IN THE MATTER OF: K.W.
CASE NO. 9-08-57
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
June 29, 2009
[Cite as In re K. W., 2009-Ohio-3152.]
WILLAMOWSKI, J.
DEFENDANT-APPELLANT. OPINION. Appeal from Marion County Common Pleas Court Family Division Trial Court No. 2007-DL-01122. Judgment Affirmed in Part, Reversed in Part and Cause Remanded.
Kevin P. Collins for Appellant
Brent Yager for Appellee
{1} Defendant-appellant K.W. brings this appeal from the judgment of the Court of Common Pleas of Marion County, Juvenile Division, adjudicated him to be a delinquent. For the reasons set forth below, the judgment is affirmed in part and reversed in part.
{2} On July 15, 2007, the father of the victims, M.S. was walking to the garage and glanced into the bedroom window of the victims, D.S. and R.S.. Inside the bedroom, he observed the victims with K.W. R.S. and K.W. were naked and K.W. had his penis against R.S.‘s buttocks. D.S. was in the room and was shirtless. M.S. hit the window and yelled at the children to stop. K.W. was then told to leave the home.
{3} On July 16, 2007, the Department of Children‘s Services of Marion County (“the Agency“) was notified of the incident. Intake investigator Jackie Campbell (“Campbell“) then interviewed D.S. and R.S. On July 19, 2007, Campbell and Detective Hildreth (“Hildreth“), of the Marion County Sheriff‘s Department, interviewed K.W. at Campbell‘s insistence at the Agency so they could “help him.” Campbell and Hildreth spoke with K.W. again on July 27, 2007. K.W. was brought to the Agency by his father after he stated details of what had occurred on another occasion. K.W. then began psychological treatment with Dr. Keith Hughes (“Hughes“) on July 30, 2007.
{5} On May 9, 2008, K.W. filed a motion to dismiss the charges as being in the best interest of the community and the child. The State filed its response on May 19, 2008. On May 29, 2008, the State filed a motion requesting a new psychological evaluation of K.W. be completed by Karpawich. K.W. filed his objection to the second evaluation on June 2, 2008. On June 3, 2008, the trial court ordered K.W. and one of his parents to submit to the second evaluation. However, it was ordered that any information received from the examination
{6} On July 24, 2008, a hearing was held on K.W.‘s motion to suppress. K.W. claimed that his confessions should be excluded because he was not informed of his Miranda rights prior to being questioned. The trial court overruled this motion finding that K.W. was not in custody at the time of the interrogation. A trial was held on the case on August 5, 2008. On August 13, 2008, the trial court entered its judgment adjudicating K.W. delinquent on one count of rape and one count of gross sexual imposition. However, the trial court found K.W. not delinquent on the count of attempted rape. The dispositional hearing was subsequently held on October 1, 2008. The trial court ordered K.W. to a minimum of one year commitment to the Department of Youth Services and suspended that sentence pending K.W.‘s successful completion of probation. K.W. appeals from this judgment and raises the following assignments of error.
First Assignment of Error
The record contains insufficient evidence to support K.W.‘s adjudication of delinquency based on rape.
The record contains insufficient evidence to support K.W.‘s adjudication of delinquency based on gross sexual imposition.
Third Assignment of Error
The juvenile court erred to K.W.‘s prejudice by denying his motion to suppress evidence.
Fourth Assignment of Error
The trial court erred to K.W.‘s prejudice by denying his motion to dismiss.
{7} In the first assignment of error, K.W. alleges that the trial court‘s finding of delinquency based upon the rape allegation is not supported by sufficient evidence.
An appellate court‘s function in reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. “In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law.” State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jenks at 273, 574 N.E.2d 492.
State v. Shields, 8th Dist. No. 91033, 2009-Ohio-956, ¶11.
{8} K.W. argues that the evidence was insufficient because the only evidence of rape came from the confession of K.W.
The corpus delicti of a crime is essentially the fact of the crime itself, as it is technically comprised of the act and the criminal agency of the act. State v. Maranda (1916), 94 Ohio St. 364, 114 N.E.2d 1038, paragraph one of the syllabus.
It has long been established as a general rule in Ohio that there must be some evidence outside of a confession, tending to establish the corpus delicti, before such confession is admissible. The quantum or weight of such outside or extraneous evidence is not of itself to be equal to proof beyond a reasonable doubt, nor even enough to make it a prima facie case. It is sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged. Id. at paragraph two of the syllabus. This Court has held that “[a] mere confession without corroboration by the presentation of other evidence outside the confession which tends to prove some material element of the crime charged is not admissible.” State v. Eames (Mar. 7, 1994), 3d Dist. No. 14-93-3, * * * citing State v. Black (1978), 54 Ohio St.2d 304, 376 N.E.2d 948.
The corpus delicti rule is not applied by courts with “dogmatic vengeance.” State v. Van Hook (1988), 39 Ohio St.3d 256, 261, 530 N.E.2d 883. The state has the burden only to produce “some evidence” of the corpus delicti. Id. Although minimal proof is required, the state must produce some proof that a crime was committed. Id.; Maranda, 94 Ohio St. at 371, 114 N.E.2d 1038.
In re Amos, 3d Dist. No. 3-04-07, 2004-Ohio-7037, ¶13-14.
{9} In this case, the State argues that K.W. was delinquent because he allegedly committed a rape by engaging in fellatio with a child under the age of 13.1 However, the only evidence that this event occurred was the confession of a young ten year old boy with no prior contact with the legal system being
{10} K.W.‘s second assignment of error alleges that the record contains insufficient evidence to support the adjudication of delinquency based upon gross
{11} In this case, the State presented the eye witness testimony of M.S. that he saw K.W. placing his erect penis on the buttock of R.S. K.W. admitted in his confession that he had engaged in sexual contact with R.S. and D.S. He stated that he did so because he wanted to know what sex was. Based upon this evidence and viewing it in a light most favorable to the State, there is sufficient evidence to support an adjudication of delinquency based upon gross sexual imposition. The second assignment of error is overruled.
{12} The third assignment of error alleges that the trial court erred in denying the motion to suppress the confessions. K.W. argues that the interrogations were custodial and no Miranda warnings were given prior to questioning.
Juveniles are entitled both to protection against compulsory self-incrimination under the Fifth Amendment and to Miranda warnings where applicable. In re Gault (1967), 387 U.S. 1, 54, 87 S.Ct. 1428, 18 L.Ed.2d 527. When a juvenile is subjected to custodial interrogation, special care must be taken to insure that
his or her rights are protected, particularly when it is alleged that the juvenile has waived the right to silence. Id. at 45. “In deciding whether a juvenile‘s confession is involuntarily induced, the court should consider the totality of the circumstances, including the age, mentality and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; and the existence of physical deprivation or inducement.” In re Watson (1989), 47 Ohio St.3d 86, 548 N.E.2d 210, at paragraph one of syllabus.
“If counsel was not present for some permissible reason when an admission [by a juvenile] was obtained, the greatest care must be taken to assure that the admission was voluntary in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.” In re Gault, supra, 387 U.S. at 54; see also Fare v. Michael C. (1979) 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197. Although the Ohio Supreme Court has declined to adopt the rule that a juvenile must have a parent or attorney present before a valid waiver of the right to silence can be found, the presence or absence of a parent or attorney is a significant factor when considering the totality of circumstances. See In re Watson, supra, 47 Ohio St.3d at 90.
State v. Thompson, 7th Dist. Nos. 98 JE 28, 98 JE 29, 2001-Ohio-3528. The police are not required to provide Miranda warnings every time they question an individual, but must do so when the questioning rises to the level of custodial interrogation. Miranda v. Arizona (1966), 384 U.S. 436, 369-73, 86 S.Ct. 1602, 16 L.Ed.2d 694. “A person is ‘in custody’ only if under the totality of the circumstances, a reasonable person in the same situation would feel that he was not free to leave.” In re R.H., 2nd Dist. No. 22352, 2008-Ohio-773, ¶16. (citing State v. Wood, 2nd Dist. No. 2006 CA 1, 2007-Ohio-1027). “In deciding whether a defendant‘s confession is involuntarily induced, the court should consider the
{13} One of the purposes of the privilege against self-incrimination “is to prevent the state, whether by force or by psychological domination, from overcoming the mind and will of the person under investigation and depriving him of the freedom to decide whether to assist the state in securing his conviction.” Application of Gault (1967), 387 U.S. 1, 47, 87 S.Ct. 1428, 18 L.Ed.2d 527.
