In re D.S. (Slip Opinion)
Lead Opinion
*938*109{¶ 1} Appellant, D.S., allegedly engaged in acts of sexual contact with another boy. Both boys were under the age of 13. In this appeal, we consider whether the juvenile court properly dismissed the complaint pursuant to
Facts and Procedural History
{¶ 2} Appellee, the state of Ohio, charged D.S., then a 12-year-old, with three delinquency counts of gross sexual imposition pursuant to
{¶ 3} D.S. moved to dismiss the complaint on the authority of our decision in In re D.B. ,
{¶ 4} D.S. filed objections to the magistrate's decision denying the motion to dismiss, making the same arguments to the juvenile court. The juvenile court sustained the objections and dismissed the case. Referring to the allegations in the complaint, the court stated that since "[t]hese children are quite close in age, it is arbitrary to decide who should be charged and who should not, given there is no threat of force or violence." Accordingly, the court held
there are alternative methods available to provide for the treatment needs of both children and to protect the community as a whole without the use of formal Court action. If the parents are not able to provide *939the treatment *111necessary, a dependency action may be filed on behalf of the child needing the services. The Court does not find it is in the best interest of either child, given the facts of this case, to continue with the prosecution of this matter.
{¶ 5} The state appealed, arguing that dismissal-whether based upon an as-applied constitutional challenge or under
{¶ 6} D.S. appealed. We agreed to accept jurisdiction over the appeal,
1. A juvenile court's decision to utilize non-judicial community resources in lieu of criminal prosecution is [a] matterJuv.R. 9(A) entrusts to the discretion of the juvenile court. That decision may not be overturned on appeal in the absence of an abuse of discretion.
2.R.C. 2907.05(A)(4) is unconstitutional as applied to a child under the age of 13, who allegedly engaged in sexual contact with another child under 13.
Analysis
{¶ 7} We are faced with two propositions of law, only one of which presents a constitutional query. "It is well settled that this court will not reach constitutional issues unless absolutely necessary." State v. Talty ,
{¶ 9} We have considered
*113{¶ 10} Our holding in M.D. necessarily contemplated that in an appropriate case, a juvenile court may reasonably exercise its discretion to dismiss a juvenile complaint upon the evidence available on the face of the complaint. We recognized that " 'the trauma which the impending trial is causing and could cause the family is far more serious than the alleged acts, which * * * [the family] truly believe[s] [were] just kids playing doctor.' " (Ellipsis and brackets sic.) Id. at 154,
{¶ 11} Turning to the present case, we hold that the juvenile court did not abuse its discretion by dismissing the matter pursuant to
{¶ 12} We do not need to reach the constitutional question. We therefore do not consider whether
Conclusion
{¶ 13} Given our conclusion that the juvenile court did not act unreasonably in the circumstances, we cannot substitute our own judgment in place of the order of that court. Likewise, the court of appeals should not have reversed the order to *114dismiss. Accordingly, we reverse the judgment of the court of appeals and reinstate the order of the juvenile court.
Judgment reversed.
O' Connor, C.J., and O'Donnell, J., concur.
Fischer, J., concurs in judgment only, with an opinion.
Kennedy, J., dissents, with an opinion joined by French and DeWine, JJ.
Fischer, J., concurring in judgment only.
{¶ 14} In this case, appellant, D.S., has asked us to hold that a juvenile court's decision to dismiss the charges against him under
{¶ 15} I do not join the lead opinion, however, because the lead opinion uses language that could be interpreted as an expansion of the material rights of juveniles when there is no basis in law to support such an expansion. D.S. has not asked us to provide such a broad holding, and it is not necessary to do so in order to decide this case.
Dissenting Opinion
{¶ 16} Because a majority of this court fails to adhere to our fundamental role as members of the judiciary when interpreting court rules, I dissent. When a court rule is plain and unambiguous, we apply it as written. State ex rel. Potts v. Comm. on Continuing Legal Edn. ,
{¶ 17} Moreover, charging an allegedly delinquent child under the age of 13 with gross sexual imposition pursuant to
*115{¶ 18} Therefore, I would affirm the judgment of the Tenth District Court of Appeals reversing the judgment of the juvenile court and remanding the case to that court for further proceedings.
{¶ 19} The lead opinion paraphrases our holding in In re M.D. ,
{¶ 20} But did we really say-or even imply-in In re M.D. that the juvenile court could have dismissed a formally filed complaint pursuant to
{¶ 21} The full text of the quoted passage reads:
It was inappropriate that this case was filed in juvenile court. The case having been filed , it reasonably devolved on the juvenile judge to dismiss it pursuant to the mandates of R.C. Chapter 2151 . The failure to dismiss resulted in a denial of M.D.'s constitutional rights to due process under the law, * * * which should have been vindicated by the court of appeals.
(Emphasis added.) In re M.D. at 154,
{¶ 22} So what really happened? M.D. was adjudicated a delinquent child after the juvenile court found, beyond a reasonable doubt, each statutory element of the crime of complicity to rape .
