Case Information
*1
[Cite as
In re H.M.
,
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: H.M., A MINOR CHILD : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, J.
:
:
: Case No. 17-CA-81 :
:
: O P I N I O N CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court
of Common Pleas, Juvenile Division, Case No. A2017-0291 JUDGMENT: Affirmed in part; reversed in part and
remanded
DATE OF JUDGMENT ENTRY: June 5, 2018
APPEARANCES:
For - Appellee For - H.M.
MANDY DELEEUW CHARLYN BOHLAND Assistant Prosecuting Attorney Assistant Public Defender 20 Second St., 4 th Floor 250 East Broad Street, Ste. 1400 Newark, OH 43055 Columbus, OH 43215 For - State of Ohio Guardian Ad Litem BILL HAYES CAROLYN E. FITTRO Licking County Prosecutor 1335 Dublin Road, Ste. 104D 20 South Second Street Columbus, OH 43215 Newark, OH 43055
[Cite as
In re H.M.
,
Gwin, P.J. Defendant-appellant H.M., a juvenile, appeals the judgment of the Licking
County Court of Common Pleas, Juvenile Division, аdjudicating him a delinquent child for committing the offenses of two counts of rape, and one count of Gross Sexual Imposition.
Facts and Procedural History 18-year-old C.P. testified that she does not get along with her 17-year-old brother, H.M. C.P. also explained that she and H.M. had engaged in sexual conduct when they were younger. C.P. testified about two incidents that took place at their home. C.P. testified that in September 2016 H.P. forced his way into her bedroom,
So, I got up to close the door, and, of course, him being stronger than me, that wasn’t happening so we struggled with the door for a minute.
* * *
He had his like - - foot in like blocking it and he’s like laughing because he knows he’s stronger and I’m not going to be able to close it.
T., Sept. 22, 2017 at 24. H.M. proceeded into C.P.'s room and asks her if she “wanted to do it.” T.,
Sept. 22, 2017 at 25. C.P. said “no, that we can’t do that anymore.” H.M. proceеded to grab her arm, and took her to his room. C.P. demonstrated for the court how H.M. grabbed her arm. T., Sept. 22, 2017 at 25. At H.M.'s insistence, C.P. put her mouth on H.M's penis and tried to give him a blowjob "for maybe like three seconds," but stopped because she felt like she was going to puke on him. Then, H.M. put C.P.'s hands on his penis; and C.P. tried to give him a hand job for about three more seconds, but could not *3 do it. C.P. left H.M.'s room, and ran back to her room and locked the door. C.P. did not tell their mother, B.M., what had happened. In December or January 2016, C.P. testified that H.M. came into C.P.'s
room, grabbed her arm, walked her all the way to his bed and told her to lie down. H.M. then told C.P. to pull down her pants. C.P. testified,
I didn’t - - didn’t really see a reason to fight because again, stronger, not going to win. At this point in time he had evolved the threats into killing me so I wasn’t even going to say a word back to him about anything.
T., Sept. 22, 2017 at 32. H.M. рut his mouth on C.P.'s vagina and stopped when C.P. told him to
stop. C.P. testified,
Yeah. I told him, I said, “Stop” because there was like panic in my voice and he heard that.
* * *
I pulled up my pants, literally leaped off the bed and ran into my room slammed the door and locked it.
* * *
Me leaping kind of looked like flying because I didn’t see the floor.
T., Sept. 22, 2017 at 33-34. C.P. testified that H.M. is stronger than she is. C.P. further testified that
H.M. had threatened to kill or harm her in the past. Detective Steven Vanoy of the Newark Police Department interviewed both
C.P. and H.M. about the incidents. Detective Vanoy explained that H.M initially denied *4 the allegations. When Detective Vanoy asked H.M. how his D.N.A. got on C.P. H.M. admitted that one night when he was very drunk, he wet his hand with saliva and put his hand on C.P.'s vagina. Prior to trial, H.M. and his attorney agreed to undertake a polygraph
assessment. At trial, Cindy Erwin, a polygraph examiner at BCI & I testified аbout the process for administering the polygraph test. Ms. Erwin reviewed background information, formulated questions that were reviewed by the prosecutor and defense counsel, and met with H.M. prior to the test. Ms. Erwin explained that polygraph results are 75% to 92% accurate. After consultation with counsel, Ms. Erwin asked H.M. the following questions:
1). After you got home from DYS the last time, did you ever threaten to hurt [CP.] if she did not put her mouth on your bаre penis?