The authoritative “Standards for Juvenile and Family Courts” concludes that, “Whether or not transfer to the criminal court is a possibility, certain procedures should always be followed. Before being interviewed (by the police), the child and his parents should be informed of his right to have legal counsel present and to refuse to answer questions or be fingerprinted if he should so decide.”
Id. at 49. In Gault, the Supreme Court of Arizona held that juveniles and their parents need not be advised of the child‘s right to remain silent prior to questioning because without the confession, the child could not obtain the right treatment. The United States Supreme Court disagreed.
[E]vidence is accumulating that confessions by juveniles do not aid in “individualized treatment,” as the court below put it, and that compelling the child to answer questions, without warning or advice as to his right to remain silent, does not serve their or any other good purpose. * * * [It] seems probable that where children are induced to confess by “paternal” urgings on the part of officials and the confession is then followed by disciplinary action, the child‘s reaction is likely to be hostile and adverse – the child may well feel that he has been led or tricked into confession and that despite his confession, he is being punished.
* * *
If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.
Id. at 51-52, 55.
{14} Here, the facts of what occurred are not in question. On July 18, 2007, Campbell went to K.W.‘s home with a deputy sheriff and informed his mother that she was to bring K.W. to the agency for questioning the next day or they would do the questioning at the Sheriff‘s office. K.W. was taken to the agency on July 19, 2007, where he was taken into the interview room with Campbell, Hildreth, and a friend of the family that K.W. requested accompany him. At that time, K.W. was approximately 10 years and two months of age with no prior interaction with the legal system or law enforcement. Prior to the interview, no warning was given to K.W. that possible criminal charges could
{16} Before the second interview, Campbell received a call from K.W.‘s father indicating that he wanted her to talk to his son again due to new information. K.W. was taken to the agency by his father. During the second interview, K.W. was alone in the interview room with Campbell and Detective Hildreth. He was not accompanied by a parent. Testimony was provided that again no rights, including the right to leave were discussed with either K.W. or his parents. K.W. was again told to tell them everything so that they could help him and so that they would not have to “bug him” anymore. Exhibit F, at 2. No mention was made to anyone concerning the possibility of charges.
{17} The above facts are not disputed. Thus, the issue before this court is whether a reasonable person in K.W.‘s position would have understood his
{18} Although the failure to inform K.W. of his Miranda rights is an error, it is a harmless error as to the gross sexual imposition charge.6 When the confession is excluded, there is still sufficient evidence to support the charge of gross sexual imposition. M.S. witnessed the event and testified to what he saw.
{19} Finally, K.W. claims that the trial court erred in overruling his motion to dismiss. Once the issues before the juvenile court had been determined, the trial court is required to do one of the following.
- If the allegations of the complaint, indictment, or information were not proven, dismiss the complaint;
- If the allegations of the complaint, indictment or information are admitted or proven, do any one of the following unless precluded by statute:
- Enter an adjudication and proceed forthwith to disposition;
- Enter an adjudication and continue the matter for disposition for not more than six months and may make appropriate temporary orders;
- Postpone entry of adjudication for not more than six months;
- Dismiss the complaint if dismissal is in the best interest of the child and the community.
{20} In this case, the trial court held a hearing on July 8, 2008, concerning the motion to dismiss. The State presented the testimony of Karpawich while K.W. presented the testimony of Hughes. Following the hearing, the trial court entered its judgment on July 11, 2008. The trial court specifically found that K.W. was still in counseling with Hughes and that he did not understand the seriousness of the incident. Based upon these findings, the trial court determined that it was not in the best interest of either the child or the community to dismiss the complaint. A review of the record indicates that these findings and the conclusion were supported by some competent, credible evidence. Thus, the trial court did not abuse its discretion in denying the motion to dismiss. The fourth assignment of error is overruled.
{21} Having sustained the first assignment of error, the judgment is affirmed in part and reversed in part. The matter is remanded to the trial court for vacation of the rape charge and a new dispositional hearing.7
/jnc
Judgment Affirmed in Part, Reversed in Part and Cause Remanded