{¶ 23} The only proscribed act of sexual conduct that "resemble[d]" what two five-year-olds did at M.D.'s instruction was fellatio, which this court defined as " 'the practice of obtaining sexual satisfaction by oral stimulation of the penis.' " Id . at 152,
*116{¶ 24} After determining that the adjudication was contrary to *943R.C. Chapter 2151, we went on to say that "[e]ven assuming * * * that the conduct here technically involved a 'rape' " (emphasis added), In re M.D. at 152,
{¶ 25} The CCJC's intake policy relating to statutory-rape charges involving children under the age of 13 provided, " 'Rape-Complaint shall be taken and set before a JUDGE unless subject is under age 13 years, in which case matter may be diverted.' " (Capitalization sic.)
"In situations where there is an allegation of sexual conduct involving no force and both the alleged offender and the victim are under 13 years of age, charges are not to be taken under the above statute. As an alternative, the intake mediator may consider unruly charges on one or both children."
{¶ 26} Thereafter, we stated that it was "inappropriate" that the case was filed, but given that the case had been filed, we stated that "it reasonably devolved on the juvenile judge to dismiss it pursuant to the mandates of R.C. Chapter 2151" because M.D. had committed no crime. Id. at 154,
{¶ 27} Having determined that our decision in In re M.D. did not authorize a juvenile court to use
{¶ 28} "To interpret court rules, this court applies general principles of statutory construction. * * * Therefore, we must read undefined words or phrases in context and then construe them according to rules of grammar and common usage." State ex rel. Law Office of Montgomery Cty. Pub. Defender v. Rosencrans ,
{¶ 29} Along with these rules of construction, interpretation of the Juvenile Rules requires a liberal construction to care for and protect children under the jurisdiction of the court and to protect the community and the public interest by *117"treating children as persons in need of supervision, care and rehabilitation."
{¶ 30} The full text of
(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.
(B) Screening; referral.
Information that a child is within the court's jurisdiction may be informally screened prior to the filing of a complaint to determine whether the filing of a complaint is in the best interest of the child and the public.
*944{¶ 31} A plain reading of
{¶ 32} The provisions of
{¶ 33} D.S. was charged with three delinquency counts of gross sexual imposition pursuant to
*118{¶ 34} Despite the lead opinion's conclusion that it is permissible for a juvenile court to use
{¶ 35} Additional support-beyond the mere wording of the rule-that
{¶ 36}
{¶ 37} A majority of this court holds that the juvenile court did not abuse its discretion when it dismissed the complaint pursuant to
{¶ 38} Having concluded that the juvenile court abused its discretion in dismissing the complaint under
{¶ 39} Because the constitutionality of a statute is a legal question, a court's review of a decision holding a statute unconstitutional is de novo. Crutchfield Corp. v. Testa ,
*119Burnett v. Motorists Mut. Ins. Co. ,
{¶ 40} In In re D.B. , the state charged a 12-year-old child with raping an 11-year-old child under
{¶ 41} In In re D.B. , the juvenile court had adjudicated D.B. delinquent for committing statutory rape, and the court of appeals had affirmed the judgment of the juvenile court. We accepted D.B.'s appeal, which asserted that applying
{¶ 42} First, we held that charging D.B. with statutory rape violated his right to due process:
*946As applied to children under the age of the 13 who engage in sexual conduct with other children under the age of 13,R.C. 2907.02(A)(1)(b) is unconstitutionally vague because the statute authorizes and encourages arbitrary and discriminatory enforcement. When an adult engages in sexual conduct with a child under the age of 13, it is clear which party is *120the offender and which is the victim. But when two children under the age of 13 engage in sexual conduct with each other, each child is both an offender and a victim, and the distinction between those two terms breaks down .
(Emphasis added.) Id. at ¶ 24.
{¶ 43} This court noted that its holding will not apply when rape charges are brought under other subsections of
{¶ 44} This court also held that application of
R.C. 2907.02(A)(1)(b) offers no prosecutorial exception to charging an offense when every party involved in the sexual conduct is under the age of 13; conceivably, the principle of equal protection suggests that both parties could be prosecuted as identically situated. Because D.B. and [the other child] were both under the age of 13 at the time the events in this case occurred, they were both members of the class protected by the statute, and both could have been charged under the offense .
(Emphasis added.) Id. at ¶ 30.
{¶ 45} Accordingly, this court held that charging a juvenile offender with statutory rape under
{¶ 46} Because D.B. and the alleged victim were both under the age of 13, we reversed the juvenile court's judgment that adjudicated D.B. delinquent.
{¶ 47} D.S. argues that gross sexual imposition under
{¶ 48} Unlike the statutory-rape charge at issue in In re D.B. , which is a strict-liability offense, gross sexual imposition under
{¶ 49} Therefore, I would hold, based on the facts of this case, that when the state charges an allegedly delinquent child under the age of 13 with gross sexual imposition under
{¶ 50} Our guiding principle that the Juvenile Rules should be liberally construed to care for and protect children under the jurisdiction of the juvenile court does not embrace an exercise of judicial activism.
{¶ 51} For all the foregoing reasons, I would affirm the judgment of the court of appeals, which reversed the judgment of the juvenile court and remanded the matter for further proceedings. Therefore, I dissent.
French and DeWine, JJ., concur in the foregoing opinion.