In re S.S.

2011 Ohio 4081

• Court: Ohio Court of Appeals
• Decided: August 12, 2011
• Docket: 10CA0682
• Status: Published

Opinion

[Cite as In re S.S., 2011-Ohio-4081.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT VINTON COUNTY

IN THE MATTER OF: [S.S.], : : Adjudicated Delinquent Child. : Case No: 10CA682 : : : DECISION AND : JUDGMENT ENTRY : : File-stamped date: 8-12-11

APPEARANCES:

Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.

Mike Dewine, Ohio Attorney General, and Emily A. Pelphrey, Vinton County Special Prosecutor, Columbus, Ohio, for Appellee.

Kline, J.:

{¶1} S.S., an adjudicated delinquent child, appeals the judgment of the Vinton

County Court of Common Pleas, Juvenile Division. The juvenile court adjudicated S.S.

to be delinquent for committing two counts of gross sexual imposition. On appeal, S.S.

contends that the state failed to prove the jurisdictional element of age. As a result,

S.S. argues that the juvenile court should have dismissed the case. Because proof of

S.S.’s age was adduced during the proceeding below, we disagree. Next, S.S.

contends that insufficient evidence supports his delinquency adjudication. Specifically,

S.S. claims that there is insufficient evidence of sexual arousal or gratification. We

disagree. After viewing the evidence in a light most favorable to the state, any rational

trier of fact could reasonably infer that S.S. acted with the purpose or intent of sexual Vinton App. No. 10CA682 2

arousal or gratification. Finally, S.S. contends that the juvenile court should have

merged the delinquency adjudications under R.C. 2907.05(A)(4) and R.C. 2907.05(B).

We disagree for two reasons. First, the allied-offenses-of-similar-import statute does

not apply to juvenile proceedings. And second, even if the merger doctrine did apply,

there was no error because the juvenile court entered a single disposition for S.S.

Accordingly, we overrule S.S.’s assignments of error and affirm the judgment of the

juvenile court.

I.

{¶2} On July 2, 2010, S.S. and the victim both attended a party on the property of

the victim’s aunt (hereinafter the “Aunt”). The party was held outside, and the party

guests gathered on one side of the Aunt’s house. At the time of the party, S.S. was

thirteen-years old, and the victim was five-years old.

{¶3} The victim attended the party with her father (hereinafter the “Father”).

During the party, the Father noticed that he had not seen his daughter for awhile, so he

went looking for her. The Father then saw his daughter run towards the party area from

the back of the house. She was shaking and crying uncontrollably. At about the same

time, S.S. also returned to the party area from the back of the house.

{¶4} The Father ran towards his daughter and asked what happened. The victim

then pointed towards S.S. and kept saying “that boy.” After that, the Father handed the

victim to the Aunt and confronted S.S.

{¶5} The Aunt took the victim into the house. While inside, the victim said that

S.S. had put his hand inside her panties and touched her. The victim also said that S.S. Vinton App. No. 10CA682 3

had scratched her with his fingernail. Based on this information, the Aunt called the

sheriff’s office.

{¶6} The Father took his daughter to the hospital, where a Sexual Assault Nurse

Examiner examined her. The examination revealed fresh blood from a cut near the

victim’s vaginal region.

{¶7} On August 25, 2010, a juvenile complaint charged S.S. with one count of

rape, one count of gross sexual imposition under R.C. 2907.05(A)(4), and one count of

gross sexual imposition under R.C. 2907.05(B).

{¶8} On September 3, 2010, S.S. filed a “FINANCIAL DISCLOSURE/AFFIDAVIT

OF INDIGENCY” form. In that form, S.S. listed his date of birth as July 12, 1996.

{¶9} On October 19, 2010, the juvenile court held an adjudicatory hearing. At the

end of the hearing, S.S. claimed that the state failed to prove the jurisdictional element

of age. As a result, S.S. argued that the juvenile court had to dismiss the case. The

juvenile court, however, disagreed.

{¶10} S.S. was adjudicated delinquent on both counts of gross sexual imposition –

one count under R.C. 2907.05(A)(4) and one count under R.C. 2907.05(B). However,

because there was no evidence of penetration, the juvenile court dismissed the rape

count.

{¶11} Following the dispositional hearing, the juvenile court committed S.S. “to the

Ohio Department of Youth Services for a term of six (6) months up until the juvenile

reaches the age of twenty-one (21).” November 10, 2010 Entry at 1. The juvenile

court, however, suspended that commitment “upon the successful completion of” the

Hocking Valley Community Residential Center. Id. Vinton App. No. 10CA682 4

{¶12} S.S. appeals and asserts the following three assignments of error: I. “THE

STATE FAILED TO PROVE THE JURISDICTIONAL FACT OF AGE AT TRIAL.” II.

“THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUPPORT

ADJUDICATIONS OF DELINQUENCY.” And, III. “THE TRIAL COURT ERRED BY

ADJUDICATING [S.S.] TO BE A DELINQUENT CHILD FOR TWO SEPARATE

FELONY OFFENSES UPON A SINGLE ACT.”

II.

{¶13} In his first assignment of error, S.S. contends that the state failed to prove

“the jurisdictional element of age.” Appellant’s Brief at 8. Here, S.S. does not claim to

be over eighteen-years old. Moreover, S.S. does not argue that the juvenile court

actually lacked jurisdiction. Instead, S.S. contends that the juvenile court should have

dismissed the case because the state failed to prove his age.

{¶14} To resolve S.S.’s argument, we must interpret and apply R.C 2151.23(A)(1).

“When interpreting statutes and their application, an appellate court conducts a de novo

review, without deference to the trial court’s determination.” State v. Sufronko (1995),

105 Ohio App.3d 504, 506. Under R.C 2151.23(A)(1), “The juvenile court has exclusive

original jurisdiction * * * [c]oncerning any child who on or about the date specified in the

complaint, indictment, or information is alleged * * * to be a juvenile traffic offender or a

delinquent, unruly, abused, neglected, or dependent child[.]” A “‘[c]hild’ means a person

who is under eighteen years of age[.]” R.C. 2151.011(B)(5).

{¶15} S.S. bases his argument on our decision in Matter of Patrick (May 13, 1987),

Scioto App. No. 1618. In Patrick, the juvenile court adjudicated a child to be delinquent.

On appeal, the child argued “that the trial court erred when it failed to grant appellant’s Vinton App. No. 10CA682 5

motion at the end of the state’s case for the reason no evidence was presented as to

appellant’s age.” Id. Although this court overruled the child’s assignment of error, we

agreed with his basic argument. As a result, we found the following: “‘[I]n order for the

juvenile court to have jurisdiction of our appellant, it was incumbent upon the State to

allege and prove that appellant was within the age limits of its statutory jurisdiction.’ * * *

[Therefore, h]ad no proof of age been adduced at any time in the proceeding, a reversal

would have been required[.]” Id., quoting Miguel v State (Tex.Civ.App.1973), 500

S.W.2d 680, 681 (emphasis sic). S.S. contends that the state did not adduce proof of

his age. And for that reason, S.S. argues that the juvenile court was required to dismiss

the case.

{¶16} The state argues that we should essentially abandon Patrick and follow the

Sixth, Second, and Twelfth Appellate Districts. See In re Burton S. (1999), 136 Ohio

App.3d 386, 391-92; In re C.T., Montgomery App. No. 24036, 2010-Ohio-5887, at ¶11-

19; In re C.W., Butler App. No. CA2004-12-312, 2005-Ohio-3905, at ¶11-16.

{¶17} But here, we choose to reject S.S.’s argument without expressly overturning

Patrick. First, Patrick notes that “age is not an element in establishing delinquency, but

relates only to the jurisdiction of the court.” Patrick, citing In Re Fudge (1977), 59 Ohio

App 2d 129, 132. Patrick also states that proof of age must be “adduced at any time in

the proceeding[.]” Patrick (emphasis added). Significantly, a “proceeding” is “[t]he

regular and orderly progression of a lawsuit, including all acts and events between the

time of commencement and the entry of judgment.” Black’s Law Dictionary (9 Ed.2009)

(emphasis added). Therefore, in a juvenile case, a proceeding encompasses more than

just the adjudicatory hearing. And during the proceeding below, S.S. filed a Vinton App. No. 10CA682 6

“FINANCIAL DISCLOSURE/AFFIDAVIT OF INDIGENCY” form. In that form, S.S.

stated that his date of birth is July 12, 1996. Furthermore, S.S. “certif[ied] that the

information [he] provided [in his] financial disclosure form [was] true to the best of [his]

knowledge.” Because of the information in this form, we find that proof of S.S.’s age

was adduced during the proceeding below.

{¶18} Thus, we find (1) that the juvenile court adhered to Patrick and (2) that the

requirements of R.C 2151.23(A)(1) were satisfied. Accordingly, we overrule S.S.’s first

assignment of error.

III.

{¶19} In his second assignment of error, S.S. contends that insufficient evidence

supports his adjudication of delinquency.

{¶20} “We apply the same standard of review for weight and sufficiency of the

evidence in juvenile delinquency adjudications as [we do] for adult criminal defendants.”

In re T.R., Guernsey App. No. 10CA2, 2010-Ohio-4419, at ¶11, citing In re R.G., Stark

App. No. 2009-CA-00218, 2010-Ohio-138, at ¶10. See, also, In re T.C., Washington

App. No. 09CA10, 2009-Ohio-4325, at ¶36. Therefore, when reviewing a case to

determine if the record contains sufficient evidence to support a delinquency

adjudication, we must “‘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. 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.’” State v.

Smith, Pickaway App. No. 06CA7, 2007-Ohio-502, at ¶33, quoting State v. Jenks Vinton App. No. 10CA682 7

(1991), 61 Ohio St.3d 259, at paragraph two of the syllabus. See, also, Jackson v.

Virginia (1979), 443 U.S. 307, 319.

{¶21} The sufficiency-of-the-evidence test “raises a question of law and does not

allow us to weigh the evidence.” Smith at ¶34, citing State v. Martin (1983), 20 Ohio

App.3d 172, 175. Instead, the sufficiency-of-the-evidence test “‘gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Smith

at ¶34, quoting Jackson at 319. This court will “reserve the issues of the weight given to

the evidence and the credibility of witnesses for the trier of fact.” Smith at ¶34, citing

State v. Thomas (1982), 70 Ohio St.2d 79, 79-80; State v. DeHass (1967), 10 Ohio

St.2d 230, at paragraph one of the syllabus.

{¶22} The juvenile court adjudicated S.S. delinquent for violating both R.C.

2907.05(A)(4) and R.C. 2907.05(B). Under R.C. 2907.05(A)(4), “No person shall have

sexual contact with another, not the spouse of the offender * * * when * * * [t]he other

person * * * is less than thirteen years of age, whether or not the offender knows the

age of that person.” “‘Sexual contact’ means any touching of an erogenous zone of

another, including without limitation the thigh, genitals, buttock, pubic region, or, if the

person is a female, a breast, for the purpose of sexually arousing or gratifying either

person.” R.C. 2907.01(B). And under R.C. 2907.05(B), “No person shall knowingly

touch the genitalia of another, when the touching is not through clothing, the other

person is less than twelve years of age, whether or not the offender knows the age of

that person, and the touching is done with an intent to abuse, humiliate, harass,

degrade, or arouse or gratify the sexual desire of any person.” Vinton App. No. 10CA682 8

{¶23} Basically, S.S. makes the same argument under both R.C. 2907.05(A)(4) and

R.C. 2907.05(B). That is, S.S. claims that there is insufficient evidence of sexual

arousal or gratification. However, because any rational trier of fact could reasonably

infer that S.S. acted with the purpose or intent of sexual arousal or gratification, we

disagree.

{¶24} “While a touching, standing alone, may not be sufficient for a conviction, it can

be strong evidence of the offender’s intent.” In re Whitlock, Ashtabula App. No. 2008-A-

0018, 2008-Ohio-4672, at ¶23 (citation omitted). Furthermore, “[i]n determining whether

the contact was for purposes of sexual arousal or gratification, ‘the proper method is to

permit the trier of fact to infer from the evidence presented at trial whether the purpose

of the defendant was sexual arousal or gratification by his contact with those areas of

the body described in R.C. 2907.01. In making its decision the trier of fact may consider

the type, nature and circumstances of the contact, along with the personality of the

defendant. From these facts the trier of facts may infer what the defendant’s motivation

was in making the physical contact with the victim.’” State v. Bradley, Van Wert App.

No. 15-10-03, 2010-Ohio-5422, at ¶57, quoting State v. Huffman, Seneca App. No. 13-

2000-40, 2001-Ohio-2221 (other internal quotation omitted). See, also, State v. Cobb

(1991), 81 Ohio App.3d 179, 185.

{¶25} In our view, any rational trier of fact could have reasonably inferred that S.S.

was motivated by his own sexual arousal or gratification. Here, the evidence shows (1)

that S.S. and the victim were both behind the Aunt’s house, away from the other party

guests; (2) that S.S. put his hand inside the victim’s panties; and (3) that S.S. made

contact with the victim’s pubic region. Touching the victim’s pubic region is strong Vinton App. No. 10CA682 9

evidence of S.S.’s intentions. Whitlock at ¶23. Furthermore, in determining an

offender’s motivation, other courts have inferred sexual arousal or gratification from the

offender being alone with the victim. See, e.g., In re T.A.F., Medina App. No.

