In re [D.S.
| Decision Date | 03 May 2016 |
| Docket Number | No. 15AP-487,15AP-487 |
| Citation | 2016 Ohio 2810 |
| Parties | In re: [D.S.], (State of Ohio, Appellant). |
| Court | Ohio Court of Appeals |
(REGULAR CALENDAR)
DECISION
On brief: Yeura R. Venters, Public Defender, and David L. Strait, for appellee D.S. Argued: David L. Strait.
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellant. Argued: Seth L. Gilbert.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch
{¶ 1} Plaintiff-appellant, State of Ohio, appeals the April 13, 2015 judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, finding R.C. 2907.05(A)(4) unconstitutional as applied to defendant-appellee, D.S., and dismissing the case under Juv.R. 9. For the reasons that follow, we reverse the trial court's judgment.
{¶ 2} On November 25, 2013, a juvenile delinquency complaint was filed alleging that D.S., a twelve-year-old, had committed three counts of gross sexual imposition ("GSI"), third-degree felonies under R.C. 2907.05(A)(4). Specifically, the complaint alleged that on or about October 16, 2013, D.S. "touch[ed] and rub[bed] ["D.M.," a nine- year-old] about his penis on numerous occasions," had anal intercourse with D.M., and performed fellatio on D.M.1 (Nov. 25, 2013 Complaint, 1.) D.S. denied all counts of the complaint.
{¶ 3} On June 18, 2014, appellee filed a motion to dismiss2 asserting that "R.C. 2907.05(A)(4), violates the Due Process and Equal Protection Clauses of the United States and Ohio Constitutions because it is vague and encourages arbitrary and discriminatory enforcement" under the authority of In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, and the charge "violates Juvenile Rule 9 by failing to avoid formal court action." (June 18, 2014 Motion to Dismiss, 1.) Appellant filed a memorandum contra distinguishing In re D.B. from the charge at hand and contending the interest of the children and public would not be served by dismissing the case under Juv.R. 9.
{¶ 4} On November 5, 2014, a hearing on the motion to dismiss was brought before a magistrate with appearances made by both lawyers. During the hearing, appellee's lawyer mentioned the possibility that, related to the Juv.R. 9 decision, (Tr. 9.) In ultimately denying the motion, the magistrate found that the ruling in In re D.B. did not apply to charges under the GSI statute and that dismissal was not warranted on the few facts at hand, but noted that after more facts are learned it "may be such that it is appropriate to dismiss it then." (Tr. 12.)
{¶ 5} Appellee filed objections to the magistrate's decision on November 18, 2014, and appellant filed a memorandum contra in response. On April 13, 2015, the trial court sustained the objections to the magistrate's decision and dismissed the case.3 In doing so, the trial court stated that, although it "is not willing to make the GSI statute unconstitutional in all cases involving children under the age of thirteen," it found the statute unconstitutional as applied in this case because "[t]hese children are quite close in age, it is arbitrary to decide who should be charged and who should not, given there is no threat of force or violence." (Apr. 13, 2015 Decision and Entry, 4.) The court furthernoted that if two of the charges were charged as rape under R.C. 2907.02(A)(1)(b), "the Court would have dismissed the charges based on In re D.B. and provided alternative means for treatment and/or rehabilitation of both children." (Apr. 13, 2015 Decision and Entry, 4.)
{¶ 6} The court additionally dismissed the case under Juv.R. 9, reasoning:
[T]here are alternative methods available to provide for the treatment needs of both children and to protect the community as a whole without the use of formal Court action. If the parents are not able to provide the treatment necessary, a dependency action may be filed on behalf of the child needing the services. The Court does not find it is in the best interest of either child, given the facts of this case, to continue with the prosecution of this matter.
(Apr. 13, 2015 Decision and Entry, 4.)
{¶ 7} Appellant filed a timely appeal, assigning two assignments of error for our review:
{¶ 8} In his first assignment of error, appellant contends the trial court erred in determining that D.S. satisfied his burden of showing that R.C. 2907.05(A)(4) was unconstitutionally applied in this case. We agree.
{¶ 9} In reviewing objections to a magistrate's decision, "the trial court must conduct an independent analysis of the underlying issues, undertaking the equivalent of a de novo determination and independently assessing the facts and conclusions contained in the magistrate's decision." Shihab & Assoc. Co. v. Ohio Dept. of Transp., 168 Ohio App.3d 405, 2006-Ohio-4456, ¶ 13 (10th Dist.). The trial court then may, under the Rules of Juvenile Procedure, "hear a previously-referred matter, take additional evidence, or return a matter to a magistrate," and may "adopt or reject a magistrate's decision in whole or in part, with or without modification." Juv.R. 40(D)(4)(b). Appellate courts "generally review a trial court's adoption, denial or modification of a magistrate's decision for an abuse of discretion." Brunetto v. Curtis, 10th Dist. No. 10AP-799, 2011-Ohio-1610, ¶ 10. However, where the appeal from the trial court's action on a magistrate's decision presents only a question of law, the standard of review is de novo. Id. Thus, the constitutionality of a statute, a question of law, is reviewed de novo on appeal. State v. N.D.C., 10th Dist. No. 06AP-790, 2007-Ohio-5088, ¶ 23; In re D.R., 7th Dist. No. 12 MA 16, 2012-Ohio-5341, ¶ 16.
{¶ 10} "A regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality." State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 147 (1955). " 'A statute may be challenged as unconstitutional on the basis that it is invalid on its face or as applied to a particular set of facts.' " In re D.B. at ¶ 12, quoting State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, ¶ 17. "In an as-applied challenge, the challenger 'contends that application of the statute in the particular context in which he has acted, or in which he proposes to act, [is] unconstitutional.' " Id., quoting Ada v. Guam Soc. of Obstetricians & Gynecologists, 506 U.S. 1011 (1992). If a party challenges a statute on the ground that it is unconstitutional as applied to a particular set of facts, "the burden is upon the party making the attack to present clear and convincing evidence of a presently existing state of facts which makes the Act unconstitutional and void when applied thereto." Cleveland Gear Co. v. Limbach, 35 Ohio St.3d 229, 231 (1988), citing Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329 (1944), paragraph six of the syllabus.
{¶ 11} As stated by the Supreme Court of Ohio in Cross v. Ledford, 161 Ohio St. 469 (1954), "[c]lear and convincing evidence is that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Id. at paragraph three of the syllabus. "Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof." Id. at 477.
{¶ 12} In R.C. 2907.05, the legislature criminalized "gross sexual imposition." The section at issue, R.C. 2907.05(A)(4), states in pertinent part:
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 * * * when any of the following applies: * * * The 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). Acting "purposefully" is a culpable mental state as described in R.C. 2901.22(A) ().
{¶ 13} Appellee argued in his objections to the magistrate's decision that R.C. 2907.05(A)(4) is analogous to the statutory rape section, R.C. 2907.02(A)(1)(b), which the Supreme Court in In re D.B. determined to be unconstitutionally applied where the case involved two children under the age of thirteen. Appellant argues that the statutory rape statute is distinguishable, as R.C. 2907.02(A)(1)(b) prohibits "sexual conduct," a term that, as opposed to the definition for "sexual contact," excludes a mental state. (Emphasis sic.) (Appellant's Brief, 7.) Appellant cites three appellate district opinions—In re T.A., 2d Dist....
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