In re M.B.

2016 Ohio 4780

• Court: Ohio Court of Appeals
• Decided: June 30, 2016
• Docket: 15COA028
• Status: Published

Opinion

[Cite as In re M.B., 2016-Ohio-4780.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: M.B., JUDGES: Hon. William B. Hoffman, P.J. A MINOR CHILD Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

Case No. 15-COA-028

OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Juvenile Division

JUDGMENT: Affirmed in part; Reversed in part and Remanded

DATE OF JUDGMENT ENTRY: June 30, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER R. TUNNELL CHARLYN BOHLAND Ashland County Prosecutor Assistant State Public Defender 110 Cottage Street, Third Floor 250 East Broad Street, Suite 1400 Ashland, Ohio 44805 Columbus, Ohio 43215

EMILY M. BATES Assistant Prosecuting Attorney 110 Cottage Street, Third Floor Ashland, Ohio 44805 Ashland County, Case No. 15-COA-028 2

Hoffman, P.J.

{¶1} M.B., a delinquent child, appeals his adjudication and disposition entered

by the Ashland County Court of Common Pleas, Juvenile Division. Plaintiff-appellee is

the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On October 23, 2014, E.O., a nine year-old student in Ashland City Schools,

met with Officer Kim Mager of the Ashland Police Department. Kris Manley, a Principal

in the Ashland City School District, had called the Ashland Police Department to report

E.O. alleged she had been the victim of repeated sexual assaults by two neighbors, M.B.,

and his brother, C.B.

E.O. Interview with Detective Mager

{¶3} When Detective Mager first interviewed E.O. she was a fourth-grade

student in typical classes. E.O. understood the purpose of the interview was to discuss

her neighbors, C.B. and M.B.

{¶4} E.O. informed Officer Mager M.B., a fifteen year-old neighbor, touched her

vaginal area, which she referred to as her "bottom." E.O. told Mager M.B. and C.B., M.B.’s

sixteen year-old brother, touched her vaginal area behind the shed at the rear of M.B.'s

residence on numerous occasions. E.O. related both M.B. and C.B. inserted their fingers

inside her vagina on multiple incidents. E.O. said M.B. digitally penetrated her "five to ten

times…I'm not sure, but he does it a lot." She said the incidents with M.B. almost always

ended with his fingers insider her vagina. She also said the incidents always occurred

behind the shed. Ashland County, Case No. 15-COA-028 3

{¶5} E.O. estimated the incidents began in first grade, about three years prior, at

age six. She said M.B. and C.B. both touched her vagina on the outside of her clothes

and put their hands up her shirt.

{¶6} E.O. described an incident during which S.B., M.B.’s and C.B.'s mother,

witnessed M.B. touching her. She stated the incident occurred "right before school

started,” she believes in late August, 2014 when she was playing in the backyard. E.O.

said M.B. told her to "come here" and while they were trying to "spy" on someone, M.B.

was "touching me with his fingers inside me." C.B. was "watching to make sure nobody

saw it." E.O. stated at the same time, S.B. appeared behind the shed and saw her with

her pants and panties down and M.B. sitting in front of her. M.B. had his fingers inside

her. E.O. stated S.B. saw M.B. with his fingers inside her because "I was right there

where she looked and I saw her looking at me." S.B. yelled at M.B., stating, "That's it!

You're grounded and you can't play with her anymore!"

{¶7} E.O. also described an incident during which M.B. attempted to take a video

of her with his cell phone while touching her vaginal area.

M.B. Interview with Lieutenant Joel Icenhour

{¶8} On October 23, 2014, Lieutenant Joel Icenhour of the Ashland Police

Department met with M.B., who at the time was a fifteen year-old freshmen at Ashland

High School. Assistant Principal Jon Walter removed M.B. from class and escorted him

to Walter’s office, where Lieutenant Icenhour was waiting. Principal Walter sat behind the

desk, while M.B. and Lieutenant Icenhour sat in two chairs in the office. M.B. was told

Lieutenant Icenhour was there to talk to him, M.B. was not under arrest, M.B. did not have

to talk to Lieutenant Icenhour if he did not want to, and he was free to leave. Principal Ashland County, Case No. 15-COA-028 4

Walter did not engage in the interview, but remained present, according to school board

policy.

{¶9} M.B. stated his date of birth is September 28, 1999. Lieutenant Icenhour

told M.B. he had come to the high school to discuss statements made by E.O. M.B.

indicated he knew E.O., she was his neighbor, and he knew her age. He stated they were

friends, and often played together, until he was told he should not be playing with her

because he was "in high school."

{¶10} M.B. initially denied sexual conduct with E.O. He then indicated incidents

occurred he “wished had not happened.” When asked whether he wanted to "walk"

Lieutenant Icenhour through the incidents or whether he would rather Lieutenant Icenhour

"ask questions and pry," he indicated he would rather be questioned and lead through the

interview.

{¶11} M.B. then admitted to showing E.O. his private area. He stated the incident

occurred behind the shed. He also admitted to touching E.O.’s vaginal area. M.B. told

Lieutenant Icenhour the first incident occurred at the end of his sixth grade year. He said

there was about a "week left of school" before summer, and he touched E.O.'s vagina

behind the shed. He admitted the shed was a common place for the incidents as the area

was obscure, and "there was a gap."

{¶12} M.B. then further admitted he stuck his fingertip inside of E.O to the "tip of

the nail" about a centimeter. He admitted to inserting his fingertip into her vaginal area

about four times, and admitted it was about every time he touched her. He stated, she

said, "It hurts." Ashland County, Case No. 15-COA-028 5

{¶13} M.B. described the last incident of sexual encounter with E.O. as the last

day of eighth grade. Later in the interview, M.B. altered the day of the encounter to the

“last day of seventh grade” (the summer between seventh and eighth grade), when his

mom caught him. He said he was about to touch E.O. when his mother came around the

shed, because it was "time for dinner."

{¶14} M.B. denied ever taking pictures of E.O., and didn't remember taking any

videos of her.

Proceedings

{¶15} As a result of E.O.'s statements to Detective Mager and M.B.'s statements

to Lieutenant Icenhour, a complaint was filed in the Ashland County Court of Common

Pleas, Juvenile Division, alleging M.B. to be delinquent of Rape, in violation of R.C.

2907.02(A)(1)(b) and 2152.02(F), a felony of the first degree if committed by an adult.