09CA0046-M, 2010-Ohio-3000, at ¶27; State v. Roberts, Hamilton App. No. C-040547,

2005-Ohio-6391, at ¶70. And finally, S.S. touched the victim’s pubic region vigorously

enough to cause injuries and bleeding. This vigorous touching supports an inference of

sexual arousal or gratification. Therefore, based on his actions and attempts at

secrecy, any rational trier of fact could have reasonably inferred that S.S.’s own sexual

arousal or gratification motivated the contact with the victim.

{¶26} Thus, after viewing the evidence in a light most favorable to the state, we find

that any rational trier of fact could have found all the essential elements of gross sexual

imposition proven beyond a reasonable doubt – under either R.C. 2907.05(A)(4) or R.C.

2907.05(B). Accordingly, we overrule S.S.’s second assignment of error.

IV.

{¶27} In his third assignment of error, S.S. contends that the juvenile court should

have merged the delinquency adjudications under R.C. 2907.05(A)(4) and R.C.

2907.05(B).

{¶28} R.C. 2941.25(A) provides: “Where the same conduct by defendant can be

construed to constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may be

convicted of only one.” R.C. 2941.25(A). S.S. argues that “R.C. 2941.25(A) should

have been applied” and that “[t]he adjudication should have been limited to a single

delinquent offense.” Appellant’s Brief at 15. The state agrees with S.S. and concedes Vinton App. No. 10CA682 10

that “the case should be remanded to the Trial court for the limited purpose of

sentencing[.]” Brief of Appellee State of Ohio at 12. But here, we disagree with both

S.S. and the state.

{¶29} “Ohio Appellate Courts have held that R.C. 2941.25(A), which provides that

an adult offender indicted on two or more allied offenses of similar import may be

convicted of only one [of] the offenses, does not apply to juvenile delinquency matters.”

In re Bowers, Ashtabula App. No.2002-A-0010, 2002-Ohio-6913, at ¶17 (citations

omitted). See, also, In re Skeens (Feb. 25, 1982), Franklin App. Nos. 81AP-882 &

81AP-883. “The allied offenses statute is inapplicable because delinquency cases do

not charge juveniles with crimes, but with acts which, if committed by an adult, would

constitute a crime and thereby establish the juvenile delinquent.” In re H.F., Cuyahoga

App. No. 94840, 2010-Ohio-5253, at ¶13 (citations omitted). Here, we agree with these

courts and find that R.C. 2941.25(A) does not apply to the present case.

{¶30} Furthermore, we would find no error even if the merger doctrine did apply to

juvenile proceedings. This is so “because the trial court made only one disposition of

commitment to the Department of Youth Services[.]” In re B.O.J., Franklin App. Nos.

09AP-600, 09AP-601, & 09AP-602, 2010-Ohio-791, at ¶22, citing Skeens. As the Tenth

Appellate District observed, “‘The doctrine of merger prevents multiple convictions for

the same conduct, but it does not prevent the defendant from being found guilty of

multiple offenses arising out of the same conduct. As such, a jury can return separate

guilty verdicts on each offense, but the defendant can only be sentenced for one. By

analogy, the merger doctrine, to the extent that it applies to juvenile proceedings, does

not prevent a juvenile court, as trier of fact, from finding that the same conduct supports Vinton App. No. 10CA682 11

multiple delinquency findings as long as the trial court enters one disposition for all such

delinquency findings resulting from the same criminal act.’” B.O.J. at ¶23, quoting In re

Durham (Sept. 17, 1998), Franklin App. No. 97APF12-1653.

{¶31} Here, the juvenile court entered a single disposition that committed S.S. “to

the Ohio Department of Youth Services for a term of six (6) months up until the juvenile

reaches the age of twenty-one (21).” November 10, 2010 Entry at 1. (The juvenile

court suspended S.S.’s commitment upon the successful completion of the Hocking

Valley Community Residential Center.) Therefore, because it entered a single

disposition for S.S., the juvenile court could not have violated the merger doctrine. See

B.O.J. at ¶24.

{¶32} Accordingly, we overrule S.S.’s third assignment of error. Having overruled

all of his assignments of error, we affirm the judgment of the juvenile court.

JUDGMENT AFFIRMED. Vinton App. No. 10CA682 12

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Vinton County Court of Common Pleas, Juvenile Division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J.: Concurs in Judgment and Opinion. McFarland, J.: Dissents.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.