2). After you got home from DYS the last time, did you ever force [C.P.] to masturbate you?
3). Did you ever force [C.P.] to let you put your mouth on her bare vagina?
T., Sept. 22, 2017 at 174. The test was administered three times, each showing that H.M. was deceptive. T., Sept. 22, 2017 at 182. Ms. Erwin also confirmed that she misspoke during the test and used the wrong name when asking H.M. the questions. However, Ms. Erwin stated that the results were not impacted by her mistake. H.M. admitted that hе had threatened to kill C.P. in the past. T. Sept. 22,
2017 at 242-243. He further admitted to making threats to harm C.P. “multiple times.” T., *5 Sept. 22, 2017 at 243. H.M. admitted that he had physically assaulted C.P. in January 2017. T. Sept. 22, 2017 at 243.
{¶10} At the end of the hearing, the judge remarked:
Now, if I were to decide this case solely upon the testimony of your sister and nothing more, quite frankly I would find that the State failed to prove beyond a reasonable doubt your guilt. If I considered only your sister's testimony. But, there is more. What is that more? That more is thе results of the polygraph examination. And that more is also, frankly, your testimony.
T. Sept. 22, 2017 at 271. H.M. was adjudicated delinquent by the juvenile court on all three counts.
The court order H.M. committed to the Department of Youth Services for a minimum of two years, maximum to his 21st birthday. At the disposition hearing, the juvenile court classified H.M. as a tier III juvenile offender registrant.
Assignments of Error H.M. raises five assignments of error: “I. THE JUVENILE COURT ERRED WHEN IT CLASSIFIED H.M. AS A JUVENILE OFFENDER REGISTRANT BECAUSE IT DID NOT MAKE THAT DETERMINATION UPON HIS RELEASE FROM THE SECURE FACILITY, IN VIOLATION OF R.C. 2152.83(A)(1). “II. THE JUVENILE COURT ABUSED ITS DISCRETION WHEN IT FAILED
TO USE ITS DISCRETION AND CLASSIFIED H.M. AS A TIER III JUVENILE *6 OFFENDER REGISTRANT WITHOUT HOLDING A HEARING TO DETERMINE TIER LEVEL, IN VIOLATION OF R.C. 2152.83(A) AND R.C. 2152.831.
{¶15} “III. THE JUVENILE COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENSE COUNSEL'S REQUEST FOR A CONTINUANCE, AND JUVENILE SEX OFFENDER AND PSYCHOLOGICAL EVALUATIONS, IN VIOLATION OF JUV.R. 1, JUV.R. 23, JUV.R. 29(F), AND R.C. 2152.831. “IV. THE JUVENILE COURT VIOLATED H.M.'S RIGHT TO DUE
PROCESS WHEN IT ADJUDICATED HIM DELINQUENT OF RAPE AND GSI, WHEN THAT DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; AND ARTICLE I, SECTION 16, OHIO CONSTITUTION. “V. H.M. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, IN
VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; AND ARTICLE I, SECTION 10, OHIO CONSTITUTION.”
I. II. & III. During disposition in this case, the juvеnile court committed 17-year-old H.M. to DYS for a minimum period of 2 years, maximum to his 21st birthday. Further, the juvenile court classified H.M. as a tier III juvenile offender registrant with a duty to register every 90 days for life. In his first three assignments of error, H.M. contends that the juvenile
offender registrant determination should be made upon release from the secure facility; that a hearing should be held to determine H.M.’s tier level; and that a psychologicаl evaluation of the H.M. should be performed.
STANDARD OF APPELLATE REVIEW
“‘When a court’s judgment is based on an erroneous interpretation of the
law, an abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville
Grace Brethren Church, 163 Ohio App.3d 96,
ISSUE FOR APPEAL .
Whether the juvenile court erred in classifying H.M. as a tier III juvenile offender registrant with a duty to register every 90 days for life at the dispositional hearing after the juvenile court committed H.M to a secured facility. The age of a delinquent child at the time he or she committed the offenses
dеtermines whether and how the child may be classified as a sex offender. In re. D.S ., 146 Ohio St.3d 182, 2016–Ohio–1027. R.C. 2152.82 thru 2152.86, as well as R.C. Chapter 2950, set forth Ohio’s structure for juvenile-sex-offender classification and registration. Specifically, R.C. 2152.191 identifies which juvenile offenders are subject to classification and registration requirements. The statute essentially provides that children *8 14 years or older are subject to classification so long as the offense occurred on or after January 1, 2002. Whether such classification is mandatory or discretionary is determined by
the child’s age at the time he or she committed the offense. According to R.C. 2152.83(B),
classification is discretionary for juvenile offenders who are 14 or 15 years old at the time
of the offense and who are not otherwise subject to repeat-offender classification or
serious-youthful-offender сlassification. In re I.A .,
(1) The court that adjudicates a child a delinquent child shall issue as part of the dispositional order or, if the court commits the child for the delinquent act to the custody of a secure facility, shall issue at the time of the child’s release from the secure facility, an order that clаssifies 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:
(a) The act for which the child is or was 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.
(b) The child was sixteen or seventeen years of age at the time of committing the offense.
(c) The court was not required to classify the child a juvenile offender registrant under section 2152.82 of the Revised Code or as both a juvenile *9 offender registrant and a public registry-qualified juvenile offender registrant under section 2152.86 of the Revised Code.
(2) Prior to issuing the order required by division (A)(2) of this section, the judge shall conduct a hearing under section 2152.831 of the Revised Code, except as otherwise prоvided in that section, to determine whether the child is a tier I sex offender/child-victim offender, a tier II sex offender/child-victim offender, or a tier III sex offender/child-victim offender. When a judge issues an order under division (A)(1) of this section, the judge shall include in the order the determinations identified in division (B)(5) of section 2152.82 of the Revised Code. In the case at bar, H.M. was 17 years old at the time of the offense. The
juvenile court committed him to the custody of the Department of Youth Services in a secure facility. Accordingly, the juvenile court’s only option was to classify him “at the time of the child’s release from the secure facility” and not at the time of disposition. The state agrees that the trial court erred in classifying H.M. at the time of disposition in the case at bar. H.M.’s First, Second and Third Assignments of Error are sustained. H.M.’s
classification as a tier II juvenile offender is vacated.
IV. In his Fourth Assignment of Error, H.M. challenges the mаnifest weight of the evidence that was presented at trial and which resulted in the juvenile court’s adjudication finding him to be a delinquent child. *10 10
STANDARD OF APPELLATE REVIEW.
A. Sufficiency of the Evidence.
The Sixth Amendment provides: “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States , 570
U.S. __,
ask whether the evidence should be believed. State v. Jenks ,
ISSUE FOR APPEAL
Whether, after viewing the evidence in the light most favorable to the prosecution, the evidence, “if believed, would convince the average mind of the defendant's guilt on each element of the crimes beyond a reasonable doubt.”
1. H.M. was adjudicated delinquent of two counts of Rape, violations of R.C. 2907.02(A)(2).
R.C. 2907.02 provides, (A)(2) No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.
* * *
(C) A victim need not prove physical resistance to the offender in prosecutions under this section. “Sexual conduct” is defined to include “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. *12 Penetration, however slight, is sufficient to complete vaginal or anal intercourse.” R.C. 2907.01(A). R.C. 2901.01(A)(1) defines “force,”
“Force” means any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing. In the case at bar, C.P. testified that in September 2016, H.M. forced his
way into her bedroom. H.M. grabs her arm, and took her to his room. C.P. demonstrated for the court how H.M. grabbed her arm. T., Sept. 22, 2017 at 25. At H.M.'s insistence, C.P. put her mouth on H.M's penis and tried to give him a blowjob "for maybe like three seconds," but stopped because she felt like she was going to puke on him. In December or January 2016, C.P. testified that H.M. cаme into C.P.'s
room, grabbed her arm, walked her all the way to his bed and told her to lie down. H.M. then told C.P. to pull down her pants. C.P. testified,
I didn’t - - didn’t really see a reason to fight because again, stronger, not going to win. At this point in time he had evolved the threats into killing me so I wasn’t even going to say a word back to him about anything.
T., Sept. 22, 2017 at 32. H.M. put his mouth on C.P.'s vagina. H.M. admitted that he had threatened
to kill C.P. in the past. T., Sept. 22, 2017 at 242-243. He further admitted to making threats to harm C.P. “multiple times.” T., Sept. 22, 2017 at 243. The results of the polygraph tests that H.M. agreed to take indicate that he was being deceptive about the events that C.P. testified had occurred. *13 “Corroboration of victim testimony in rape cases is not required. See State
v. Sklenar , 71 Ohio App.3d 444, 447, 594 N.E.2d 88; State v. Banks (1991), 71 Ohio
App.3d 214, 220,
conclude that a reasonable person could have found beyond a reasonable doubt that H.M. had committed the crime of Rape by the use or threat of force on two occasions. We hold, therefore, that the state met its burden of production regarding each element of the crime of Rape by the use or threat of force and, accordingly, there was sufficient evidence to support each of H.M’s adjudications.
2. H.M. was adjudicated delinquent of Gross Sexual Imposition.
R.C. 2907.05 provides, (A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following appliеs: (1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force. “Sexual Contact” is defined as “any touching of an erogenous zone of
another, including without limitation the thigh, genitals, buttock, pubic region, or, if the *14 person is a female, a breast, for the purpose of sexually arousing or gratifying either person”. R.C. 2907.01. In the case at bar, C.P. testified that in September 2016, H.M. forced his
way into her bedroom. H.M. grabs her arm, and took her to his room. Then, H.M. put C.P.'s hands on his penis. H.M. admitted that he had threatened to kill C.P. in the past. T., Sept. 22, 2017 at 242-243. He further admitted to making threats to harm C.P. “multiple times.” T., Sept. 22, 2017 at 243. The results of the polygraph tests that H.M. agreed to take indicate that he was being deceptive about the events that C.P. testified had occurred. Viewing the evidence in a light mоst favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that H.M. had committed the crime of Gross Sexual Imposition by the use or threat of force. We hold, therefore, that the state met its burden of production regarding each element of the crime Gross Sexual Imposition by the use or threat of force and, acсordingly, there was sufficient evidence to support H.M’s adjudication.
B. Manifest Weight of the Evidence. When an appellate court considers a claim that a conviction is against the
manifest weight of the evidence, the court must dutifully examine the entire record, weigh
the evidence, and consider the credibility of witnesses. State v. Thompkins , 78 Ohio St.3d
380, 386–387,
“[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts.
* * *
“If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.”
Seasons Coal Co., Inc. v. Cleveland ,
not merely substitute its view for that of the jury, but must find that “ ‘thе jury 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. Thompkins, supra, 78 Ohio St.3d at 387, *16 quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional case in which the evidence weighs heavily against the conviction.” Id.
ISSUE FOR APPEAL
Whether the trier of fact court clearly lost his way and creаted such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered. The trier of fact was free to accept or reject any and all of the evidence
offered by the parties and assess the witness’s credibility. “While the trier of fact may
take note of the inconsistencies and resolve or discount them accordingly * * * such
inconsistencies do not render defеndant’s conviction against the manifest weight or
sufficiency of the evidence.” State v. Craig , 10th Dist. Franklin No. 99AP–739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens , 10th Dist. Franklin No. 95APA09–1236, 1996
WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’
testimony, but may accept only portions of it as true. State v. Raver , 10th Dist. Franklin
No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill , 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke , 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,
citing State v. Caldwell ,
{¶45} In the case at bar, the judge heard the witnesses, viewed the evidence and heard H.M.’s attorney’s arguments and explanations about H.M., and C.P. The judge was able to see for himself H.M. and C.P. subject to cross-examinatiоn. Thus, a rational basis exists in the record for the Judge’s decision. We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins ,
adjudication of delinquent for rape by force or threat of force and grоss sexual imposition by force or threat of force is not against the sufficiency or the manifest weight of the evidence. To the contrary, the judge appears to have fairly and impartially decided that matter. The judge heard the witnesses, evaluated the evidence, and was convinced of H.M.’s guilt. Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the crime of rape by force and gross sexual imposition by force for which H.M. was adjudicated.
C). Conclusion. H.M.’s fourth assignment of error is overruled.
V. In his fifth assignment of error, H.M. argues that he received ineffective assistance of counsel because his trial counsel failed to object to the timing and mandatory nature of H.M.'s sexual offender classificatiоn. In light of our disposition of H.M.’s First, Second and Third Assignments of
Error, in which we agree that the juvenile court erred in classifying H.M. during the dispositional phase of the proceedings, H.M. cannot demonstrate prejudice from counsel’s performance. H.M.’s Fifth assignment of error is overruled. The judgment of the Licking County Court of Common Pleas, Juvenile
Division is affirmed in part and reversed in part. H.M.’s classification as a tier II juvenile offender is vacated and this case is remanded for proceedings in accordance with our opinion and the law.
By Gwin, P.J.,
Delaney, J., and
Wise, Earle, J., concur