Opinion
No. 109284
10-22-2020
IN RE D.H. A Minor Child
Appearances: Rick L. Ferrara, for appellant. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Michael Short, Assistant Prosecuting Attorney, for appellee.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division
Case No. DL19102352
Appearances:
Rick L. Ferrara, for appellant. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Michael Short, Assistant Prosecuting Attorney, for appellee. FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Defendant-appellant juvenile D.H. ("appellant") brings the instant appeal challenging the trial court's order finding her delinquent as to one count of rape and two counts of gross sexual imposition. Appellant argues that the trial court erred by (1) denying her due process when the complaint was not sufficiently specific; (2) finding her delinquent when there was no indication of the date, time, or location of any of the alleged incidents; and (3) failing to conduct an allied offense analysis. After a thorough review of the record and law, we affirm the decision of the trial court.
I. Factual and Procedural History
{¶ 2} From December 2017 until May or June 2018, appellant lived with W.B. and her daughter, T.B. (d.o.b. October 25, 2014). Appellant is T.B.'s aunt; she babysat T.B. and interacted with her often. One day around Christmas 2018, W.B. saw appellant holding T.B. on her hip. W.B. asked appellant to put T.B. down, and W.B. observed T.B. grab her underwear in the front and say "ow" after appellant put her down. W.B. took T.B. into the restroom and asked if anyone had touched her down there. T.B. said "Ti-Ti," which referred to appellant.
{¶ 3} W.B. asked T.B. to show her how appellant had touched her, and T.B. pressed four fingers onto her vaginal area and shook them. T.B. told W.B. that appellant said not to tell W.B. or she would not receive any Christmas presents or dolls and that appellant would "beat [her] ass." T.B. later walked past appellant and said, "No more touching private parts."
{¶ 4} The next morning, W.B. asked appellant to brush T.B.'s teeth. Appellant tried to grab T.B.'s hand, but T.B. said, "No, I don't want to do that anymore." W.B. then gathered everyone in the kitchen, set T.B. on the kitchen island and pulled down her pants and underwear. She asked T.B. to demonstrate how appellant had touched her. T.B. squatted down and moved her finger from the back to the front of her vaginal area.
{¶ 5} W.B. then asked T.B. if anyone else had ever touched her, to which T.B. said "[N]o, Ti-Ti did it." Appellant denied the accusation and said, "Why would I touch my niece?" W.B. questioned T.B. further, and T.B. revealed that she and appellant would play tag, but that appellant would tag her vagina and buttocks.
{¶ 6} The next day, W.B. took T.B. to Rainbow Babies and Children's Hospital and later filed a police report with the Cleveland Police Department. Subsequently, the Cleveland Police Department and the Cuyahoga County Department of Children and Family Services began investigating the allegations against appellant.
{¶ 7} Detective Durst of the Cleveland Police Department and Cierra Lewis, a social worker with the Department of Children and Family Services, went to W.B.'s home to interview her and T.B. During the interview, T.B. told Durst and Lewis that appellant "stuck her finger up her butt and she like turned around and motioned it." T.B. further described how she and appellant would play tag and that appellant would touch her vagina and butt, saying, "go, tag, you're it."
{¶ 8} After the interview, Lewis made a referral for T.B. to receive services from FrontLine Service. Nicole Miller from FrontLine Services interviewed T.B., who disclosed to her that appellant "had touched her private parts, which was her vagina and bottom." T.B. reported nightmares and flashbacks of the incidents and stated that she avoided talking to her aunt. W.B. reported "increased irritability, anger, and defiant outbursts." Additionally, W.B. reported sexualized behaviors by T.B. with her Barbie dolls. Based upon this interview, Miller diagnosed T.B. with unspecified anxiety disorder.
{¶ 9} Julie Loyke, a pediatric nurse from University Hospitals Care Clinic, testified at trial as an expert witness. She had not examined T.B., but reviewed the emergency room medical records and a child behavioral history form. Based on this review, Ms. Loyke opined that T.B. had suffered sexual abuse and that her behaviors, particularly the sexualized acts with Barbie dolls, related to the abuse.