{¶16} On December 26, 2014, M.B., through counsel, filed a motion to suppress

all the statements made to Lieutenant Icenhour on October 23, 2014 at Ashland High

School. The State filed a memorandum in opposition to the motion to suppress on January

8, 2015.

{¶17} The trial court conducted a hearing on the motion to suppress on January

14, 2015. M.B. did not testify at the suppression hearing. Via Opinion and Judgment Entry

of January 27, 2015, the trial court overruled M.B.'s motion to suppress.

{¶18} On February 19, 2015, the State filed an Amended Complaint alleging M.B.

to be delinquent of, Ashland County, Case No. 15-COA-028 6

Count One: Rape, between March 11, 2011 and October 21, 2014,

in violation of R.C. 2907.02(A)(1)(b), and 2152.02(F), Rape, a felony of the

first degree if committed by an adult;

Count Two: Rape, between August 1, 2014 and August 31, 2014, in

violation of R.C. 2907.02(A)(1)(b) and 2152.02(F), Rape, a felony of the

Count Three: Rape, between August 1, 2014 and August 31, 2014,

in violation of R.C. 2107.01(A)(1)(b) and 2152.02(F), Rape, a felony of the

Count Four: Gross Sexual Imposition, between March 11, 2011 and

October 21, 2014, in violation of R.C. 2907.05(A)(4) and 2152.02(F), Gross

Sexual Imposition, a felony of the third degree if committed by an adult;

Count Five: Gross Sexual Imposition, between March 11, 2011 and

October 21, 2014, in violation of R.C. 2907.05(A)(4) and 2152.02(F), Gross

Sexual Imposition, a felony of the third degree if committed by an adult;

Count Six: Gross Sexual Imposition, between March 11, 2011 and

October 21, 2014, in violation of R.C. 2907.05(A)(4) and 2152.02(F), Gross

Sexual Imposition, a felony of the third degree if committed by an adult.

{¶19} On May 27, 2015, the State filed an Evidence Rule 807 Notice regarding

the statements E.O. made at Ashland City Schools to Officer Kim Mager. Evidence Rule

807 states out-of-court statements made by a child under twelve describing any sexual

act performed on the child are not hearsay if certain factors apply. The State's motion

asserted, Ashland County, Case No. 15-COA-028 7

In the event the victim states that she cannot testify, refuses to testify,

or claims a lack of memory about the events charged, the State intends to

introduce testimony by Officer Kim Mager in regards to the victim's

statements about the offenses.

While the State certainly does not expect the case to proceed in a

manner which requires hearsay testimony, the State is giving notice to

opposing counsel as required by the statute for the purposes of efficiency

the day of trial.

{¶20} The matter proceeded to adjudication on June 8, 2015. Via Judgment Entry

of June 9, 2015, the trial court adjudicated M.B. delinquent of Count One, Two and Three,

being Rape, in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree if committed

by an adult. Therefore, the trial court found M.B. a delinquent child pursuant to R.C.

2152.02(F).

{¶21} The trial court further found the State proved, beyond a reasonable doubt,

all the essential elements of two counts of Gross Sexual Imposition, of Counts Four and

Five of the Amended Complaint, in violation of R.C. 2907.05(A)(4), a felony of the third

degree if committed by an adult. Accordingly, the trial court adjudicated M.B. a delinquent

child as defined in R.C. 2152.02(F) on the bases of having committed two counts of Gross

Sexual Imposition, each a third degree felony if committed by an adult.

{¶22} The trial court did not find the evidence established, beyond a reasonable

doubt, the essential elements of Count Six, Gross Sexual Imposition, in violation of R.C.

2907.05(A)(4); therefore, the trial court dismissed Count Six of the Amended Complaint. Ashland County, Case No. 15-COA-028 8

{¶23} The trial court conducted a dispositional hearing on July 9, 2015, and filed

a written Judgment Entry of disposition on July 15, 2015. On each count of Rape, the

trial court committed M.B. to the custody of the Ohio Department of Youth Services

pursuant to R.C. 2152.16(A)(1)(d) for institutionalization in a secure facility for an

indefinite term consisting of a minimum period of one year and a maximum period not to

exceed his attainment of twenty-one years of age. The trial court ordered the

commitments to the custody of ODYS on each count of rape shall be served

consecutively.

{¶24} As to each count of Gross Sexual Imposition, the trial court committed M.B.

to the custody of ODYS pursuant to R.C. 2152.16(A)(1)(e) for institutionalization in a

secure facility for an indefinite term consisting of a minimum period of six months and a

maximum period not to exceed his attainment of the age of twenty-one years. The trial

court further ordered the commitments to ODYS for the two offenses of gross sexual

imposition shall be suspended subject to M.B. successfully completing the requirements

regarding his commitment to the custody of ODYS, successfully completing any term of

probation or parole if such term is imposed and fully complying with all orders of the trial

court.

{¶25} The trial court conducted a classification hearing at the same time as the

dispositional hearing, pursuant to the authority as set forth in the case of In re I.A., 140

Ohio St.3d 203, and entered a separate classification order.

{¶26} Via Opinion and Judgment Entry entered July 28, 2015, the trial court

classified M.B. a Juvenile Offender Registrant and a Tier III Sex Offender. The trial court Ashland County, Case No. 15-COA-028 9

ordered M.B. placed in a sex offender program at the ODYS and ordered he successfully

complete the program. The trial court stated,

The hearing was held at the same time as the dispositional hearing

conducted by the Court in this case and was for the purpose of determining

whether to enter an Order determining [M.B.] to be a sex offender subject

to registration requirements as provided in Sections 2152.83 et seq. of the

Ohio Revised Code, as well as Chapter 2950 of the Ohio Revised Code.

{¶27} The trial court further found,

2. [M.B.] was at least fourteen years of age at the time of the

commission of the offenses and may have been fifteen years of age.

3. The Court was not required to classify [M.B.] as a Juvenile

Offender Registrant under Section 2152.82 of the Ohio Revised Code (he

had not been previously adjudicated a delinquent child for sexually oriented

offenses.)

