[Cite as In re M.B., 2024-Ohio-5884.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN RE: M.B. JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.
Case No. 2024 AP 04 0015
OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 23 JD 00264
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 12, 2024
APPEARANCES:
For Appellee For Appellant
RYAN STYER LISA L. CALDWELL Tuscarawas County Prosecuting Attorney Tuscarawas County Public Defender Assistant Public Defender KRISTINE W. BEARD 203 Fair Avenue, N.E. Assistant Prosecuting Attorney New Philadelphia, Ohio 44663 125 E. High Avenue New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2024 AP 04 0015 2
Hoffman, P.J. {¶1} Appellant, M.B., appeals the March 20, 2024 Judgment Entry entered by
the Tuscarawas County Court of Common Pleas, Juvenile Division, committing him to the
Ohio Department of Youth Services after having adjudicated him delinquent for conduct
which would constitute the offense of gross sexual imposition if committed by an adult.
Appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On September 29, 2023, the New Philadelphia Police Department filed a
complaint alleging Appellant, then fourteen years old, was a delinquent child for
committing acts which would constitute rape, in violation of R.C. 2907.02(A)(1)(b) and
(B), a felony of the first degree if committed by an adult; and gross sexual imposition, in
violation of R.C. 2907.05(A)(4) and (C)(2), a felony of the third degree if committed by an
adult. Appellant appeared before the trial court on October 18, 2023, and entered a denial
to the allegations set forth in the complaint.
{¶3} The matter proceeded to an adjudicatory hearing on January 4, 2024. The
following evidence was presented:
{¶4} Appellant and the Victim are step-siblings. Appellant’s mother and the
Victim’s father began dating in 2018. Appellant and his mother moved into the Victim’s
father’s home in April, 2019. Appellant’s mother and the Victim’s father eventually
married. The Victim stayed with the Victim’s father on a week on-week off basis pursuant
to court-ordered visitation. Appellant and the Victim shared a bedroom when the Victim
visited. They had separate beds.
{¶5} The Victim testified the sexual assaults began approximately one month
after the Victim, who was eight years old at the time, met Appellant, who was then ten or Tuscarawas County, Case No. 2024 AP 04 0015 3
eleven years old. Prior to Appellant and Appellant’s mother moving into the Victim’s
father’s home, Appellant and the Victim played together a few times when Appellant’s
mother visited the Victim’s father without incident. The Victim recalled the initial assault,
stating Appellant climbed into the Victim’s bed, pulled down the Victim’s pants, and
inappropriately touched the Victim. Appellant also touched the Victim’s privates both over
and under the Victim’s clothes. The Victim told Appellant to stop and kicked Appellant
away.
{¶6} Another evening, Appellant attempted to place his penis in the Victim’s
anus. The Victim stated the first incidents occurred a few weeks apart. Appellant was not
successful in the first attempt to anally rape the Victim, but was successful on other
occasions. The Victim was afraid and confused, and felt betrayed by Appellant. The
sexual assaults lasted approximately ten minutes until Appellant stopped and went back
to his bed. Appellant referred to the Victim as his “sex doll.” Appellant instructed the
Victim not to tell anyone or the Victim would be in trouble. Appellant physically held down
the Victim during the assaults. The Victim testified the sexual assaults occurred almost
every time the Victim visited the Victim’s father, approximately 50-70 times. Appellant
performed oral sex on the Victim 20-30 times. Appellant forced the Victim to perform oral
sex on him.
{¶7} After several years of enduring the sexual assaults, the Victim disclosed the
abuse to his step-sister, who told the Victim’s mother. The Victim’s mother sought and
obtained sole custody and the Victim’s visitation with the Victim’s father stopped. The
Victim admitted to not being fully truthful during the forensic interview, having done so out
of fear and not being ready to talk about what happened. Tuscarawas County, Case No. 2024 AP 04 0015 4
{¶8} The Victim’s father testified he went to the police soon after the disclosure
and gave a lengthy interview to detectives. The interview was admitted into evidence as
State’s Exhibit 1. In the record interview, the Victim’s father told the detectives he and
Appellant’s mother confronted Appellant. The Victim’s father explained Appellant
admitted to sexually assaulting the Victim and placing his penis in the Victim’s mouth, and
further admitted he talked the Victim into the sexual activity and such had been his
[Appellant’s] idea. Although Appellant claimed the sexual activity only occurred one time,
the Victim’s father told detectives he did not believe Appellant.
{¶9} Appellant’s mother testified Appellant admitted to sexually assaulting the
Victim. Appellant’s mother added Appellant’s admission came only after the Victim’s
father threatened Appellant he would be raped in prison if he did not admit to the assaults.
{¶10} At the close of the State’s case, Ty Graham, counsel for Appellant, made
an oral motion to dismiss the complaint in its entirety, arguing the charges were
unconstitutional as applied to Appellant. Attorney Graham further asserted R.C.
2907.05(A)(4) violated Appellant’s right to equal protection under the law. At the close of
evidence, Attorney Graham renewed the motion to dismiss. The trial court gave the State
one week in which to respond. The trial court also offered the parties one week in which
to file closing arguments.
{¶11} The State filed its closing argument and response to Appellant’s motion to
dismiss on January 12, 2024. Via Judgment Entry filed January 19, 2024, the trial court
dismissed the rape count, finding R.C. 2907.02(A)(1)(b) was unconstitutional as applied
to Appellant. The trial court found Appellant delinquent for committing the offense of gross
sexual imposition. The trial court scheduled the matter for dispositional hearing on Tuscarawas County, Case No. 2024 AP 04 0015 5
January 31, 2024. The disposition hearing was continued until March 18, 2024, in order
for Appellant to undergo a sex offender risk assessment. Via Judgment Entry filed March
20, 2024, the trial court ordered Appellant be committed to the Ohio Department of Youth
Services for an indefinite term consisting of a minimum period of six (6) months to a
maximum period not to exceed Appellant reaching the age of twenty-one (21).
{¶12} It is from this judgment entry Appellant appeals, raising the following
assignments of error:
I. R.C. 2907.05(A)(4) IS UNCONSTITUTIONALLY VAGUE WHEN
PROSECUTING A CHILD UNDER THE AGE OF 13 YEARS OLD, WHO
ALLEGEDLY ENGAGED IN SEXUAL CONTACT WITH ANOTHER CHILD
UNDER THE AGE OF 13 YEARS OLD.
II. M.D. WAS DENIED HIS RIGHT TO DUE PROCESS AND EQUAL
PROTECTION OF THE LAW WHEN HE WAS ADJUDICATED
DELIQUENT UNDER R.C. 2907.05(A)(4), FOR AN OFFENCE [SIC]
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[Cite as In re M.B., 2024-Ohio-5884.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN RE: M.B. JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.
Case No. 2024 AP 04 0015
OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 23 JD 00264
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 12, 2024
APPEARANCES:
For Appellee For Appellant
RYAN STYER LISA L. CALDWELL Tuscarawas County Prosecuting Attorney Tuscarawas County Public Defender Assistant Public Defender KRISTINE W. BEARD 203 Fair Avenue, N.E. Assistant Prosecuting Attorney New Philadelphia, Ohio 44663 125 E. High Avenue New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2024 AP 04 0015 2
Hoffman, P.J. {¶1} Appellant, M.B., appeals the March 20, 2024 Judgment Entry entered by
the Tuscarawas County Court of Common Pleas, Juvenile Division, committing him to the
Ohio Department of Youth Services after having adjudicated him delinquent for conduct
which would constitute the offense of gross sexual imposition if committed by an adult.
Appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On September 29, 2023, the New Philadelphia Police Department filed a
complaint alleging Appellant, then fourteen years old, was a delinquent child for
committing acts which would constitute rape, in violation of R.C. 2907.02(A)(1)(b) and
(B), a felony of the first degree if committed by an adult; and gross sexual imposition, in
violation of R.C. 2907.05(A)(4) and (C)(2), a felony of the third degree if committed by an
adult. Appellant appeared before the trial court on October 18, 2023, and entered a denial
to the allegations set forth in the complaint.
{¶3} The matter proceeded to an adjudicatory hearing on January 4, 2024. The
following evidence was presented:
{¶4} Appellant and the Victim are step-siblings. Appellant’s mother and the
Victim’s father began dating in 2018. Appellant and his mother moved into the Victim’s
father’s home in April, 2019. Appellant’s mother and the Victim’s father eventually
married. The Victim stayed with the Victim’s father on a week on-week off basis pursuant
to court-ordered visitation. Appellant and the Victim shared a bedroom when the Victim
visited. They had separate beds.
{¶5} The Victim testified the sexual assaults began approximately one month
after the Victim, who was eight years old at the time, met Appellant, who was then ten or Tuscarawas County, Case No. 2024 AP 04 0015 3
eleven years old. Prior to Appellant and Appellant’s mother moving into the Victim’s
father’s home, Appellant and the Victim played together a few times when Appellant’s
mother visited the Victim’s father without incident. The Victim recalled the initial assault,
stating Appellant climbed into the Victim’s bed, pulled down the Victim’s pants, and
inappropriately touched the Victim. Appellant also touched the Victim’s privates both over
and under the Victim’s clothes. The Victim told Appellant to stop and kicked Appellant
away.
{¶6} Another evening, Appellant attempted to place his penis in the Victim’s
anus. The Victim stated the first incidents occurred a few weeks apart. Appellant was not
successful in the first attempt to anally rape the Victim, but was successful on other
occasions. The Victim was afraid and confused, and felt betrayed by Appellant. The
sexual assaults lasted approximately ten minutes until Appellant stopped and went back
to his bed. Appellant referred to the Victim as his “sex doll.” Appellant instructed the
Victim not to tell anyone or the Victim would be in trouble. Appellant physically held down
the Victim during the assaults. The Victim testified the sexual assaults occurred almost
every time the Victim visited the Victim’s father, approximately 50-70 times. Appellant
performed oral sex on the Victim 20-30 times. Appellant forced the Victim to perform oral
sex on him.
{¶7} After several years of enduring the sexual assaults, the Victim disclosed the
abuse to his step-sister, who told the Victim’s mother. The Victim’s mother sought and
obtained sole custody and the Victim’s visitation with the Victim’s father stopped. The
Victim admitted to not being fully truthful during the forensic interview, having done so out
of fear and not being ready to talk about what happened. Tuscarawas County, Case No. 2024 AP 04 0015 4
{¶8} The Victim’s father testified he went to the police soon after the disclosure
and gave a lengthy interview to detectives. The interview was admitted into evidence as
State’s Exhibit 1. In the record interview, the Victim’s father told the detectives he and
Appellant’s mother confronted Appellant. The Victim’s father explained Appellant
admitted to sexually assaulting the Victim and placing his penis in the Victim’s mouth, and
further admitted he talked the Victim into the sexual activity and such had been his
[Appellant’s] idea. Although Appellant claimed the sexual activity only occurred one time,
the Victim’s father told detectives he did not believe Appellant.
{¶9} Appellant’s mother testified Appellant admitted to sexually assaulting the
Victim. Appellant’s mother added Appellant’s admission came only after the Victim’s
father threatened Appellant he would be raped in prison if he did not admit to the assaults.
{¶10} At the close of the State’s case, Ty Graham, counsel for Appellant, made
an oral motion to dismiss the complaint in its entirety, arguing the charges were
unconstitutional as applied to Appellant. Attorney Graham further asserted R.C.
2907.05(A)(4) violated Appellant’s right to equal protection under the law. At the close of
evidence, Attorney Graham renewed the motion to dismiss. The trial court gave the State
one week in which to respond. The trial court also offered the parties one week in which
to file closing arguments.
{¶11} The State filed its closing argument and response to Appellant’s motion to
dismiss on January 12, 2024. Via Judgment Entry filed January 19, 2024, the trial court
dismissed the rape count, finding R.C. 2907.02(A)(1)(b) was unconstitutional as applied
to Appellant. The trial court found Appellant delinquent for committing the offense of gross
sexual imposition. The trial court scheduled the matter for dispositional hearing on Tuscarawas County, Case No. 2024 AP 04 0015 5
January 31, 2024. The disposition hearing was continued until March 18, 2024, in order
for Appellant to undergo a sex offender risk assessment. Via Judgment Entry filed March
20, 2024, the trial court ordered Appellant be committed to the Ohio Department of Youth
Services for an indefinite term consisting of a minimum period of six (6) months to a
maximum period not to exceed Appellant reaching the age of twenty-one (21).
{¶12} It is from this judgment entry Appellant appeals, raising the following
assignments of error:
I. R.C. 2907.05(A)(4) IS UNCONSTITUTIONALLY VAGUE WHEN
PROSECUTING A CHILD UNDER THE AGE OF 13 YEARS OLD, WHO
ALLEGEDLY ENGAGED IN SEXUAL CONTACT WITH ANOTHER CHILD
UNDER THE AGE OF 13 YEARS OLD.
II. M.D. WAS DENIED HIS RIGHT TO DUE PROCESS AND EQUAL
PROTECTION OF THE LAW WHEN HE WAS ADJUDICATED
DELIQUENT UNDER R.C. 2907.05(A)(4), FOR AN OFFENCE [SIC]
COMMITTED WHEN HE WAS UNDER THE AGE OF THIRTEEN AND A
MEMBER OF THE CLASS PROTECTED BY THE STATUTE. FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.
{¶13} This case is before this Court on the accelerated calendar pursuant to
App.R. 11.1, which provides, in pertinent part: Tuscarawas County, Case No. 2024 AP 04 0015 6
(E) Determination and judgment on appeal.
The appeal will be determined as provided by App.R. 11.1. It shall
be sufficient compliance with App.R. 12(A) for the statement of the reason
for the court's decision as to each error to be in brief and conclusionary
form.
The decision may be by judgment entry in which case it will not be
published in any form.
{¶14} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusory decision more quickly than in a case on
the regular calendar where the briefs, facts, and legal issues are more complicated. State
v. Woodhall, 2023-Ohio-1334, ¶ 3 (5th Dist.), citing Crawford v. Eastland Shopping Mall
Association, 11 Ohio App.3d 158 (10th Dist. 1983).
{¶15} This appeal shall be considered in accordance with the aforementioned
rule.
I
{¶16} In his first assignment of error, Appellant argues R.C. 2907.05(A)(4) is
unconstitutionally vague under these circumstances where the offender and the victim
are both under the age of 13.
{¶17} At the outset, we note Appellant failed to challenge R.C. 2907.05(A)(4) as
unconstitutionally vague during the trial court proceedings. “Failure to raise at the trial
court level the issue of the constitutionality of a statute or its application, which issue is
apparent at the time of trial, constitutes a waiver of such issue and a deviation from this Tuscarawas County, Case No. 2024 AP 04 0015 7
state's orderly procedure, and therefore need not be heard for the first time on appeal.”
State v. Pleatman, 2016-Ohio-7659, ¶ 16 (1st Dist.), quoting State v. Awan, 22 Ohio St.3d
120, syllabus (1986).
{¶18} Appellant’s first assignment of error is overruled.
II
{¶19} In his second assignment of error, Appellant contends the trial court violated
his rights to due process and equal protection by adjudicating him delinquent for
committing the offense of gross sexual imposition because R.C. 2907.05(A)(4) is
unconstitutional as applied to a child under the age of 13. Appellant further argues a child
under the age of 13 cannot be found to have violated R.C. 2907.05(A)(4) because such
child is a member of a protected class under that statute.
{¶20} Appellate Courts throughout the State have addressed the exact
constitutional challenges asserted by Appellant and found the application of R.C.
2907.05(A)(4) to juveniles under the age of 13 does not violate a juvenile’s rights to due
process and equal protection. See, e.g, In re J.P., 2012-Ohio-1451 (11th Dist.); In re
T.A., 2012-Ohio-3172 (2nd Dist.); In re B.O., 2017-Ohio-43 (6th Dist.); In re D.C., 2018-
Ohio-163 (8th Dist.); In re J.T., 2018-Ohio-457 (3rd Dist.). In accord with those decisions,
we find the application of R.C. 2907.05(A)(4) to Appellant herein did not violate his
constitutional rights. Tuscarawas County, Case No. 2024 AP 04 0015 8
{¶21} Appellant’s second assignment of error is overruled.
{¶22} The judgment of the Tuscarawas County Court of Common Pleas, Juvenile
Division, is affirmed.
By: Hoffman, P.J. Wise, J. and Baldwin, J. concur