hearing reveals the following facts.
{¶ 5} In June 2008, fifteen-year-old C.A. was a resident of the Center for Child and Family Development (“CCFD“) in Zanesville, Muskingum County, Ohio. On June 20, 2008, C.A. moved from a room on the second floor to a room on the third floor. T.B., another fifteen-year-old resident, helped C.A. move his clothes and mattress upstairs. Once C.A.’s belongings were on the third floor, C.A. and T.B. engaged in anal and oral sex in C.A.’s room. T.B. testified that he consented to this sexual encounter.
{¶ 6} After C.A. and T.B.’s sexual activity, C.A. obtained lotion from the dayroom on the third floor and asked T.E., an eleven-year-old who was watching television in the dayroom, to help him in his room. T.E. agreed and entered C.A.’s room. C.A. asked T.B. to leave. T.B. left the room, went to his own room, and did not return.
{¶ 8} On June 30, 2008, Detective Randy Ritchason, a 28-year veteran of the Zanesville police department, interviewed C.A., T.E., and T.B. During the interview with C.A., Ritchason identified himself, read C.A. his Miranda rights, and told C.A. that he was following up on a report of a sexual assault involving two other juveniles. Ritchason informed C.A. that he was a suspect. C.A. responded that the police lie and that he did not want to talk without an attorney. Ritchason ended the interview and informed C.A. that he was being charged with rape. C.A. responded, “Why? They consented.” Amanda McGlumphy, a therapist at CCFD, was present during the interview with C.A., and she also heard C.A.’s statement that the sexual encounters were consensual.
{¶ 9} On July 2, 2008, the Zanesville police department filed a complaint against C.A. in the Muskingum County Court of Common Pleas, Juvenile Division, alleging that C.A. had committed rape, in violation of
{¶ 10} On September 10, 2008, the Muskingum County Juvenile Court held an adjudication hearing, during which T.E., T.B., Detective Ritchason, and others testified on behalf of the State. C.A. did not present any witnesses. At the conclusion of the hearing, the trial court found C.A. to be delinquent for the rape of T.E. and, on the State’s motion, dismissed the menacing charge. The Muskingum County Juvenile Court transferred the matter to Montgomery County, where C.A. is a resident, for disposition.
{¶ 11} The Montgomery County Juvenile Court held dispositional and classification hearings on September 26, 2008. During the dispositional hearing, the court found that C.A. was delinquent for having committed rape, an act which would constitute a first degree felony if committed by an adult, and it committed C.A. to the Department of Youth Services for a minimum of 12 months and a maximum period not to exceed when C.A. became 21 years old. The court ordered DYS to review C.A.’s eligibility for placement at Lighthouse Youth Center - Paint Creek for residential treatment in Ross County. C.A. was also ordered to submit a DNA sample.
{¶ 12} At the beginning of the classification hearing, the court asked the counsel if they would “waive the need for testimony.” The parties responded affirmatively, and no testimony was presented. The juvenile court judge informed C.A. that he was required to classify him as a juvenile offender registrant due to a prior adjudication and disposition of a sex offense and, because this adjudication was a first-degree felony rape, the court was required to classify him as a Tier III sex offender. The court
{¶ 13} C.A. appeals from his adjudication and his classification, raising four assignments of error.
II
{¶ 14} C.A.’s first and second assignments of error will be addressed together. They state:
{¶ 15} “I. THE ADJUDICATION AGAINST C.A. WAS NOT SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE.”
{¶ 16} “II. THE ADJUDICATION AGAINST C.A. WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 17} In his first and second assignments of error, C.A. claims that his adjudication was based on insufficient evidence and was against the manifest weight of the evidence.
{¶ 18} “A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law.” In re J.A., Montgomery App. No. 23059, 2009-Ohio-2321, at ¶3, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997),
{¶ 19} In contrast, “a weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” In re S.E. at ¶14; In re J.A. at ¶5. When evaluating whether an adjudication is contrary to the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all 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 [adjudication] must be reversed and a new trial ordered.” Thompkins, 78 Ohio St.3d at 387, citing State v. Martin (1983), 20 Ohio App.3d 172, 175; In re J.A. at ¶5.
{¶ 20} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. Lawson (Aug. 22, 1997), Montgomery App. No. 16288. However, we may determine which of several competing inferences suggested by the evidence should be preferred. Id.
{¶ 21} The fact that the evidence is subject to different interpretations does not render the adjudication against the manifest weight of the evidence. See State v.
{¶ 22}
{¶ 23} “‘Sexual conduct’ means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.”
{¶ 24} C.A. argues that the State failed to present sufficient credible evidence that he engaged in sexual conduct with another. C.A. claims that T.E. was not threatened, forced or coerced to engage in sexual conduct with him, and that T.E. had an opportunity to leave the room prior to and during the incident. C.A. asserts that T.E. could have simply yelled for help but did not. Finally, C.A. notes that T.E. admitted that he had initially lied to police officers, telling them that C.A. had threatened him.
{¶ 25} Upon review of the record, we find sufficient evidence to support C.A.’s adjudication. According to T.E.’s testimony, T.E. was eleven years old on June 20, 2008. On that date, C.A. came into the dayroom, grabbed some lotion, and asked T.E. to help him in his room. After T.E. entered C.A.’s room, C.A. told T.E. to pull his pants down. Although T.E. did not want to do so, C.A. pulled down T.E.’s pants and put his
{¶ 26} Moreover, during the interview with Detective Ritchason, C.A. volunteered that the alleged rape “was consensual.” The juvenile court could reasonably construe C.A.’s statement as an admission that sexual conduct with T.E., who was eleven, had occurred.
{¶ 27} C.A. asserts that T.E. could have escaped or yelled for help and that no force was involved. As an initial matter, the record does not support C.A.’s contention that C.A. stopped and retrieved lotion during the sexual conduct, thus providing an opportunity for T.E. to leave C.A.’s room. Rather, T.E. testified that C.A. grabbed the lotion prior to the encounter, that he had no opportunity to escape, and that C.A. was standing between T.E. and the door during the incident. In addition, when the victim is less than 13 years old,
{¶ 28} C.A. further claims that the adjudication was against the manifest weight of the evidence, because T.E.’s testimony is not credible. T.E. acknowledged that he had initially lied to the police when he told them that C.A. had threatened him, and he testified that he admitted that C.A. had not threatened him when he spoke with officers during a second interview. T.E. explained that his mother told him of the importance of telling the truth, and T.E. stated that he was telling the truth at trial. The trial court apparently credited T.E.’s testimony. The trial court was in the best position to
{¶ 29} In summary, we find sufficient evidence to support C.A.’s adjudication for rape, in violation of
{¶ 30} The first and second assignments of error are overruled.
III
{¶ 31} C.A.’s third and fourth assignments of error both relate to his classification as a Tier III sex offender. They state:
{¶ 32} “III. THE TRIAL COURT ABUSED IT[S] DISCRETION WHEN IT CLASSIFIED C.A. AS A MANDATORY TIER III SEX OFFENDER.”
{¶ 33} “IV. THE TRIAL COURT ABUSED IT[S] DISCRETION WHEN IT CLASSIFIED C.A. AS A MANDATORY TIER III SEX OFFENDER BASED ON APPELLANT’S PRIOR OFFENSE.”
{¶ 34} Beginning with C.A.’s fourth assignment of error, C.A. asserts that the juvenile court erred in concluding that designation as a juvenile offender registrant was mandatory due to C.A.’s prior adjudication. In his third assignment of error, C.A. asserts that the juvenile court had discretion to determine whether to classify him as a Tier I, Tier II, or Tier III sex offender, and the court erred in believing that the Tier III classification was required. C.A. further asserts that the juvenile court lacked jurisdiction to classify him beyond his twenty-first birthday.
{¶ 35} In 2007, the General Assembly enacted Senate Bill 10 (“S.B. 10“) to implement the federal Adam Walsh Child Protection and Safety Act of 2006. Among
{¶ 36} S.B. 10 and prior versions of Ohio’s Sex Offender Registration and Notification Act do not limit “sex offenders” to adult offenders. Rather, “sex offender” includes any person who “is adjudicated a delinquent child for committing, or has been adjudicated a delinquent child for committing any sexually oriented offense.”
{¶ 37} A juvenile court’s obligation to classify a juvenile sex offender is governed by portions of both
{¶ 39} The juvenile court is obligated to review the classification “upon completion of the disposition.”
{¶ 40} Applying these statutes, the juvenile court classified C.A. as a Tier III sex offender, stating, in part:
{¶ 41} “[C.A.], this a case that I don’t have any control over. This is what is called a mandatory classification. You are 15, and the statute is very clear. Because of your prior adjudication and disposition of a sex offense, it is mandatory that I classify
{¶ 42} “I am going to determine that you are not a public registry qualified juvenile offender registrant and not subject to community notification provisions. That in reality is the least severe of the three levels of Tier III.
{¶ 43} “You will be required to register in person with the sheriff of the county in which you establish residency within three days.
{¶ 44} “***
{¶ 45} “Because the Court is required to classify you as a Tier III offender, you shall be ordered to have in-person verification every 90 days of your address for your lifetime.
{¶ 46} “***
{¶ 47} “Under Ohio law right now, your classification can never be reduced to the point where you don’t have to register. You can be eventually reduced to a Tier I under certain parameters, but you’ll never be able to be such that you can be unclassified.”
{¶ 48} Initially, C.A. asserts that the trial court erred in classifying him as a mandatory Tier III sex offender based on a prior offense. He argues that he was not placed on notice when he admitted responsibility for a sexually oriented offense in a prior adjudication that his admission could result in a subsequent Tier III classification.
{¶ 49}
{¶ 50} “(A) The court that adjudicates a child a delinquent child shall issue as part of the dispositional order an order that classifies the child a juvenile offender registrant and specifies that the child has a duty to comply with sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code if all of the following apply:
{¶ 51} “(1) The act for which the child is adjudicated a delinquent child is a sexually oriented offense or a child-victim oriented offense that the child committed on or after January 1, 2002.
{¶ 52} “(2) The child was fourteen, fifteen, sixteen, or seventeen years of age at the time of committing the offense.
{¶ 53} “(3) The court has determined that the child previously was adjudicated a delinquent child for committing any sexually oriented offense or child-victim oriented offense, regardless of when the prior offense was committed and regardless of the child’s age at the time of committing the offense.
{¶ 55} According to the record, in February, 2007, C.A. admitted to committing sexual imposition with a child, in violation of
{¶ 56} We find no fault with the trial court’s consideration of C.A.’s 2007 adjudication in determining that it was required to designate C.A. a JOR under
{¶ 57} Significantly, the current version of
{¶ 58} C.A. further claims that the trial court lacked jurisdiction to classify him beyond the age of 21. Under
{¶ 59} Finally, C.A. claims that the juvenile court erred in concluding that, due to the offense of which C.A. had been adjudicated, it was required to classify C.A. as a Tier III sex offender. We agree.
{¶ 62} The Supreme Court has recognized that “[s]ince its origin, the juvenile justice system has emphasized individual assessment, the best interest of the child, treatment, and rehabilitation, with a goal of reintegrating juveniles back into society.” State v. Hanning (2000), 89 Ohio St.3d 86, 88. Juvenile sex offender classification statutes that grant the juvenile courts discretion to determine the appropriate tier in which to classify a JOR further these goals.
{¶ 63} Several appellate districts and the Ohio Attorney General have reached
{¶ 64} The State argues that the legislature did not intend for the juvenile court to exercise discretion at the hearing under
{¶ 65} The State further asserts that the phrase “relative to the offense” in the definitions of Tier I, Tier II, and Tier III for juvenile sex offenders means that the classification tier must be based on the offense for which the delinquent child was
{¶ 66} “Since a juvenile court adjudicates a juvenile a ‘delinquent child’ when the juvenile violates any law that would be an offense if committed as an adult, it necessarily follows that a juvenile court must look to
{¶ 67} “Support can be found in
{¶ 68} We do not read “relative to the offense” to mean that the juvenile court’s
{¶ 69} Based on definitions of the three tiers for juveniles, the hearing provision set forth in
{¶ 70} We note that we have previously written that juvenile tier classifications are mandatory. In re S.R.B., Miami App. No. 08-CA-8, 2008-Ohio-6340, at ¶7-8. In S.R.B., a sixteen-year-old juvenile admitted to and was adjudicated a delinquent for committing one count of rape, in violation of
{¶ 72} “While the above classification is mandatory, the decision to impose community notification requirements was discretionary with the trial court. ***.” In re S.R.B. at ¶7-8.
{¶ 73} Although the above statements imply that we view classifications for juveniles to be determined in the same manner as for adult sex offenders, S.R.B. is not binding precedent. The assignments of error in S.R.B. concerned whether the juvenile court appropriately required community notification as part of his Tier III classification, not whether the juvenile court employed the wrong analysis in determining whether he should be classified as a Tier III sex offender. In addition, unlike C.A., S.R.B. was 16 years old and was classified under
{¶ 74} However, to the extent that we held that S.R.B.’s Tier III classification was mandatory, we believe that statement was not correct; we did not consider the differences in the tier definitions for adults and juveniles, and we supported our comment that S.R.B.’s classification as a Tier III sex offender was “non-discretionary” based upon his “conviction” for rape by citing
{¶ 75} It is easy to see how such interpretative missteps might occur. The Byzantine statutory labyrinth created by Chapters 2152 and 2950 tests any court’s interpretative abilities. See, S.R.B. at ¶6 (“The enactment of the ‘Adam Walsh Law’ by the Ohio legislature has resulted in a confusing array of very poorly worded statutory provisions ***.“); Gildersleeve v. State, Cuyahoga App. Nos. 91515, 91519, 91521, 91532, 2009-Ohio-2031, at ¶56 (agreeing “wholeheartedly with the Second District’s frustration” regarding the confusing nature of S.B.10’s provisions). Indeed, the Ohio Attorney General, who is designated a significant role in the administration of S.B.10’s provisions, has also reversed its position on the meaning of S.B.10’s juvenile provisions. In its amicus curiae brief in Smith, the Ohio Attorney General acknowledged that it had previously described the juvenile sex offender provisions as providing no “discretion on which tier classification to impose” at the hearing under
{¶ 76} Since C.A. was 15 years old and had a previous adjudication for a sexually oriented offense, the juvenile court was required to designate him a JOR and to order him to comply with the relevant provisions of
{¶ 77} C.A.’s fourth assignment of error is overruled. C.A.’s third assignment of error is sustained to the extent that it asserts that the trial court erred in classifying C.A. as a Tier III sex offender on the ground that it was required to so classify him based on his offense. In all other respects, the assignment of error is overruled.
IV
{¶ 78} C.A.’s adjudication for rape, in violation of
BROGAN, J. and HARSHA, J., concur.
(Hon. William H. Harsha, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Johnna M. Shia
Antony A. Abboud
Hon. Anthony Capizzi