***

The Court has considered all of the evidence, the applicable law, and

the arguments of counsel for each party. Based thereon, the Court does

issue the following Order pursuant to Section 2152.83(B)(2)(b), Ohio

Revised Code:

1.) The Court does hereby classify [M.B.] as a Juvenile Offender

Registrant and specified that [M.B.] has a duty to comply with Sections

2950.04, 2950.041, 2950.05, and 2950.06 of the Ohio Revised Code. Ashland County, Case No. 15-COA-028 10

2.) The Court finds that the offenses of Rape, in violation of Section

2907.02(A)(1)(b) of the Ohio Revised Code, are Tier III sexually oriented

offenses as defined by the statute. The Court further recognizes and finds,

however, that under present Ohio law while classification may be mandatory

the Tier upon which the juvenile is placed is discretionary with the Court and

the Court has the discretion to classify the juvenile pursuant to whatever

Tier the Court determines to be appropriate in this case. The Court finds no

basis in the evidence or any of the material received by the Court to classify

the juvenile in the present time in any Tier other than as noted above.

(Emphasis added.)

3.) The Court does hereby classify [M.B.] a Tier III Sex Offender.

{¶28} Appellant appeals, assigning as error:

{¶29} “I. THE JUVENILE COURT ERRED WHEN IT OVERRULED M.B.’S

MOTION TO SUPPRESS, IN VIOLATION OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION 10, OHIO

CONSTITUTION.

{¶30} “II. THE JUVENILE COURT VIOLATED M.B.’S RIGHT TO DUE PROCESS

WHEN IT ADJUDICATED HIM DELINQUENT, IN THE ABSENCE OF CREDIBLE AND

COMPETENT EVIDENCE, IN VIOLATION OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE U.S. CONSTITUTION; AND ARTICLE I, SECTION 16, OHIO

{¶31} “III. THE JUVENILE COURT ERRED WHEN IT CLASSIFIED M.B. AS A

JUVENILE OFFENDER REGISTRANT BECAUSE THE RECORD DID NOT ESTABLISH Ashland County, Case No. 15-COA-028 11

THAT HE WAS AGE ELIGIBLE FOR REGISTRATION, IN VIOLATION OF THE

FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION; AND ARTICLE I,

SECTION 16, OHIO CONSTITUTION.

{¶32} “IV. THE JUVENILE COURT ERRED WHEN IT CLASSIFIED M.B. AS A

TIER III JUVENILE OFFENDER REGISTRANT BECAUSE THE CLASSIFICATION

PERIOD EXTENDS BEYOND THE AGE JURISDICTION OF THE JUVENILE COURT,

IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE U.S.

CONSTITUTION; AND, ARTICLE I, SECTIONS 9 AND 16, OHIO CONSTITUTION.

{¶33} “V. M.B. 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.

{¶34} In the first assignment of error, M.B. maintains the trial court erred in

denying his motion to suppress.

{¶35} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether those

findings of fact are against the manifest weight of the evidence. State v. Fanning (1982),

1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583; State v. Klein (1991), 73 Ohio App.3d 486,

597 N.E.2d 1141; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726.

Second, an appellant may argue that the trial court failed to apply the appropriate test or

correct law to the findings of fact. In that case, an appellate court can reverse the trial

court's judgment for committing an error of law. State v. Williams (1993), 86 Ohio App.3d Ashland County, Case No. 15-COA-028 12

37, 619 N.E.2d 1141. Finally, assuming that the trial court's findings of fact are not against

the manifest weight of the evidence and that it has properly identified the law to be

applied, an appellant may argue that the trial court has incorrectly decided the ultimate or

final issue raised in the motion to suppress. When reviewing this type of claim, an

appellate court must independently determine, without deference to the trial court's

conclusion, whether the facts meet the appropriate legal standard in any given case. State

v. Curry (1994), 95 Ohio App.3d 93, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio

App.3d 623, 620 N.E.2d 906; Guysinger.

{¶36} On October 23, 2014, Lieutenant Joel Icenhour went to Ashland High

School and made contact with Assistant Principal Jon Walter indicating he had come to

the school to interview two juveniles. Assistant Principal Walter offered his office for

conducting the interviews. The office was "regular" in size, and had no windows. There

was one desk in the office and a chair behind the desk with two additional chairs located

away from the desk near one of the doors to the office.

{¶37} Walter retrieved M.B. from class, and brought M.B. to Walter's office where

Icenhour was waiting. Walter was present throughout the interview in his office, but did

not ask questions, per school board policy. The doors to the office were closed, but not

locked during the interview. Principal Walter explained to M.B. Lieutenant Icenhour was

there to talk to him, he was not under arrest, he was free to leave and he did not have to

talk to him.

{¶38} At the outset, Lieutenant Icenhour repeated he was there to talk to M.B.

M.B. was not under arrest and he was free to leave and did not have to talk. The interview

was recorded. Ashland County, Case No. 15-COA-028 13

{¶39} Lieutenant Icenhour wore plain clothes, a badge, and had weapons on his

person. The weapons were not plainly visible, but may have been seen by the juvenile.

{¶40} Prior to trial, M.B. moved to suppress the statements made to Lieutenant

Icenhour asserting he was not advised of his rights pursuant to Miranda v. Arizona (1966),

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and his statements were not voluntary.

State v. Arrington, 14 Ohio App.3d 111 (1984).

{¶41} The requirements of Miranda are specifically limited to custodial

interrogation. Before a court can exclude a statement made by an individual it must first

decide whether the individual was in custody and law enforcement officers conducted an

interrogation. In State v. Mason, 82 Ohio St.3d 144 (1998), the Ohio Supreme Court

discussed the issue of what constitutes custodial interrogation. The Court stated, "…the

determination as to whether a custodial interrogation has occurred requires an inquiry

into how a reasonable man in the suspect's position would have understood his position."

{¶42} Miranda warnings are required only where there has been such a restriction

on a person's freedom as to render him in custody. It was that sort of coercive

environment to which Miranda by its terms was made applicable, and to which it is limited.

Oregon v. Mathiason, 429 U.S. 492 (1977).

{¶43} In JDB v. North Carolina, 564 U.S. 261, 131 S.Ct. 2394 (2011), a thirteen

year-old seventh grade student was questioned without being advised of his Miranda

rights. A uniformed police officer on detail to the school took J.D.B. from his classroom to

a closed-door conference room, where police and school administrators questioned him

for at least 30 minutes. Before beginning, they did not give him Miranda warnings or the

opportunity to call his grandmother, his legal guardian, nor tell him he was free to leave Ashland County, Case No. 15-COA-028 14

the room. He first denied his involvement, but later confessed after officials urged him to

tell the truth and told him about the prospect of juvenile detention. The United States

Supreme Court in remanding the case for a determination of custody, developed a

reasonable juvenile standard holding:

This case presents the question whether the age of a child subjected

to police questioning is relevant to the custody analysis of Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is beyond

dispute that children will often feel bound to submit to police questioning

when an adult in the same circumstances would feel free to leave. Seeing

no reason for police officers or courts to blind themselves to that

commonsense reality, we hold that a child's age properly informs the

Miranda custody analysis.

