M.D., In re
| Decision Date | 10 August 1988 |
| Docket Number | No. 87-640,87-640 |
| Citation | 38 Ohio St.3d 149,527 N.E.2d 286 |
| Parties | In re M.D. |
| Court | Ohio Supreme Court |
Syllabus by the Court
The waiver doctrine in State v. Awan (1986), 22 Ohio St.3d 120, 22 OBR 199, 489 N.E.2d 277, is discretionary. Even where waiver is clear, this court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it.
On July 25, 1985, appellant, M.D. 1 (a female, then age twelve), was charged with one count of complicity to rape, in violation of R.C. 2907.02 and 2923.03(A)(4). The complaint alleged that on July 8, 1985, M.D. unlawfully caused an innocent and irresponsible person, David (then age five), to commit the rape of one Cassie (then age five). A denial was entered on October 4, 1985, and defense counsel later moved to dismiss the charge, arguing that the prosecution of a twelve year old for a felony sex crime involving an incident of "playing doctor" was unconstitutional and contrary to R.C. Chapter 2151. This motion was overruled.
A trial to the court began on April 14, 1986. Both of the children involved in the alleged rape were deemed competent to testify, as was M.D.'s nine-year-old sister. The three children testified that they, with M.D., were "playing doctor," and that at the direction of M.D., David dropped his pants and placed his penis in Cassie's mouth, ostensibly because M.D. had instructed them to take temperature that way. M.D., who had originally denied being present when these events took place, testified at trial that she was present and observed the conduct between David and Cassie. The trial court found each element of the offense charged had been established beyond a reasonable doubt and adjudicated M.D. a delinquent child, pursuant to Juv.R. 29(F). She was placed on probation under the supervision of her parents.
The court of appeals affirmed, holding that appellant had raised for the first time on appeal the issue of the constitutionality of applying the rape statute to children under the age of thirteen, and had thus waived such challenge. A motion for reconsideration was denied.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
John T. Corrigan, Pros. Atty., and Kenneth J. Lusnia, Cleveland, for appellee.
Mark N. Miller, Cleveland, for appellant.
This case presents an issue involving the prosecution of juveniles under the age of thirteen as delinquents for conduct, characterized as "playing doctor," allegedly constituting felony sex crimes. We hold that to bring such charges in juvenile court, under the instant circumstances, is contrary to R.C. Chapter 2151 and Juv.R. 9(A), violates the intake policy of the Cuyahoga County Juvenile Court, and public policy in general, and thus constitutes a denial of due process of law. We must, therefore, reverse the judgment of the court of appeals and vacate the adjudication of delinquency in this case.
As a threshold matter, we must consider the doctrine of waiver, relied on by the court of appeals in affirming the trial court. In State v. Awan (1986), 22 Ohio St.3d 120, 22 OBR 199, 489 N.E.2d 277, this court held in the syllabus:
"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 state's orderly procedure, and therefore need not be heard for the first time on appeal." (Emphasis added.)
We find the court of appeals erred in relying on this doctrine in the instant case. Appellant, in her motion to dismiss the complaint against her in the trial court, argued that her prosecution for complicity to rape was repugnant to R.C. 2151.01, Juv.R. 9(A), and local intake policy as to juvenile sex offenses, all of which, she argued, "implicates not only rights under the Constitution but also the psychological and social well-being of young children." We grant that the constitutional challenge was here made in general terms. However, the due process considerations of appellant's arguments are apparent, and sufficient to avoid the waiver issue.
Furthermore, we note that the waiver doctrine announced in Awan is discretionary. In the criminal context, Crim.R. 52(B) provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." See, also, Evid.R. 103(D). Thus, even where waiver is clear, this court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it. See, e.g., State v. Zuern (1987), 32 Ohio St.3d 56, 63, 512 N.E.2d 585, 592.
In considering appellant's constitutional challenge herein, we are somewhat hampered, as was the court of appeals, by appellant's failure to provide a transcript of the proceedings below. We must, therefore, presume the validity of the proceedings in juvenile court. We are not, however, required to affirm on this basis alone, as appellant challenges only the discretion initially exercised by the prosecutor in bringing the instant charges. Cf. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 15 O.O.3d 218, 220, 400 N.E.2d 384, 385-386. Such a challenge may be decided on the documents and exhibits found in the record certified to this court, in addition to the findings of the juvenile court below. Our review leads to the inescapable conclusion that the conduct of appellant and the other children involved herein did not constitute a sexual assault or complicity thereto, as proscribed by R.C. 2907.02 and 2923.03, but rather could more accurately be characterized as childhood curiosity and exploration.
The events giving rise to the instant charges did not meet each element of the offense of complicity to rape. R.C. 2923.03 provides, in pertinent part:
It is axiomatic, as reflected in subsection (C) of this statute, that an offense must actually be committed before a person may be convicted as an accomplice. Here, the underlying offense of rape did not occur. We emphasize, first, that all sections of the Revised Code defining offenses must be liberally construed in favor of the accused. R.C. 2901.04. 2 The offense of rape is generally defined in R.C. 2907.02 as follows:
The key term in this section is "sexual conduct," which is specifically defined in R.C. 2907.01(A):
Fellatio is the only proscribed act which resembles what occurred herein. Although fellatio is not defined in the Revised Code, our construction of that term according to common usage 3 is guided by its dictionary definition, i.e., "the practice of obtaining sexual satisfaction by oral stimulation of the penis." Webster's Third New International Dictionary (1986), at 836. In addition, other jurisdictions that have considered the term have defined fellatio to encompass elements of either stimulation or sexual satisfaction, or both. See, e.g., State v. Gonzales (1985), 219 Neb. 846, 366 N.W.2d 775; Thomas v. State (1984), 301 Md. 294, 483 A.2d 6; Perkins v. North Carolina (D.N.C.1964), 234 F.Supp. 333. Finally, we note that mere penetration of the oral cavity is not sufficient to complete the offense, unlike vaginal or anal intercourse. Here, the record demonstrates neither an element of sexual satisfaction nor of oral stimulation. We seriously doubt whether either element is physiologically or emotionally possible in a child of the tender age of five, and the record presented to us does not suggest otherwise. Furthermore, it is a well-established presumption that an infant under the age of fourteen is incapable of committing the crime of rape, rebuttable only upon proof that such child has reached the age of puberty. Williams v. State (1846), 14 Ohio 222, at syllabus; Hiltabiddle v. State (1878), 35 Ohio St. 52. Fellatio did not occur here, thus no rape was committed to which appellant could be an accessory.
Adjudicating a child as "delinquent" under circumstances where, as here, the child has neither committed a crime nor violated a lawful order of the juvenile court is obviously contrary to R.C. Chapter 2151. 4 Even assuming, however, given the paucity of the record before us, that the conduct here technically involved a "rape" as that term is statutorily defined, we hold that prosecution of M.D. under these circumstances violates the underlying public policy of this state as expressed in R.C. Chapter 2151 and the Rules of Juvenile Procedure. R.C. 2151.01 provides, in pertinent part:
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