{¶ 10} Appellant was charged with two counts of rape, felonies of the first degree, and two counts of gross sexual imposition, felonies of the fourth degree. Trial was held, at the conclusion of which, the court found appellant not delinquent as to Count 1 (rape by digital penetration), but delinquent as to Counts 2, 3, and 4 (respectively, rape by anal digital penetration, gross sexual imposition by touching T.B.'s vagina, and gross sexual imposition by touching T.B.'s buttocks).
{¶ 11} The court held a dispositional hearing, where it imposed a suspended two-year commitment to the Ohio Department of Youth Services on Count 2, and a suspended six-month commitment on Counts 3 and 4. The sentences on Counts 3 and 4 were to be served concurrently with each other, but consecutively to the sentence on Count 2. Appellant was classified as a Tier III sex offender/child victim offender.
{¶ 12} Appellant filed the instant appeal, raising the following assignments of error for our review:
I. Appellant was denied due process of law by failure of the government to sufficiently allege specific incidents of sexual misconduct or their timeframes in the indictment.
II. Insufficient evidence supported a finding of guilt on any single charge for lack of indication of the date, time, or location of the alleged incidents.
III. The trial court committed plain error in failing to conduct an allied offense analysis.
II. Law and Analysis
A. Sufficient allegations in the indictment
{¶ 13} In appellant's first assignment of error, she argues that she was denied due process of law when specific instances of sexual misconduct were not sufficiently alleged in the delinquency complaint and that the timeline in the complaint was unconstitutionally vague.
{¶ 14} A juvenile delinquency proceeding commences upon the filing of a complaint. See In re A.G., 148 Ohio St.3d 118, 2016-Ohio-3306, 69 N.E.3d 646, ¶ 26, citing R.C. 2152.021; Juv.R. 2(F) and 10 (a delinquency case is not commenced by indictment or information, but rather it is the filing of a complaint that invokes the juvenile court's jurisdiction); In re M.W., 133 Ohio St.3d 309, 2012-Ohio-4538, 978 N.E.2d 164, ¶ 21.
{¶ 15} Juv.R. 10(B) requires that the complaint:
(1) State in ordinary and concise language the essential facts that bring the proceeding within the jurisdiction of the court, and in juvenile traffic offense and delinquency proceedings, shall contain the numerical designation of the statute or ordinance alleged to have been violated;
(2) Contain the name and address of the parent, guardian, or custodian of the child or state that the name or address is unknown;
(3) Be made under oath.
{¶ 16} Further, R.C. 2151.021(A)(1) provides that the complaint shall allege the particular facts upon which the allegation that the child is a delinquent child is based. "This requirement is * * * the bare minimum necessary to assure that the juvenile knows the nature of the charges against him. This is not to say that the allegations need to be overly specific, since this requirement 'does not "force a complainant to state in the complaint every fact surrounding each incident described."'" In re Wise, 7th Dist. Jefferson No. 05 JE 40, 2007-Ohio-1393, ¶ 119 (DeGenaro, J., concurring in part and dissenting in part), quoting In re Pieper Children, 74 Ohio App.3d 714, 719, 600 N.E.2d 317 (12th Dist.1991), quoting In re Sims, 13 Ohio App.3d 37, 43, 468 N.E.2d 111 (12th Dist.1983).