{¶44} In JDB, the juvenile was thirteen years old and in the seventh grade. Here,

M.B. was fifteen years-old and in the ninth grade. Unlike the juvenile in JDB, M.B. clearly

was told Lieutenant Icenhour was only there to talk to him, he was not under arrest, he

did not have to talk and was free to leave. We also note Lieutenant Icenhour was not in

uniform as was the officer in JDB.1 Accordingly, we find the trial court reasonably

concluded a juvenile in M.B's situation would have felt he was not in custody and free to

terminate the interview.

1 While of little significance, it was the assistant principal Jon Walter who removed M.B. from his class, not the uniformed officer as in JDB. Ashland County, Case No. 15-COA-028 15

{¶45} M.B. further maintains his statements to Lieutenant Icenhour were not

voluntarily made as Lieutenant Icenhour used coercive tactics to induce M.B. into making

the statements.

{¶46} In State v. Edwards, 49 Ohio St.2d 31 (1976), the Ohio Supreme Court

addressed the issue of voluntariness of a confession and adopted the "totality of the

circumstances" analysis. The Court reaffirmed the test in In re Watson, 47 Ohio St.3d 86

(1989), holding,

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.

{¶47} Here, considering the totality of the circumstances, the recorded interview

demonstrates Lieutenant Icenhour kept a calm demeanor throughout the entire interview,

and did not use coercive tactics. Rather, Icenhour asked M.B. if he would like to walk him

through what happened or whether he would prefer Icenhour to ask questions and "pry."

M.B. responded he would prefer Lieutenant Icenhour to ask questions and lead him

through the process. The encounter lasted approximately an hour, and M.B. was treated

hospitably.

{¶48} We find the trial court did not err in finding M.B. was not in custody and his

statements were voluntarily made, without threat or coercion. Accordingly, we find the

trial court properly overruled M.B.'s motion to suppress.

{¶49} The first assignment of error is overruled. Ashland County, Case No. 15-COA-028 16

II.

{¶50} In the second assignment of error, M.B. asserts his adjudication on three

counts of rape and two counts of gross sexual imposition was against the manifest weight

and sufficiency of the evidence. We agree in part.

{¶51} As an appellate court, we neither weigh the evidence nor judge the

credibility of the witnesses. Our role is to determine whether there is relevant, competent

and credible evidence upon which the fact finder could base its judgment. Cross Truck v.

Jeffries, Stark App. No. CA5758 (Feb. 10, 1982). In re A.W., 2013-Ohio-5617, ¶ 15. Our

review of the constitutional sufficiency of evidence to support a criminal conviction is

governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979), which requires a court of appeals to determine whether “after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Id.; see also

McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming

this standard); State v. Fry, 125 Ohio St.3d 163, 2010–Ohio–1017, 926 N.E.2d 1239, ¶

146; State v. Clay, 187 Ohio App.3d 633, 2010–Ohio–2720, 933 N.E.2d 296(5th Dist .),

¶ 68.

{¶52} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678 N.E.2d 541 (1997), superseded by

constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St .3d

89, 1997–Ohio–355, 684 N.E.2d 668. Weight of the evidence concerns “the inclination of

the greater amount of credible evidence, offered in a trial, to support one side of the issue

rather than the other. It indicates clearly to the jury that the party having the burden of Ashland County, Case No. 15-COA-028 17

proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall

find the greater amount of credible evidence sustains the issue, which is to be established

before them. Weight is not a question of mathematics, but depends on its effect in

inducing belief.” Id. at 387, 678 N.E.2d 541, quoting Black's Law Dictionary (6th Ed.1990)

at 1594.

{¶53} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“‘thirteenth juror’” and disagrees with the fact finder's resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct.

2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely substitute its

view for that of the jury, but must find that “ ‘the 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, 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.

{¶54} M.B. maintains there is insufficient evidence to establish he was over the

age of thirteen at the time the offenses were alleged to have been committed; therefore

he cannot be adjudicated delinquent of statutory rape under the Ohio Supreme Court’s

holding in In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671.

{¶55} M.B.'s date of birth was established at the adjudication herein as September

28, 1999. Accordingly, he was between eleven and fifteen years of age at the times

alleged in the complaints. Ashland County, Case No. 15-COA-028 18

{¶56} E.O. testified at the adjudication hearing. Accordingly, her out-of-court

statements made to Officer Mager during the investigation were not admissible at the

hearing as hearsay evidence. As set forth in the statement of the Facts and the Case,

supra, the State filed an Evidence Rule Notice stating its intent to use the out-of-court

statements made by E.O. to Detective Mager should E.O. be unable, unavailable, or

unwilling to testify at the adjudication hearing. The trial court confirmed the State did not

intend to proceed under the Evidence Rule Notice as E.O. did in fact testify at trial.

However, during the testimony of Detective Kim Mager, M.B., through counsel, introduced

Exhibit Defense 3, as a prior inconsistent statement made by E.O. Exhibit Defense 3 is

a narrative prepared by Detective Mager following her October 23, 2014 interview with

E.O. The State used the exhibit to demonstrate E.O. had made prior statements relative

to telling her parents of the alleged sexual contact.

{¶57} Contained within Exhibit Defense 3 are statements made by E.O. alleging

M.B. touched her vaginal area and inserted his fingers inside her vagina on multiple

incidents behind the shed on M.B.'s property. However, E.O. did not provide the dates of

the incidents. E.O. estimated the incidents began when she was in first grade, about

three years ago, putting her at age six. She then said at the time M.B. both touched her

vagina on the outside of her clothes and put his hands up her shirt.

{¶58} E.O. then described an incident during which S.B., M.B. and C.B.'s mother,

witnessed M.B. touching her. She stated the incident occurred "right before school

started, she believes in late August, 2014" when she was playing in the backyard." E.O.

said M.B. told her to "come here," and while they were trying to "spy" on someone, M.B.

was "touching me with his fingers inside me." C.B. was "watching to make sure nobody Ashland County, Case No. 15-COA-028 19

saw it." Emily stated at the same time, S.B. appeared behind the shed and saw her with

her pants and panties down and M.B. sitting in front of her, and M.B. with his fingers inside

her. E.O. knew S.B. saw M.B. with his fingers inside her because "I was right there where

she looked and I saw her looking at me." S.B. yelled at M.B., stating, "That's it! You're

grounded and you can't play with her anymore!"

{¶59} During her interview with Officer Mager, E.O. did not provide any other

specific incidents or dates.

{¶60} At the adjudication hearing, E.O. testified she was now ten years-old and

her date of birth is May 9, 2005. She stated she had just finished the fourth grade.

{¶61} She again described the incident with M.B. behind the shed, during which

S.B. witnessed M.B. touching her. She described M.B. touching her "bottom" which she

said is her vaginal area, and said his fingers went inside, as she could feel it "felt bruised."

She said her pants were down. She could not remember the date of the incident. When

asked whether it was the last day of summer, she could not remember.

{¶62} She also could not remember the first time the incidents happened with M.B.

{¶63} E.O. then described an incident at Michael and Renee's house (another

neighbor) during which she was wearing a yellow skirt. She said she was in "first or

second grade" at the time. She related she was sitting on a slide when M.B. touched her

underneath her clothes and she felt the same "bruising" feeling.

{¶64} She stated M.B. would threaten to kill something of hers, if she said no. She

said it was more than the two times described, but could not recall how often. She said

M.B. could not hang out with her "a couple of months" after the incident with S.B., and the

incidents kept happening after S.B. witnessed M.B. touching her. Ashland County, Case No. 15-COA-028 20

{¶65} Detective Joel Icenhour testified at the adjudicatory hearing as to his

interview with M.B. He testified M.B. admitted in layers his sexual involvement with E.O.,

admitting to touching her private areas, to being caught at one point by S.B. getting ready

to touch E.O.

{¶66} Lieutenant Icenhour testified M.B. admitted the conduct began when he was

in sixth grade, at approximately twelve years of age. He provided two different time

frames for the incident when S.B. witnessed the touching. He said the incident occurred

during the summer between seventh and eighth grade, at which point M.B. would have

been thirteen years-old, and then he said the incident occurred after eighth grade, when

he was fourteen years-old.

{¶67} M.B. admitted he digitally penetrated E.O. "about four times." However,

there was no evidence as to M.B.'s age at the time.

{¶68} M.B. testified at the adjudicatory hearing. He stated throughout his

interview with Lieutenant Icenhour he ceased playing with E.O. in the summer of 2014.

{¶69} Appellant was convicted of three counts of rape, in violation of R.C.

2907.02(A)(1)(b) and R.C. 2152.02(F), a felony of the first degree if committed by an

adult.

(A)(1) No person shall engage in sexual conduct with another who is

not the spouse of the offender or who is the spouse of the offender but is

living separate and apart from the offender, when any of the following

applies:

*** Ashland County, Case No. 15-COA-028 21

(b) The other person is less than thirteen years of age, whether or

not the offender knows the age of the other person.

{¶70} In In re D.B., 129 Ohio St.3d 104, 950 N.E.2d 528, 2011-Ohio-2671, the

Ohio Supreme Court held,

We note that while we hold that R.C. 2907.02(A)(1)(b) is

unconstitutional as applied to a child under the age of 13 who engages in

sexual conduct with another child under the age of 13, a child under the age

of 13 may be found guilty of rape if additional elements are shown: the

offender substantially impairs the other person's judgment or control, R.C.

2907.02(A)(1)(a); the other person's ability to resist or consent is

substantially impaired because of a mental or physical condition, R.C.

2907.02(A)(1)(c); or the offender compels the other person to submit by

force or threat of force, R.C. 2907.02(A)(2). None of those additional

elements was present here.

R.C. 2907.02(A)(1)(b) prohibits one from engaging in sexual conduct

with a person under the age of 13. As applied to offenders who are under

the age of 13 themselves, the statute is unconstitutionally vague in violation

of the Due Process Clause of the United States Constitution because

arbitrary and discriminatory enforcement is encouraged. Application of the

statute in this case also violates the Equal Protection Clause of the United

States Constitution because only one child was charged with being

delinquent, while others similarly situated were not. Ashland County, Case No. 15-COA-028 22

{¶71} Here, while E.O. testified M.B. threatened to kill something meaningful to

her; the State does not allege E.O submitted out of force exerted by M.B. or the threat of

force. Rather, M.B. was convicted of statutory rape(s) based solely on the age of E.O. at

the time of the offense(s).

{¶72} Reviewing the evidence as a whole, including E.O.'s statements to Officer

Mager on October 23, 2014 at Ashland City Schools (Exhibit Defense 3), M.B.'s

statements to Lieutenant Icenhour on October 23, 2014 at Ashland High School, and the

testimony presented at the June 8, 2015 Adjudication Hearing, we find the manifest

weight and sufficiency of the evidence supports only two counts of statutory rape.

{¶73} The first incident of rape occurred when E.O. was in "first or second grade"

or about three years ago. E.O. was in fourth grade at the time of the interview on October

23, 2014, and M.B. was in ninth grade and fifteen years of age. When E.O. was in first

grade, M.B. would have been in sixth grade and approximately 12 to 13 years of age.

E.O. remembered the incident when she was wearing a yellow skirt. She testified M.B.

touched her on the swing set at Michael and Renee's house. Accordingly, we find M.B.

could not be adjudicated delinquent of rape for the first count of rape when he himself

may have been under the age thirteen at the time of the offense, pursuant to In re: D.B.,

supra.

{¶74} As to the second count of rape, M.B. admitted in his interview with

Lieutenant Icenhour to having been caught by his mother S.B. behind the shed in an act

of "almost touching" E.O. He stated the incident occurred on the last day of summer in

eighth grade. He later stated the incident occurred between the summer of seventh and

eighth grade. In her interview with Officer Mager, E.O. described the same incident as Ashland County, Case No. 15-COA-028 23

occurring in August of 2014, on the "last day of summer." She stated S.B. witnessed M.B.

touching her, and he had his finger inside her with her pants down. E.O. also testified as

to the incident at the adjudicatory hearing.

{¶75} In August of 2014, Appellant was preparing to enter ninth grade,

approximately the last day of summer in eighth grade, and he would have been fourteen

years of age. E.O. would have been under ten years of age. Therefore, we find M.B.

could be adjudicated delinquent on Count Two of Rape.

{¶76} E.O. testified M.B. had touched her other times and M.B. admitted to

touching E.O. other times, but we find M.B.'s age at these other times was not

conclusively established by the State. The State alleges the third count of rape occurred

between August 1, 2014 and August 31, 2014. The State did not meet its burden of

proving a third act of rape occurred between these dates. Accordingly, we find the State

has not demonstrated M.B. was over the age of thirteen during any additional incidents.

Further, E.O. related the "touching" continued after August of 2014, in her interview with

Officer Mager; however, at trial she stated she could not remember when the incidents

took place and did not establish the time frame for any of the incidents.

{¶77} Based upon the above and pursuant to the Ohio Supreme Court's holding

in In re D.B., supra, M.B.'s adjudication of delinquency on Count One is against the

manifest weight and sufficiency of the evidence as the evidence demonstrates Appellant

was thirteen or under at the time he committed the first count of rape.

{¶78} The evidence demonstrates Appellant committed one count of rape when

he was over the age of fourteen. In addition, while both E.O. and M.B. stated there were

multiple incidents of touching and digital penetration; however, the State did not prove the Ashland County, Case No. 15-COA-028 24

age of M.B. at the time of the other incidents or the dates on which the other acts occurred.

Accordingly, Appellant’s adjudication on the third count of rape is against the manifest

weight and sufficiency of the evidence.

{¶79} We find the evidence supports one count of rape in late August of 2014,

during which S.B. witnessed M.B. touching E.O. behind the shed. M.B.'s adjudication on

one count of rape in Count Two, in violation of R.C. 2907.02(A)(1)(b), is affirmed.

Appellant’s adjudication on Count One Rape and Count Three Rape are reversed.

{¶80} Appellant was further convicted of two counts of gross sexual imposition, in

violation of R.C. 2907.05(A)(4) and R.C. 2152.02(F), a felony of the third degree if

committed by an adult.

{¶81} The statute reads,

(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 applies:

(4) 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.

{¶82} In In re T.A., 2d Dist. Nos.2011–CA–28 and 2011–CA–35, 2012–Ohio–

3174, the Second District addressed whether In re D.B., supra, should be applied to

violations of R.C. 2907.05(A)(4),

T.A. argues that the reasoning set forth in In re D.B., supra, should

be applied to violations of R.C. 2907.05(A)(4), because both he and the Ashland County, Case No. 15-COA-028 25

other child involved were under the age of thirteen. He contends that, as

with the Statutory Rape statute, the Gross Sexual Imposition statute fails to

provide guidelines for differentiating between an offender and a victim. The

State argues that “R.C. 2907.05(A)(4), unlike R.C. 2907.02(A)(1)(b), does

differentiate between victims and offenders in situations where both actors

are children under the age of thirteen years.”

The State notes that the Statutory Rape statute prohibits sexual

conduct, which is a strict-liability offense because it does not require a

specific mens rea, while the Gross Sexual Imposition statute prohibits

sexual contact, which requires an offender to act purposefully. See State v.

Dunlap, 129 Ohio St.3d 461, 2011–Ohio–4111, 953 N.E.2d 816, ¶ 26.

Pursuant to R.C. 2901.22(A), a person acts purposefully when “it is his

specific intention to cause a certain result, or, when the gist of the offense

is a prohibition against conduct of a certain nature, regardless of what the

offender intends to accomplish thereby, it is his specific intention to engage

in conduct of that nature.”

We agree with the State. Statutory Rape only involves the offender

engaging in a proscribed act, regardless of his intent. Gross Sexual

Imposition involves both a proscribed act and a purpose—the purpose to

cause sexual arousal or gratification. This permits ready differentiation

between victim and offender. As the State notes, a two-year-old is not

capable of forming the mens rea necessary to commit the offense. Ashland County, Case No. 15-COA-028 26

{¶83} Similarly, in In re KA, 8th Dist. No. 98924, 99144, 2013-Ohio-2997, the

Eighth District held,

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 R.C. 2907.05(A)(4),

however, requires the offender to engage in certain contact with the

“purpose” to cause sexual arousal or gratification. The mens rea of

“purpose” to cause sexual arousal or gratification provides a way to

differentiate the victim from the offender.

There is also no arbitrary and discriminatory enforcement because

only K.A. had the purpose of sexually arousing or gratifying either person.

Therefore, R.C. 2907.05(A)(4) is not impermissibly vague nor a violation of

equal protection. See In the Matter of: T.A., 2d Dist. Nos.2011–CA–28 and

2011–CA–35, 2012–Ohio–3174.

{¶84} We find M.B.'s adjudication on both counts of gross sexual imposition,

Counts Four and Five, were not against the manifest weight nor the sufficiency of the

evidence because the evidence demonstrates M.B. engaged in sexual contact with E.O.

when she was under thirteen years of age on two separate occasions.

{¶85} The second assignment of error is sustained, in part, and overruled, in part. Ashland County, Case No. 15-COA-028 27

III.

{¶86} In the third assignment of error, M.B. argues the trial court erred in

classifying M.B. a Juvenile Offender Registrant/Tier III Sex Offender as the record does

not establish he is age eligible for registration, and the trial court did not exercise

discretion in classifying M.B.

{¶87} Via Judgment Entry of July 28, 2015, the trial court classified Appellant a

Juvenile Offender Registrant (“JOR”) and a Tier III sex offender. The trial court considered

the evidence presented and took judicial notice of the proceedings in the case, finding the

acts for which Appellant was adjudicated were all sexually oriented offenses and were

committed after January 1, 2002. The trial court found M.B. was at least fourteen years

of age at the time of the commission of the offenses. The court further found it was not

required to classify M.B. as a Juvenile Offender Registrant under Section 2152.82 as M.B.

had not been previously adjudicated a delinquent child for a sexually oriented offense.2

{¶88} The trial court conducted a hearing pursuant to R.C. 2152.83. The trial court

found the victim was extremely young, M.B. showed no genuine remorse, there is a

continued risk to public safety and the public has an interest in M.B. being classified, and

M.B. has demonstrated an unwillingness or reluctance to participate in any treatment

program, maintaining he has done nothing wrong. The trial court considered all of the

evidence, and classified M.B. a Juvenile Offender Registrant. The trial court stated,

2 R.C. 2152.82 requires a trial court to mandatorily classify a child a juvenile offender registrant if the child previously was adjudicated a delinquent child for committing any sexually oriented offense or child – victim oriented offense. Here, M.B. had not had any prior history of offenses. Ashland County, Case No. 15-COA-028 28

2) The Court finds that the offenses of Rape, in violation of Section

2907.02(A)(1)(b) of the Ohio Revised Code, are Tier III sexually oriented

offenses as defined by statute. The Court further recognizes and finds,

however, that under present Ohio law while classification may be mandatory

the Tier upon which the juvenile is placed is discretionary with the Court and

the Court has the discretion to classify the juvenile pursuant to whatever Tier

the Court determines to be appropriate in this case. The Court finds no basis

in the evidence or any of the material received by the Court to classify the

juvenile at the present time in any Tier other than as noted above.

3) The Court does herby classify M.B. as a Tier III Sex Offender.

4) The Court further finds that community notifications are

discretionary in this case. Having considered all facts and circumstances, the

Court does not require community notifications.

{¶89} In classifying juveniles as sex offenders, the juvenile court has discretion to

determine which tier level to apply. In re D.P., 11th Dist. No. 2008–L–186, 2009-Ohio-

6149, 2009 WL 4021187, ¶ 18, rev'd on other grounds (“the statutes vest a juvenile court

with full discretion to determine whether to classify a delinquent child as a Tier I, Tier II,

or Tier III offender”) (citation omitted.)

{¶90} The Eleventh District Court of Appeals in In re D.P., supra, explained

Senate Bill 10 as it relates to juvenile offenders,

Senate Bill 10, as in earlier versions of Ohio's sex offender

registration statutes, applies to both adult sex offenders and juvenile sex Ashland County, Case No. 15-COA-028 29

offenders. See R.C. 2950.01(B)(1) (“sex offender” includes a person who is

“adjudicated a delinquent child for committing, or has been adjudicated a

delinquent child for committing any sexually oriented offense”). The

classification scheme for juvenile sex offenders is governed by both R.C.

Chapter 2152 and R.C. Chapter 2950. As with the earlier version of the law,

Senate Bill 10 requires the juvenile court to engage in a two-step process.

See In re C.A., 2d Dist. No. 23022, 2009-Ohio-3303, ¶ 37.

First, the court must determine whether the juvenile sex offender

should be designated as a juvenile offender registrant (“JOR”) and, therefore,

subject to classification and the attendant registration requirements. For

certain juvenile sex offenders, the JOR designation is mandatory. See R.C.

2152.82 (applicable to juvenile sex offenders 14 or older who had previously

committed a sexually oriented offense); R.C. 2152.83(A)(1) (applicable to

juvenile offenders 16 or older); and R.C. 2152.86 (applicable to “serious

youthful offenders” who are additionally designated as “public registry-

qualified juvenile offender registrant”). For juvenile offenders who are 14 or

15 without prior adjudication for a sexually oriented offense and who do not

fall within R.C. 2152.86, the trial court has the discretion to determine whether

the juvenile offender should be considered a JOR therefore subject to the

registration requirement. See R.C. 2152.83(B)(1) and In re C.A. at ¶ 37.

Second, the statutory scheme for the juvenile sex offenders requires

the juvenile court to conduct a hearing to determine the tier in which to classify

the juvenile offender. R.C. 2152.831(A); R.C. 2152.83(A)(2). Unlike the adult Ashland County, Case No. 15-COA-028 30

sex offenders, who are classified based on the offense committed, the tiers

for the juveniles are determined somewhat differently. For instance, a Tier III

sex offender is defined, in part, as a “sex offender who is adjudicated a

delinquent child for committing or has been adjudicated a delinquent child for

committing any sexually oriented offense and who a juvenile court, pursuant

to section 2152.82, 2152.83, 2152.84, or 2152.85 of the Revised Code,

classifies a tier III sex offender/child-victim offender relative to the offense.”

(Emphasis added in original.) R.C. 2950.01(G)(3). Unlike the automatic

classification of the adult sex offenders, the juvenile court is authorized to

exercise its discretion at the classification hearing. Our interpretation of the

statute as vesting the juvenile court with discretion in classifying the juvenile

offenders is shared by several other appellate districts. See In re G.E.S., 9th

Dist. No. 24079, 2008-Ohio-4076, ¶ 37 (the statutes vest a juvenile court with

full discretion to determine whether to classify a delinquent child as a Tier I,

Tier II, or Tier III offender); In re S.R.P., 12th Dist. No. CA2007-11-027, 2009-

Ohio-11, ¶ 43 (the appellate court read Senate Bill 10 as giving juvenile courts

the discretion to determine which tier level to assign to a delinquent child;

regardless of the sexually oriented offense that the child committed, Senate

Bill 10 does not forbid a juvenile court from taking into consideration multiple

factors, including a reduced likelihood of recidivism); In re Adrian R., 5th Dist.

No. 08-CA-17, 2008-Ohio-6581, ¶ 17; In re J.M., 8th Dist. No. 91800, 2009-

Ohio-2880, ¶ 11; In re C.A. at ¶ 68

(Emphasis added.) Ashland County, Case No. 15-COA-028 31

{¶91} Upon review, we find the trial court may have misunderstood its discretion

in classifying M.B.3 The trial court properly conducted a hearing following disposition

exercising its discretion to classify M.B. a juvenile offender registrant. The trial court

considered M.B.'s lack of remorse, the age of the victim, and treatment options in deciding

against a lower level tier classification. These factors would support the trial court’s

classification of M.B. as a JOR/Tier III sex offender.

{¶92} However, the trial court’s Judgment Entry states “The Court further

recognizes and finds, however, that under Ohio law while classification may be

mandatory, the Tier upon which the juvenile is placed is discretionary with the Court and

the Court…” The trial court seemed to look to the offense of Rape as a Tier III offense.

As discussed supra, M.B. was 14 years old at the time of the rape offense and did not

have a prior adjudication for a sexually oriented offense; therefore, the trial court had

discretion as to whether to classify M.B. a Juvenile Offender Registrant subject to

registration. The trial court erred in finding classification mandatory. See, In Re: D.S., 5th

Dist. 13 CA 58, 2014 Ohio 867.

{¶93} The third assignment of error is sustained.

IV.

{¶94} In the fourth assignment of error, M.B. maintains the trial court's

classification of M.B. as a Tier III Juvenile Offender Registrant and Tier III sex offender

violates the Eighth and Fourteenth Amendments to the United States Constitution and

Article I, Sections 9 and 16 of the Ohio Constitution.

3 We recognize it is possible the trial court merely misspoke. Ashland County, Case No. 15-COA-028 32

{¶95} Specifically, M.B. argues the juvenile courts have exclusive jurisdiction over

children who are alleged delinquent pursuant to R.C. 2151.239(A)(1). However, the

juvenile court's jurisdiction ends at the child's twenty-first birthday. A narrow exception

exists for youth subject to Ohio's juvenile offender registration and notification statutes.

R.C. 2151.23(A)(15). R.C. Sections 2152.83(E), 2152.84 and 2152.85, when read

together, grant juvenile courts jurisdiction over adults, who were formerly delinquent

children, where jurisdiction would not otherwise exist. M.B. maintains this is contrary to

the purposes of juvenile delinquency dispositions.

{¶96} In In re D.S., 5th Dist. No. 13-CA-58, 2014-Ohio-867, appeal allowed, 2014-

Ohio-2725, ¶¶ 3-4, 139 Ohio St. 3d 1428, 11 N.E.3d 284, and aff'd, 2016-Ohio-1027, ¶¶

3-4, the juvenile court's disposition entry did not include a determination as to how old

D.S. was at the time the offenses were committed. The December 8, 2010 disposition

entry stated, “classification as a juvenile sex offender registrant is deferred or delayed

pending efforts at rehabilitation while committed to ODYS.” Following, D.S.'s release from

ODYS, the trial court conducted a classification hearing. The trial court considered

evidence as to the age of D.S. at the time the offenses were committed. The court

determined D.S. was fourteen years of age at the time at least one of the offenses was

committed; therefore, D .S. was subject to classification. Following the classification

hearing, via Judgment Entry of June 24, 2013, the trial court overruled Appellant's motion

to dismiss and the juvenile court classified D.S. a Tier II Juvenile Sex Offender Registrant

with a duty to comply with registration requirements every 180 days for 20 years.

{¶97} This Court held, Ashland County, Case No. 15-COA-028 33

The statute, therefore, specifically, continues the jurisdiction of the

juvenile court to classify the juvenile beyond their twenty-first birthday. The

legislature retains the power to define the jurisdiction of the courts as long as

powers inherently reserved for the judiciary are not infringed upon. Seventh

Urban, Inc. v. University Circle, (1981) 67 Ohio St.2d 19.

In the case at bar, the classification of D.S. as a juvenile offender

registrant was not mandatory under the circumstances of this case because

D.S. was fourteen years old at the time of at least one offense, did not have

a prior adjudication for a sexually oriented offense, and had not been labeled

a serious youthful offender. See R.C. 2152.83(B)(1), 2152.82, and 2152.86.

As classification was not mandated by statute, the juvenile court was given

the broad discretion to determine whether D.S. should be classified as a

juvenile offender registrant and under which tier D.S. should be placed.

{¶98} Recently, this Court addressed the issues raised herein in In Re D.R., a

Minor Child, 5th Dist No. Knox 13CA27, 2014–Ohio–588, holding:

Laws limiting rights, other than fundamental rights, are constitutional

with respect to substantive due process and equal protection if the laws are

rationally related to a legitimate goal of government. State v. Thompkins

(1996), 75 Ohio St.3d 558.

“***

In the case at bar, we cannot say that the classification authorized

by R.C. 2152.83(B) is irrational. Pursuant to R.C. 2152.83(B), the juvenile

court judge retains discretion to deal individually with juvenile offenders. In Ashland County, Case No. 15-COA-028 34

Re C.P., (citation omitted). ‘Fundamental fairness requires that the judge

decide the appropriateness of any such penalty.’ Id. at ¶ 78. Although

imposition of R.C. 2152.83(B) registration requirements may be punitive, they

may help achieve the goal of rehabilitation by motivating the juvenile to

comply with treatment in order to reduce or eliminate the registration

requirement. In Re I.A, 2nd Dist. Montgomery No. 25078, 2012 Ohio 4973.

Accordingly, D.R. has failed to show that a JOR classification that

extends beyond a child's twenty-first birthday violates either the United States

or Ohio constitutional prohibitions against cruel and unusual punishment or

the requirements of due process.***

{¶99} Pursuant to this Court's previous holding in In re D.S., supra, M.B.'s fourth

assignment of error is overruled.

V.

{¶100} In the fifth assignment of error, M.B. maintains he was denied the effective

assistance of trial counsel where his trial counsel failed to raise objections to the

insufficiency of the evidence presented at trial pursuant to Juvenile Rule 29, and to object

to the constitutionality of his JOR and Tier III sex offender registration.

{¶101} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838, Ashland County, Case No. 15-COA-028 35

122 L.Ed.2d 180; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

{¶102} In determining whether counsel's representation fell below an objective

standard of reasonableness, judicial scrutiny of counsel's performance must be highly

deferential. Bradley, 42 Ohio St.3d at 142, 538 N.E.2d 373. Because of the difficulties

inherent in determining whether effective assistance of counsel was rendered in any given

case, a strong presumption exists that counsel's conduct fell within the wide range of

reasonable, professional assistance. Id.

{¶103} The United States Supreme Court and the Ohio Supreme Court have held

that a reviewing court “need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.” Bradley, 42 Ohio St.3d at 143, 538 N.E.2d 373, quoting Strickland, 466 U.S.

at 697, 104 S.Ct. 2052, 80 L.Ed.2d 674.

{¶104} “When counsel's alleged ineffectiveness involves the failure to pursue a

motion or legal defense, this actual prejudice prong of Strickland breaks down into two

components. First, the defendant must show that the motion or defense ‘is meritorious,’

and, second, the defendant must show that there is a reasonable probability that the

outcome would have been different if the motion had been granted or the defense

pursued.” In re Adrian R., 5th Dist. No. 08–CA–17, 2008-Ohio-6581, 2008 WL 5207301,

at ¶ 23, citing Kimmelman v. Morrison (1986), 477 U.S. 365, 375, 106 S.Ct. 2574, 91

L.Ed.2d 305. Ashland County, Case No. 15-COA-028 36

{¶105} Based upon our analysis and disposition of M.B.'s second assignment of

error, we find M.B.'s arguments regarding failure of counsel to challenge the sufficiency

and/or weight of the evidence moot.

{¶106} As to M.B.'s argument with regard to his classification as a JOR/Tier III sex

offender, in accordance with our analysis and disposition of the third assignment of error,

we likewise find M.B.’s argument in regard thereto moot.

{¶107} The fifth assignment of error is overruled.

{¶108} The judgment of the Ashland County Court of Common Pleas, Juvenile

Division is affirmed, in part, reversed, in part, and remanded for resentencing.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur