[Cite as In re J.O.,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

IN RE: J.O. :

: C.A. CASE NO. 25903

: T.C. NO. 2013-3848-01

: (Civil appeal from Common Pleas Court, Juvenile Division) :

:

..........

OPINION

Rendered on the 27th day of June , 2014.

..........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

BROOKE M. BURNS, Atty. Reg. No. 0080256, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant

..........

DONOVAN, J. [Cite as In re J.O.,

.] {¶ 1} Appellant J.O. appeals from a judgment of the Montgomery Court of

Common Pleas, Juvenile Division, which adjudicated him to be a delinquent for having

committed rape and designated him a Tier III juvenile sex offender/child victim offender.

J.O. filed a timely notice of appeal with this Court on September 6, 2013.

{¶ 2} The incident which formed the basis for the instant appeal occurred on May

11, 2013, when the victim, sixteen year-old S.H., attended a play rehearsal at her church.

Also attending the rehearsal was J.O. After the rehearsal was over, J.O., whom had known

S.H. for approximately two months, approached her and said, “You should give me a ride

home.” S.H. complied, and she and J.O. left the church in her car.

{¶ 3} While driving, S.H. and J.O. initially discussed an earlier situation where he

had swiped his hand over her vagina while she was retrieving her belongings from a closet at

their church. S.H. testified that she apologized to J.O. for the way she handled the situation.

Even though the touch was inappropriate and unwanted, S.H. testified that she told J.O. that

she regretted having her boyfriend handle the situation, instead of confronting J.O. herself.

S.H. also told J.O. that she had a “crush” on him when he first started attending their church.

{¶ 4} At that point, J.O. put his hand on her thigh and started rubbing it. When

S.H. asked him what he was doing, J.O. stated, “Well, isn’t it obvious?” J.O. asked S.H. to

give him a “blow job.” S.H. declined, stating, “that thing doesn’t come near my mouth.”

S.H. testified that J.O. started talking about having sex with her. S.H. testified that she told

J.O. that she was a virgin and was saving herself for marriage. Undeterred, J.O. pulled his

penis out of his pants, grabbed S.H.’s right hand, and placed her hand on his penis, moving it

up and down. S.H. pulled her hand away and placed it back on the steering wheel, stating, 3

“Somebody can see.” J.O. replied, “Nobody can see.”

{¶ 5} J.O. also began repeatedly asking her to pull over somewhere so that they

could have sex. S.H. testified that J.O.’s tone of voice indicated to her that they were going

to do what he wanted to do “no matter what.” In response to his repeated demands to pull

over, S.H. testified that she was shaking her head no, but stated either, “I don’t know,” or “I

don’t care.” Eventually, J.O. was able to direct S.H. to drive to the back of a nearby parking

lot and stop between two tractor trailers where they ostensibly would not be seen.

{¶ 6} J.O. slid closer to S.H. and put his hand down her pants. S.H. testified that

J.O. placed his fingers in her vagina. J.O. then told S.H. that she should show him her

breasts. S.H. testified that because she felt intimidated and helpless, she complied with

J.O.’s request and pulled up her shirt. J.O. responded by putting his mouth on her breast.

{¶ 7} J.O. then told S.H. that they should get in the backseat of the car. When

S.H. asked why, J.O. stated, “Because it was easier.” S.H. testified that J.O.’s tone of voice

at that point was, “We’re going to do what I want to do.” Once in the backseat of the car,

J.O. told S.H. to take off her pants, but she said “No.” S.H. testified on direct that J.O. then

pushed her pants down while she was trying to pull them back up. On cross- examination,

S.H. admitted that in her statement to police she said that she took her pants off herself at

J.O.’s insistence.

{¶ 8} Nevertheless, once S.H.’s pants had been removed, J.O. pulled his penis out

of his pants. S.H. testified that she told him, “Don’t put that thing in me.” J.O replied, “I

won’t. I’ll only rub it on [your vagina].” J.O. then directed S.H. to remove her underwear,

but S.H. told him, “No.” J.O. simply moved her underwear aside and began rubbing his 4

penis on her vagina. While J.O. was doing that, S.H. testified that she kept telling him,

“No. Don’t. Stop.” J.O. stated “Just once.” S.H. said, “No.” J.O., however, proceeded to

insert his penis into S.H.’s vagina. S.H. testified that she struggled to get out from under

J.O., but he wouldn’t stop despite her repeatedly telling him, “No.” S.H. testified that J.O.

ultimately pulled out before ejaculating on her breast and a section of the backseat.

{¶ 9} S.H. put her clothes back on, got in the front seat of her car, and drove J.O.

to his house. S.H. returned to her house where she lived with her mother and father, and her

friend C.H. After some questioning regarding her sullen demeanor, S.H. informed C.H. that

J.O. had raped her. S.H. told C.H. that she “felt disgusting” and that she “didn’t do enough

to stop [the rape]” from occurring.

{¶ 10} On the following day, S.H. returned to the church to rehearse the play. J.O.

also attended the rehearsal. When he observed S.H., J.O. asked her if “she was still sore.”

S.H. told him to “shut the * * * up,” and she left the church. Upon returning home, S.H.

eventually told her parents that she had been raped. S.H.’s father immediately called the

police, and J.O. was arrested shortly thereafter.

{¶ 11} On May 31, 2013, J.O. was charged by complaint with delinquency for

committing forcible rape and gross sexual imposition. An adjudicatory hearing was held

before the juvenile court on July 9, 2013. After hearing the testimony of S.H. and C.H., the

juvenile court found J.O. responsible for the rape charge and not responsible for the charge

of gross sexual imposition. By reason of J.O.’s commission of the rape, the juvenile court

found that he had violated the terms of his probation in a previous case.1 On August 9,

1 J.O. was previously adjudicated delinquent for committing a rape in Case 5

2013, the juvenile court ordered J.O. to be committed to the Department of Youth Services

for a minimum of one year until he reached the age of twenty-one on the rape charge and for

a minimum of one year until he reached the age of twenty-one on the probation violation,

both commitments to be served consecutively. The juvenile court also designated J.O. as a

Tier III juvenile sex offender/child victim offender.

{¶ 12} It is from this judgment that J.O. now appeals.

{¶ 13} J.O’s first assignment of error is as follows:

{¶ 14} “THE MONTGOMERY JUVENILE COURT VIOLATED J.O.’S RIGHT

TO DUE PROCESS WHEN IT ADJUDICATED HIM DELINQUENT OF RAPE BASED

ON UNRELIABLE EVIDENCE THAT DOES NOT SUPPORT THE FINDING BEYOND

A REASONABLE DOUBT, IN VIOLATION OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION

16 OF THE OHIO CONSTITUTION, AND JUV. R. 29.”

{¶ 15} In his first assignment of error, J.O. contends that the juvenile court’s

decision finding him delinquent for committing rape was against the manifest weight of the

evidence. Specifically, J.O. argues that S.H.’s testimony was inconsistent and therefore,

lacked credibility. Additionally, J.O. asserts that some of the comments made by the

juvenile court when it adjudicated him delinquent for rape do not support its finding beyond

a reasonable doubt.

{¶ 16} “When a conviction is challenged on appeal as being against the weight of

the evidence, an appellate court must review the entire record, weigh the evidence and all

No. JC 2012-5789. 6

reasonable inferences, consider witness credibility, and determine whether, in resolving

conflicts in the evidence, the trier of fact ‘clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.’ ” State

v. Hill, 2d Dist. Montgomery No. 25172,

, quoting State v. Thompkins,

,

(1997). “A judgment should be reversed as being

against the manifest weight of the evidence ‘only in the exceptional case in which the

evidence weighs heavily against the conviction.’ ”

quoting State v. Martin,

,

(1st Dist. 1983).

{¶ 17} In State v. Peterson,

,

(10th Dist.), the

Tenth District Court of Appeals observed that:

In addressing a manifest weight of the evidence argument, we are able

to consider the credibility of the witnesses. State v. Cattledge, 10th Dist.

No. 10AP-105,

, ¶ 6. However, in conducting our review,

we are guided by the presumption that the jury, or the trial court in a bench

trial, “ ‘is best able to view the witnesses and observe their demeanor,

gestures and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.’ ”

quoting Seasons Coal Co. v.

Cleveland,

(1984). Accordingly, we afford great

deference to the jury's determination of witness credibility. (Citations

omitted.)

.

{¶ 18} Initially, we note that J.O. was found to be delinquent for committing

forcible rape, in violation of R.C. 2907.02(A)(2), which states in pertinent part: 7

(A)(2) No person shall engage in sexual conduct with another when

the offender purposely compels the other person to submit by force or threat

of force.

{¶ 19} When it found J.O. delinquent for raping S.H., the juvenile court made the

following statement:

The victim in this case has testified and shared information which

many of us would find very, very questionable in decision making and the

process that – that appeared to occur in this particular matter. At the same

time, there’s a lot of things that, to many of us, as adults, would say don’t

make a lot of sense at all. Yet, the testimony in this case also had what I call

a ring of truth.

{¶ 20} Additionally, after the juvenile court stated that S.H.’s testimony “had *** a

ring of truth to it,” it made the following statement regarding her testimony:

The Court finds that the testimony that has been presented lets the

Court find that [J.O.] is responsible beyond a reasonable doubt for the

charge of rape, or delinquency by reason of rape, in that there is clear

testimony, really undisputed, that the victim, at the time of the rape, said no,

no, no, no, no. And no, at anytime, means no. [J.O.] proceeded.

{¶ 21} J.O. argues that the juvenile court’s comment that S.H.’s testimony “had ***

a ring of truth to it,” establishes that her testimony was “so lacking in credibility that the

juvenile court’s adjudication of delinquency” was against the manifest weight of the

evidence. In support of his argument, J.O. directs our attention to certain inconsistencies 8

between S.H.’s testimony during direct examination and when she was cross-examined by

defense counsel. Upon review of the record, the only inconsistency between S.H.’s direct

testimony and cross-examination testimony occurred when she testified on direct that J.O.

pushed her pants down while she was trying to pull them back up after they got into the

backseat. On cross- examination, S.H. admitted that in her statement to police she said that

she took her pants off herself at J.O.’s insistence. We note, however, that contrary to J.O’s

assertion, S.H. never testified that she took off her underwear. Rather, S.H. testified that

after she expressly told him not to, J.O. pushed her panties aside and began rubbing his penis

on her vagina. S.H. testified that this occurred just before he inserted his penis into her

vagina, also after she had repeatedly told him “no.”

{¶ 22} S.H. unequivocally testified that the reason she complied with J.O’s initial

requests to pull over, take off her shirt, get in the back seat, and remove her pants was

because she felt intimidated and helpless. Before J.O. inserted his penis into her vagina,

S.H. testified that she told him “no” repeatedly and “don’t put that thing in me.” During the

sex act, S.H. testified that she continued to say “no” and tried unsuccessfully to push J.O. off

of her. Despite how many times S.H. asked him to stop, J.O. kept having sex with her until

he ejaculated.

{¶ 23} Based on this evidence, the trial court found that J.O. was delinquent for

raping S.H. Despite one minor inconsistency, S.H.’s testimony provided a sufficient basis

for the juvenile court to find the essential elements of the rape proven beyond a reasonable

doubt. Moreover, the juvenile court reasonably found S.H.’s version of the events to be

credible. On the record before us, we cannot conclude that the juvenile court clearly lost its 9

way and created a manifest miscarriage of justice.

{¶ 24} J.O’s first assignment of error is overruled.

{¶ 25} Because they are interrelated, J.O.’s second and third assignments of error

will be discussed together as follows:

{¶ 26} “THE MONTGOMERY COUNTY JUVENILE COURT ERRED WHEN

IT CLASSIFIED J.O. AS A TIER III JUVENILE OFFENDER REGISTRANT BECAUSE

THE IMPOSITION OF ANY CLASSIFICATION PERIOD THAT EXTENDS BEYOND

THE AGE JURISDICTION OF THE JUVENILE COURT VIOLATES A YOUTH’S

RIGHT TO DUE PROCESS AND CONSTITUTES CRUEL AND UNUSUAL

PUNISHMENT. EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION; OHIO CONSTITUTION, ARTICLE I, SECTION 16.”

{¶ 27} “J.O. WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF

COUNSEL WHEN COUNSEL FAILED TO CHALLENGE THE CONSTITUTIONALITY

OF A CLASSIFICATION THAT EXTENDED BEYOND THE JURISDICTION OF THE

JUVENILE COURT. FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO

CONSTITUTION.”

{¶ 28} In his second assignment, J.O. argues that his classification as a Tier III

juvenile sex offender/child victim offender registrant violates his right to due process of law

and the constitutional prohibition against cruel and unusual punishment. In his third

assignment, J.O. contends that his counsel was ineffective for failing to object to the trial

court’s decision to classify him as a Tier III juvenile sex offender because the designation 10

would extend past his attainment of twenty-one years of age and therefore, outside the age

jurisdiction of the juvenile court.

{¶ 29} Initially, we note that J.O. failed to object to the constitutionality of his

classification as a Tier III juvenile sex offender/child victim offender registrant at his

dispositional hearing. The State argues that J.O. waived appellate review of this issue

because he did not raise it in the juvenile court.

{¶ 30} “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.” State v. Awan,

,

(1986), syllabus. However,

“[t]he waiver doctrine * * * is discretionary.” In re M.D.,

,

(1988), syllabus. Even in a case of clear waiver, an appellate court may “consider

constitutional challenges to the application of statutes in specific cases of plain error or

where the rights and interests involved may warrant it.” Id.; see In re J.F.,

,

,

(2d Dist.) (saying that “parties may raise plain

error on appeal, even where objections were not filed in juvenile court”). Courts will

consider unraised issues when doing so “best serve[s]” “the interests of justice.” In re

A.R.R., 4th Dist. Ross No. 09CA3105,

, ¶ 4.

{¶ 31} J.O. contends that his right to due process of law, as well as the

constitutional prohibition against cruel and unusual punishment, has been violated because

his classification as a Tier III juvenile sex offender imposes punitive sanctions upon him that

will extend past his twenty-first birthday, which is outside the age jurisdiction of the juvenile

court. [Cite as In re J.O.,

.] {¶ 32} R.C. 2152.82(B)(1) states as follows:

(1) The judge shall include in the order a statement that, upon

completion of the disposition of the delinquent child that was made for the

sexually oriented offense or child-victim oriented offense upon which the

order is based, a hearing will be conducted, and the order and any

determinations included in the order are subject to modification or

termination pursuant to sections 2152.84 and 2152.85 of the Revised Code.

{¶ 33} Moreover, R.C. 2152.82(C) states in pertinent part:

(C) *** [A]n order issued under division (A) of the section and any

determinations included in the order shall remain in effect for the period of

time specified in section 2950.07 of the Revised Code, subject to a

modification or termination of the order under section 2152.84 or 2152.85 of

the Revised Code, and section 2152.851 of the Revised Code applies

regarding the order and the determinations. If an order is issued under

division (A) of this section, the child’s attainment of eighteen or twenty-one

years of age does not affect or terminate the order, and the order remains in

effect for the period of time described in this division.

{¶ 34} R.C. 2152.82 acts to continue the jurisdiction of the juvenile court to

classify juveniles beyond their twenty-first birthday. In re C.A., 2d Dist. Montgomery No.

23022,

. The legislature retains the power to define the jurisdiction of the

courts as long as powers inherently reserved for the judiciary are not infringed upon. Seventh

Urban, Inc. v. University Circle,

,

(1981). Laws limiting

rights, other than fundamental rights, are constitutional with respect to substantive due 12

process and equal protection if the laws are rationally related to a legitimate goal of

government. State v. Thompkins,

,

(1996).

{¶ 35} J.O. argues that punishment is not one of the statutory purposes or goals of

R.C. Chapter 2950, but this does not mean that sex offender registration requirements may

not be imposed. The Ohio Supreme Court has said that “[p]unishment is not the goal of the

juvenile system, except as necessary to direct the child toward the goal of rehabilitation.” In

re Caldwell,

,

(1996). Placing a juvenile in a

secure facility for several years is undoubtedly punishment. But courts may order juvenile

detention to achieve the goals of public protection and juvenile rehabilitation. Similarly,

while imposing R.C. Chapter 2950's registration and notification requirements may be

punishment, doing so may help achieve these same goals. In re I.A., 2d Dist Montgomery

No. 25078,

.

{¶ 36} In the instant case, the classification authorized by R.C. 2152.82 as applied

to J.O. is not violative of his right to due process nor does its application result in cruel and

unusual punishment. There is no per se prohibition against Ohio juvenile courts imposing a

registration requirement that extends beyond a person’s attainment of age twenty one. State

ex rel. N.A. v. Cross,

,

,

. We note that

J.O. does not point to any procedural safeguards that are undermined by a juvenile’s

classification as a sex offender, the requirements of which continue after attainment of the

age of twenty-one. “Indeed, the fact that juvenile courts may review previous sex offender

classifications and dispense with them indicates that juvenile sex offenders receive greater

due process protection than adult sex offenders. See R.C. 2152.84(A)(2)(b) and R.C. 13

2152.85(A).” In re N.Z., 11th Dist. Lake No. 2012-L-100,

. In the

instant case, while J.O.’s designation as a Tier III sex offender was mandatory pursuant to

R.C. 2152.82(C), the juvenile court informed him at the dipositional hearing that his

designation could be modified or terminated altogether depending the progress he made

while at DYS. Accordingly, the juvenile court decision to designate J.O. a Tier III juvenile

sex offender did not violate his constitutional right to due process and to be free from cruel

and unusual punishment. Pursuant to R.C. 2152.82(C), the juvenile court had the

jurisdiction to designate J.O. as a Tier III juvenile sex offender even though that designation

could potentially extend past his attainment of twenty-one years of age.2

{¶ 37} Lastly, J.O. argues that his counsel’s failure to challenge the

constitutionality of the juvenile court’s designation of him as a Tier III juvenile sex offender

amounted to ineffective assistance of counsel. However, the juvenile court was required by

the explicit language in R.C. 2152.82 to designate J.O. a Tier III juvenile sex offender

because he had already been previously adjudicated delinquent for rape in Case No. JC

2012-5789. Moreover, we have concluded that J.O.’s constitutional rights were not

violated by his designation as a Tier III juvenile sex offender. J.O. is, therefore, unable to

2 We note that in In re Raheem L., the First District Court of Appeals held that due process, under both the federal and Ohio Constitutions, did not prohibit the legislature from punishing children for delinquency beyond their twenty-first birthdays by classifying them as juvenile sex offender registrants under R.C. 2152.83(A) because no fundamental right was implicated, and the punishment was rationally related to the government’s legitimate interest in enforcing its criminal laws against juveniles.

,

, ¶ 12 (1st Dist.); discretionary appeal not allowed,

,

,

. 14

establish that he was prejudiced by his counsel’s failure to challenge the constitutionality of

his designation. Accordingly, J.O. is unable to demonstrate that he received ineffective

assistance of counsel.

{¶ 38} J.O.’s second and third assignments of error are overruled.

{¶ 39} All of J.O’s assignments of error having been overruled, the judgment of the

trial court is affirmed.

..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

Kirsten A. Brandt Brooke M. Burns Hon. Nick Kuntz