{¶ 17} "[J]uvenile 'complaints alleging delinquency are not to be read as strictly as criminal indictments."' In re Laquatra, 8th Dist. Cuyahoga No. 72020, 1998 Ohio App. LEXIS 195, *10 (Jan. 22, 1998), quoting In Re Elliott, 87 Ohio App.3d 816, 818, 623 N.E.2d 217 (12th Dist.1993). With regard to notice of the charges, "specificity as to the time and date of [the] offense is not required in an indictment." State v. Bogan, 8th Dist. Cuyahoga No. 84468, 2005-Ohio-3412, ¶ 10. This is because, particularly in cases involving sexual misconduct with a child, the precise times and dates of the alleged offense or offenses often cannot be determined with specificity. State v. Hemphill, 8th Dist. Cuyahoga No. 85431, 2005-Ohio-3726, ¶ 54, citing State v. Daniel, 97 Ohio App.3d 548, 647 N.E.2d 174 (10th Dist.1994). In such cases, the prosecution must set forth a time frame in the indictment and charge the accused with offenses that reasonably fall within that period. Daniel at 556.
{¶ 18} Accordingly, specific dates and times of the incidents were not required in this matter, and the time frame set forth in the complaint was sufficient. Moreover, the complaint contains the numerical designation of the statutes alleged to have been violated and the essential facts upon which the offenses are based, to wit: anal digital penetration of T.B. by force or threat of force (rape, Count 2), touching the vagina of T.B. by force or threat of force (gross sexual imposition, Count 3), and touching T.B.'s buttocks by force or threat of force (gross sexual imposition, Count 4). The complaint therefore complies with Juv.R. 10, and appellant's first assignment of error is overruled.
B. Date, Time, and Location of Incidents
{¶ 19} In her second assignment of error, appellant argues that there was insufficient evidence presented at trial as to the specific time and place that the alleged incidents occurred.
{¶ 20} Whether the evidence was legally sufficient to sustain the verdict is a question of law. State v. Ford, 8th Dist. Cuyahoga No. 88236, 2007-Ohio-2645, ¶ 47-48, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955). On review, the appellate court must determine, after viewing the evidence in a light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Ford at ¶ 48, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶ 21} The state is not required to prove the exact date of the offense, only that it occurred "on or about" a certain date or within a certain time period. "It has long been held that 'in a criminal charge the exact date and time are immaterial unless in the nature of the offense exactness of time is essential. It is sufficient to prove the alleged offense at or about the time charged.'" State v. Mathis, 8th Dist. Cuyahoga No. 83311, 2004-Ohio-2982, ¶ 18, quoting Tesca v. State, 108 Ohio St. 287, 140 N.E. 629 (1923), paragraph one of the syllabus; see also State v. Sellards, 17 Ohio St.3d 169, 478 N.E.2d 781 (1985).
{¶ 22} As noted above, when sexual misconduct with a child is involved, it is often difficult to determine specific dates of the alleged offenses. Hemphill, supra. "[M]any child victims are unable to remember exact dates and times, particularly where the crimes involved a repeated course of conduct over an extended period of time." State v. Yaacov, 8th Dist. Cuyahoga No. 86674, 2006-Ohio-5321, ¶ 17, citing State v. Mundy, 99 Ohio App.3d 275, 296, 650 N.E.2d 502 (2d Dist.1994); see also State v. Robinette, 5th Dist. Morrow No. CA-652, 1987 Ohio App. LEXIS 5996 (Feb. 27, 1987); State v. Barnecut, 44 Ohio App.3d 149, 152, 542 N.E.2d 353 (5th Dist.1988). "The problem is compounded where the accused and the victim are related or reside in the same household, situations which often facilitate an extended period of abuse." Robinette at 8. Thus, "[a]n allowance for reasonableness and inexactitude must be made for such cases considering the circumstances." Id.; Barnecut at 152.
{¶ 23} The victim in this matter, T.B., was between three and four years old at the time of the incidents. In addition, appellant is T.B.'s aunt and resided in the same household as T.B. for the time period in question. Taking these factors into consideration, we find that the state did establish that the offenses occurred within the time frame set forth in the complaint.
{¶ 24} Appellant further contends that venue was not established because T.B. did not state where the offenses occurred. Under Article I, Section 10 of the Ohio Constitution and R.C. 2901.12, "evidence of proper venue must be presented in order to sustain a conviction for an offense." State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 20. Venue is not a material element of an offense charged, but it is, nevertheless, a fact the state must prove beyond a reasonable doubt in a criminal prosecution unless it is waived by the defendant. State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983), citing State v. Draggo, 65 Ohio St.2d 88, 90, 418 N.E.2d 1343 (1981). "'A conviction may not be had in a criminal case where the proof fails to show that the crime alleged in the indictment occurred in the county where the indictment was returned.'" Hampton at ¶ 19, quoting State v. Nevius, 147 Ohio St. 263, 71 N.E.2d 258 (1947), paragraph three of the syllabus.
{¶ 25} Venue does not need to be proven in express terms, but rather, can be established by the totality of facts and circumstances of the case. State v. May, 2015- Ohio-4275, 49 N.E.3d 736, ¶ 22 (8th Dist.), citing State v. Chintalapalli, 88 Ohio St.3d 43, 45, 723 N.E.2d 111 (2000); Headley at 477; Hampton at ¶ 19. Thus, venue may be established by circumstantial evidence. See State v. Wright, 8th Dist. Cuyahoga No. 108026, 2019-Ohio-4460, ¶ 65, citing State v. Wheat, 10th Dist. Franklin No. 05AP-30, 2005-Ohio-6958, ¶ 10, 13 (although no witness testified that the offenses at issue occurred in Franklin County, state presented sufficient circumstantial evidence as to the location of the crime to establish venue).
{¶ 26} During the trial, the state presented the testimony of T.B.'s mother, W.B., who testified regarding her two different residences in the city of Cleveland during the time in question (December 2017 to December 2018). She stated that appellant resided with her and her children in a house on Fullerton Road in Cleveland from December 2017 to May or June of 2018, and in a house on Parkview Avenue in Cleveland from May or June 2018 until the beginning of 2019. Appellant confirmed the same when she testified that she lived with T.B. and W.B. on both Fullerton and Parkview. W.B. further testified that, at these locations, appellant often interacted with T.B. and would babysit T.B. and T.B.'s sister, Z.H.
{¶ 27} Upon reviewing the entire record in this case, we find the state presented sufficient circumstantial evidence to establish Cuyahoga County as the proper venue.
{¶ 28} Appellant's second assignment of error is overruled.
C. Allied offenses
{¶ 29} In her third assignment of error, appellant contends that the trial court committed plain error by failing to conduct an allied offense analysis.
{¶ 30} During the disposition hearing, the court stated, "There is no merger with respect to any of these, correct? Okay." Appellant acknowledges that she did not object to the court's determination that the offenses were not allied offenses. A defendant's failure to object to an alleged allied offense error at the trial-court level results in a waiver of the claim on appeal absent plain error. State v. Comen, 50 Ohio St.3d 206, 211, 553 N.E.2d 640 (1990). Moreover, "a forfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice." State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. However, we have previously held that "failure to merge allied offenses constitutes plain error." State v. Studgions, 8th Dist. Cuyahoga No. 94153, 2010-Ohio-5480, ¶ 15, citing State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31-32.
{¶ 31} Pursuant to R.C. 2941.25(A), "[w]here 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." However,
[w]here the defendant's conduct constitutes two or more offenses of dissimilar import, or where his [or her] conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain
counts for all such offenses, and the defendant may be convicted of all of them.R.C. 2941.25(B).
{¶ 32} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Supreme Court of Ohio held that if a defendant's conduct supports multiple offenses, the defendant can be convicted of all of the offenses if any one of the following is true: (1) the offenses are dissimilar in import or significance — in other words, each offense caused separate, identifiable harm; (2) the offenses were committed separately; or (3) the offenses were committed with separate animus or motivation. Id. at ¶ 25. "Two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable." Id. at paragraph two of the syllabus. Therefore, in determining whether offenses are allied under R.C. 2941.25, courts are instructed to consider three separate factors — the conduct, the animus, and the import. Id. at paragraph one of the syllabus.
{¶ 33} "Offenses are not allied when they are dissimilar in import or significance, or when the offenses are committed separately." State v. Bonner, 8th Dist. Cuyahoga No. 108273, 2019-Ohio-5243, ¶ 6, citing Ruff at ¶ 25.
{¶ 34} In the instant matter, appellant argues that gross sexual imposition (Count 3) is a lesser included offense of rape (Count 2), and consequently Count 3 should have merged with Count 2. In addition, appellant asserts that Counts 3 and 4 resulted from the game of "tag" between appellant and T.B., and therefore involved a single crime against the same victim, at the same time, using the same animus. Accordingly, appellant maintains that the court should also have merged Counts 3 and 4.
{¶ 35} The state argues that Counts 2 through 4 were offenses of dissimilar import that occurred over a period of time. Specifically, the state asserts that the evidence demonstrated that Count 2 was an entirely separate offense. The social worker that interviewed T.B., Ms. Lewis, testified that T.B. told her that appellant "stuck her finger up her butt and she like turned around and motioned it." Furthermore, the state contends that Counts 3 and 4 are separate offenses even though they both arose from the game of "tag." Ms. Lewis testified that T.B. described how she and appellant played "tag," and appellant touched T.B.'s vagina saying "go, tag, you're it" and then touched T.B.'s buttocks, saying the same thing.
{¶ 36} It is clear that the conduct in Count 3 was entirely separate from the conduct in Count 2; as such, these offenses were of dissimilar import and the trial court correctly declined to merge them. Further, we do not agree with appellant that the illicit game of tag should have been considered a single crime against the same victim, at the same time, and using the same animus. The game of tag involved separate instances of appellant touching T.B.'s buttocks and vagina. As these acts were committed separately, they do not merge. See In re D.C., 2018-Ohio-163, 104 N.E.3d 121, ¶ 24 (8th Dist.), quoting Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, at ¶ 25 ("offenses do not merge if 'the offenses were committed separately[.]"'). See also State v. Ferrell, 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377, ¶ 33 (holding that several counts of rape and gross sexual imposition did not merge as allied offenses even though the offenses all occurred close in time to one another because each offense involved different conduct); State v. Jordan, 2d Dist. Champaign No. 2016-CA-17, 2017-Ohio-5827, ¶ 11 (holding that touching of breast and vaginal area were separate acts, each with a distinct significance or import); State v. J.M., 10th Dist. Franklin No. 14AP-621, 2015-Ohio-5574 (rape counts relating to different parts of the body do not merge); State v. Chamberlain, 12th Dist. Brown No. CA2013-04-004, 2014-Ohio-4619, ¶ 71 ("It is well-established that distinct, different kinds of sexual activity constitute separate offenses for sentencing purposes."); State v. Daniels, 9th Dist. Summit No. 26406, 2013-Ohio-358 (defendant's digital penetration of the victim's vagina, fellatio, and vaginal intercourse with the victim were separate acts of rape for which defendant could be separately punished).
{¶ 37} Accordingly, the trial court did not err in determining that the offenses in Counts 2 and 3 or Counts 3 and 4 were not allied offenses of similar import. Appellant's third assignment of error is therefore overruled.
III. Conclusion
{¶ 38} After thoroughly reviewing the record, we affirm the trial court's determination that appellant was delinquent of Counts 2, 3, and 4, and appellant's resulting sentence. Appellant was not denied due process because the indictment contained sufficient allegations regarding the conduct and time frame of the offenses. In addition, there was sufficient evidence presented at trial as to the time and location that the offenses occurred. Finally, the court did not commit plain error in declining to merge offenses because the rape count and the two counts of gross sexual imposition involved separate acts and were therefore not allied offenses of similar import.
{¶ 39} Judgment affirmed.
It is ordered that appellee recover from appellant 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 common pleas court to carry this judgment into execution. The trial court's adjudication of delinquency having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of commitment.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
FRANK D. CELEBREZZE, JR., JUDGE MARY J. BOYLE, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR