IN RE: K.A., A Minor Child
Nos. 98924 and 99144
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 11, 2013
[Cite as In re K.A., 2013-Ohio-2997.]
BEFORE: Blackmon, J., Rocco, P.J., and E.T. Gallagher, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division, Case No. DL-11113518. JUDGMENT: AFFIRMED. RELEASED AND JOURNALIZED: July 11, 2013.
Timothy Young
Ohio Public Defender
By: Charlyn Bohland
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Timothy McGinty
Cuyahoga County Prosecutor
By: Lillie Burkons
Kristen L. Sobieski
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, J.:
I. [K.A.] was denied his right to equal protection of the laws when he was adjudicated delinquent of
R.C. 2907.05(A)(4) , for an offense committed when he was under the age of thirteen and a member of the class protected by the statute.II. [K.A.] was denied his right to due process of law when he was adjudicated delinquent of
R.C. 2907.05(A)(4) , for an offense committed when he was under the age of thirteen and a member of the class protected by the statute.III. [K.A.] was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and
Article I, Section 10 of the Ohio Constitution .
{¶2} Having reviewed the record and pertinent law, we affirm the trial court‘s decision. The apposite facts follow.
Facts
{¶3} On July 28, 2011, a complaint was filed in the juvenile court alleging that then 12 year-old K.A. committed one count of gross sexual imposition against his five-year old cousin. K.A. entered an admission to the charge.1
{¶4} At the admission hearing, it was revealed that K.A. was discovered with his pants down on top of his cousin, “humping” her. The cousin told the police that K.A.
{¶5} The court found that returning K.A. to his home “would be contrary to his best interests and welfare.” He was therefore placed at a residential treatment facility to receive therapy. The court ordered that upon successful completion of treatment, K.A. was to be released and to participate in aftercare supervision.
{¶6} While at the treatment center, K.A. physically assaulted three staff members. Therefore, his placement at the residential facility was deemed inappropriate, and he was sent to the Cuyahoga County Juvenile Detention Center for a minimum of six months; the court also ordered that K.A. complete a sex offender treatment program before he was released.
Violation of Equal Protection and Due Process
{¶7} In his first and second assigned errors, K.A. argues that his conviction for gross sexual imposition violated his rights to equal protection and due process. He specifically argues that
As applied to children under the age of 13 who engage in consensual 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 the 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.)
{¶9} K.A. argues the same analysis set forth in D.B. should apply to
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 * * * the other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.
{¶10}
{¶11} Thus, although both the statutory rape statute and gross sexual imposition statute involve children under the age of 13, they require a different mens rea. Statutory rape is a strict-liability offense because it does not require a mens rea. Statutory rape only requires engaging in a proscribed act. Gross sexual imposition pursuant to
{¶12} There is also no arbitrary and discriminatory enforcement because only K.A. had the purpose of sexually arousing or gratifying either person. Therefore,
Ineffective Assistance of Counsel
{¶13} In his third assigned error, K.A. argues his counsel was ineffective for failing to allege that the court‘s finding K.A. delinquent pursuant to
{¶14} To establish a claim for ineffective assistance of counsel, K.A. must show that his counsel‘s performance was deficient and that deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768 (1990). Under Strickland, our scrutiny of an attorney‘s work must be highly deferential, and we must indulge “a strong presumption that counsel‘s conduct falls within the range of reasonable professional assistance.” Id. at 688.
{¶15} We have already determined that there is no merit to K.A.‘s contention that
{¶16} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
KENNETH A. ROCCO, P.J., and
EILEEN T. GALLAGHER, J., CONCUR