[Cite as In re J.H.,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: J.H. C.A. No. 27528

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DL 13-03-000460

DECISION AND JOURNAL ENTRY

Dated: October 28, 2015

CARR, Judge.

{¶1} Appellant, J.H., now appeals from the judgment of the Summit County Court of

Common Pleas, Juvenile Division, seeking to challenge his adjudication of delinquency by virtue

of his having committed the offense of sexual imposition. This Court affirms in part, reverses in

part, and remands for further proceedings.

I.

{¶2} Prior to the events giving rise to this appeal, J.H. and O.H. were friends who had

known each other for about four to five years. J.H. was seventeen years old, O.H. was sixteen

years old, and the two belonged to the same youth group. In July 2012, both attended a

weeklong outing with their youth group. The group went to see a movie one night, and O.H. sat

next to J.H. The two held hands and, at some point, J.H. reached his hand into O.H.’s athletic

shorts in an attempt to digitally penetrate her. O.H. then drew away from J.H. and did not speak 2

to him again. Approximately two weeks later, O.H. told her mother about the incident, and her

mother took her to file a police report.

{¶3} A detective filed a complaint against J.H., alleging that he appeared to be a

delinquent child by reason of his having committed the crime of sexual imposition, as defined by

R.C. 2907.06(A)(1). Because the alleged conduct underlying the complaint occurred in Stark

County, the detective filed the complaint in the Stark County Court of Common Pleas, Juvenile

Division. J.H. initially entered an admission to the charge, and a magistrate adjudicated him

delinquent based on his admission. The matter was then certified to the Summit County Court of

Common Pleas, Juvenile Division, for a dispositional hearing because J.H. was a Summit County

resident.

{¶4} After J.H.’s case was transferred to Summit County, he notified the court that he

wished to withdraw his admission to the charge. As such, the case was formally returned to

Stark County to allow him to file a motion to withdraw his admission. Stark County ultimately

granted J.H.’s motion and set the matter for an adjudicatory hearing before a magistrate.

Following the hearing, the magistrate adjudicated J.H. delinquent by virtue of his having

committed the crime of sexual imposition. J.H. filed objections to the magistrate’s decision, but

the court overruled his objections and adopted the magistrate’s adjudication of delinquency. The

matter was then once again certified to Summit County for disposition.

{¶5} At the conclusion of the dispositional hearing, the Summit County Court of

Common Pleas, Juvenile Division, placed J.H. on offender-specific probation and ordered him to

undergo psychological treatment. The court also ordered him not to have any contact with the

victim and classified him as a Tier I sexual offender registrant. 3

{¶6} J.H. now appeals from his adjudication of delinquency and raises two assignments

of error for our review.

II.

ASSIGNMENT OF ERROR I

THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE SINCE THE STATE OF OHIO FAILED TO PROVE EACH AND EVERY ELEMENT OF THE CRIME CHARGED BEYOND A REASONABLE DOUBT.

{¶7} In his first assignment of error, J.H. argues that his adjudication of delinquency is

against the manifest weight of the evidence. He also asserts a sufficiency challenge, as he claims

that the State failed to prove each element of the charge against him beyond a reasonable doubt.

We address each argument in turn, beginning with his challenge to the sufficiency of the

evidence.

Sufficiency of the Evidence

{¶8} “[T]his Court applies the same sufficiency * * * standard[] of review in a juvenile

delinquency case that it applies in an adult criminal appeal due to the inherently criminal aspects

of delinquency proceedings * * *.” (Internal quotations and citations omitted.) In re V.H., 9th

Dist. Summit No. 26894,

.

An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to 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. Jenks,

(1991), paragraph two of the syllabus. “The test for sufficiency

requires a determination of whether the State has met its burden of production at trial.” State v.

Edwards, 9th Dist. Summit No. 25679,

. 4

{¶9} “No person shall have sexual contact with another, not the spouse of the

offender[,] * * * when * * * [t]he offender knows that the sexual contact is offensive to the other

person * * * or is reckless in that regard.” R.C. 2907.06(A)(1). “Offensive sexual contact is, by

definition, not consensual.” State v. Raber, 9th Dist. Wayne No. 13CA0020,

. “An element of [the] offense [of sexual imposition] is knowledge of the offender that the

contact was offensive or recklessness in not knowing.” Akron v. Hawley, 9th Dist. Summit No.

12556,

, *3 (Jan. 21, 1987).

A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.

Former R.C. 2901.22(B).

A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.

Former R.C. 2901.22(C). “‘Sexual contact’ means any touching of an erogenous zone of

another, including without limitation the thigh, genitals, * * * [or] pubic region, * * * for the

purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B).

{¶10} O.H. was sixteen years old when the facts giving rise to this appeal occurred. She

testified that she and J.H. were friends and had known each other for about four to five years

because they attended the same church. Both belonged to their church’s youth group and, in July

2012, the group went on a weeklong trip. During the days, the group members would perform

various community services and, during the evenings, they would relax and engage in social

activities. The last Saturday night of their trip, the group decided to see a movie together. 5

{¶11} O.H. testified that she was one of the last members of the youth group to get her

movie ticket, so most of the group was already seated when she walked into the theater. O.H.

spotted an empty seat next to J.H. and sat down beside him. She testified that no one was sitting

directly on her other side, but there were people seated farther down the row on her side and one

member of their group was sitting on J.H.’s other side, such that he occupied the middle seat.

Otherwise, all of the other members of the youth group were seated in the rows in front of O.H.

and J.H.

{¶12} O.H. testified that she and J.H. watched the movie for approximately 20 minutes

before they started holding hands. She did not say which of them initiated the contact, but she

denied that she and J.H. had any romantic history. According to O.H., the two had always just

been friends. While she admitted that J.H. had tried to kiss her on one occasion, she testified that

she thought he had tried to do so as a joke.

{¶13} On direct examination, O.H. testified that she and J.H. held hands for about 10

minutes before she decided that she felt uncomfortable doing so. She then removed her hand

from his, placed her hands in her lap, and continued to watch the movie. A short while later,

O.H. felt a light sensation on her hip bone beneath the athletic shorts and the t-shirt she was

wearing. O.H. testified that the sensation felt “like a bug,” so she did not react to it. Instead, she

ignored it and continued to watch the movie. Shortly thereafter, however, O.H. felt J.H.’s hand

in her shorts. She testified that when she felt J.H.’s hand slip under her underwear and touch the

outside of her vagina, she looked at J.H. and asked him what he was doing. According to O.H.,

J.H. responded “you know what I’m doing.” O.H. testified that she then drew away, tucked

herself into a fetal position, and sat in that manner for the remainder of the movie. She estimated

that J.H.’s hand was inside her shorts for a few seconds before she pulled away. According to 6

O.H., when she pulled away from J.H. and he removed his hand, he told her not to tell anyone

what had happened. She indicated that she never gave J.H. consent to place his hand inside her

shorts.

{¶14} After O.H. and her mother reported this incident to the police, her case was

assigned to Detective Matthew Shatzer. Detective Shatzer asked O.H. to place a recorded phone

call to J.H. and to prompt him about the incident. The recording of the call itself was not

introduced into evidence, but O.H. summarized the call during her testimony. According to

O.H., J.H. ultimately told her that she “should have come to [him]” if what had happened

bothered her. She testified that she then got upset and ended the call. She agreed to call J.H.

back, however, and apologized for getting upset. She testified that J.H. then gave her “a little

I’m sorry.” When asked what J.H. specifically said, O.H. testified that he said “[m]y bad.”

{¶15} During the course of his investigation, Detective Shatzer interviewed J.H. on two

occasions. J.H. admitted that he placed his hand inside O.H.’s shorts and tried to digitally

penetrate her, but said that he could not do so because her shorts were too tight. Detective

Shatzer testified that J.H. repeatedly said that O.H. had given him permission to touch her.

Nevertheless, he also told the detective that “he did not feel right about what was going on.”

{¶16} J.H. argues that his adjudication of delinquency is based on insufficient evidence

because there was no evidence (1) that any sexual contact occurred, or (2) that he either knew the

touching that occurred was offensive or was reckless in that regard. According to J.H., he “did

not touch [O.H.]’s genitals, he simply rubbed his hand across her thigh.”

{¶17} O.H. specifically testified on direct examination that J.H.’s hand touched the

outside of her vagina. Moreover, J.H. admitted to Detective Shatzer that he placed his hand

inside O.H.’s shorts and attempted to digitally penetrate her. Sexual contact includes the 7

touching of a person’s “thigh, genitals, * * * [or] pubic region, * * * for the purpose of sexually

arousing or gratifying either person.” R.C. 2907.01(B). At the very least, there was evidence

that J.H. touched O.H.’s pubic region. Accordingly, viewing the evidence in a light most

favorable to the State, a rational trier of fact could have found that the State set forth sufficient

evidence of sexual contact.

{¶18} The next question is whether the State set forth sufficient evidence that J.H. either

knew the sexual contact that occurred here was offensive or that he was reckless in that regard.

When conducting a sufficiency analysis, the question is strictly whether the State satisfied its

burden of production. See State v. Brooks, 9th Dist. Summit No. 23237,

(“[S]ufficiency tests the burden of production while manifest weight tests the burden of

persuasion.”). In answering that question, we are mindful that we must view all of the facts in a

light most favorable to the State. See Jenks,

at paragraph two of the syllabus.

{¶19} On the issue of sufficiency, this case presents a close call. Viewing the evidence

in favor of the State as we must, however, we cannot conclude that J.H.’s adjudication of

delinquency is based on insufficient evidence. That is because, even if J.H. did not know his

conduct was offensive to O.H., a rational trier of fact could have concluded from the evidence

that he acted recklessly in that regard. See R.C. 2907.06(A)(1).

{¶20} There was no evidence that O.H. and J.H. were ever romantically involved before

these events occurred. According to O.H.’s testimony on direct examination, the two only

shared a brief and mild form of physical contact before J.H. reached under her clothing and

touched her genitals. Specifically, they held hands for about 10 minutes before O.H. withdrew

her hand, placed her hands on her lap, and continued to watch the movie. According to O.H.,

J.H. then placed his hand inside her shorts and touched the outside of her vagina. She did not 8

invite him to do so, and one could not infer from her testimony that his conduct amounted to a

logical progression of the limited physical contact the two had shared up to that point.

Moreover, J.H. did not immediately withdraw his hand when O.H. asked him what he was doing.

Instead, he replied “you know what I’m doing,” and it was O.H. who drew away. A rational trier

of fact could have concluded that, by touching O.H. in the manner that he did after only briefly

holding hands with her, J.H. acted with heedless indifference and perversely disregarded a

known risk; to wit: that his conduct was likely to offend O.H. See Former R.C. 2901.22(C)

(recklessness defined). As further support for that conclusion, there was evidence that J.H.

immediately told O.H. not to tell anyone what had happened when she drew away from him.

There also was evidence that J.H. later told the police that he “did not feel right” about what had

happened. A rational trier of fact could have concluded that, had he truly believed his conduct

was not offensive, J.H. would not have told O.H. to remain silent about what had happened and

would not have experienced the feeling that it was not “right.” All of the foregoing facts, when

viewed in favor of the State, support the conclusion that the State satisfied its burden of

production. Accordingly, J.H.’s adjudication of delinquency is not based on insufficient

evidence.

Weight of the Evidence

{¶21} “[T]his Court applies the same * * * manifest weight standard[] of review in a

juvenile delinquency case that it applies in an adult criminal appeal due to the inherently criminal

aspects of delinquency proceedings * * *.” (Internal quotations and citations omitted.) In re

V.H.,

.

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way 9

and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten,

(9th Dist. 1986). This discretionary power should be

exercised only in exceptional cases where the evidence presented weighs heavily in favor of the

defendant and against conviction.

{¶22} This Court has already outlined the testimony that O.H. gave on direct

examination. On cross-examination, O.H. admitted that hand-holding is a romantic form of

touching and that, while she assumed she and J.H. were just friends, there was some question in

her mind regarding the status of their relationship. She also admitted that the statement she gave

to the police two weeks after this incident differed from the testimony she gave at trial. O.H. did

not tell the police that she and J.H. stopped holding hands for a period of time before he reached

over and touched her. Instead, she told the police that she and J.H. initially held hands on the

armrest between their chairs before moving their hands into her lap. She told the police that J.H.

then put his hand on her side and slipped it beneath her clothes. He then slid his hand across her

hip towards her front and reached into her shorts. She admitted that she described the event to

the police as one continuous course of conduct rather than J.H. reaching for her at some point

after she had broken their physical contact. She also admitted that she never specifically told the

police that J.H. touched her vagina. Further, she agreed that J.H. stopped touching her when she

said something to him. O.H. agreed that, prior to that point, she never told J.H. to stop, stood up,

yelled, or otherwise did anything to express her discomfort.

{¶23} J.H. did not testify on his own behalf, but several of his statements came in

through Detective Shatzer. As previously noted, the detective testified that J.H. admitted that he

tried to digitally penetrate O.H. According to J.H., however, O.H. gave him permission to do so.

Much like O.H., J.H. told Detective Shatzer that he and O.H. had held hands in her lap before he 10

touched her hip and then moved his hand beneath her shorts. He also told Detective Shatzer that

he asked O.H. several times whether she was okay with him touching her and that she continued

to say either “yes” or “I don’t care.” Detective Shatzer testified that J.H. eventually agreed that

the phrase “I don’t care” is not a “yes.” Even so, J.H. consistently maintained that O.H. gave

him permission to touch her. Moreover, while Detective Shatzer testified that J.H. said he “did

not feel right” about what had happened, he also testified that he could not recall J.H. ever

“actually [coming] out and [saying] * * * there was wrong doing.” Detective Shatzer confirmed

that his investigation led him to conclude that J.H. had touched O.H.’s pubic region rather than

her vagina.

{¶24} J.H. argues that his adjudication of delinquency is against the manifest weight of

the evidence because the record does not support the conclusion that he either knew O.H. would

find his actions offensive or that he was reckless in that regard. Under these particular facts and

circumstances, we must agree. Accordingly, we must conclude that the trial court lost its way in

adjudicating J.H. delinquent.

{¶25} Both O.H. and J.H. told Detective Shatzer that they held hands for a period of

time and, at some point, they moved their hands onto O.H.’s lap. They also both told the

detective that J.H. slid his hand under O.H.’s clothes, touched her side and hip, moved his hand

across her front and into her shorts, and tried to touch her genitals. Up until that point, there was

no evidence that O.H. expressed any discomfort to J.H. She did not stand up. She did not tell

him to stop. She did not push his hand away, and there was no testimony that she squirmed or

otherwise demonstrated any form of resistance. When O.H. finally said something to J.H. and

pulled away from him, he stopped touching her and did not bother her any further. Although

J.H. told O.H. not to say anything about the incident, there were several reasons why he might 11

have done so. Moreover, J.H.’s use of the phrase “my bad,” during his later phone conversation

with O.H. was not necessarily an admission of guilt. O.H. admitted that she became upset during

their phone call and that she apologized to J.H. before he said “my bad” in return. Accordingly,

his statement just as easily could have been meant to convey that he was sorry for upsetting her,

not that he was admitting to any actual wrongdoing. Because the recording of the conversation

was not introduced, one can only speculate as to what J.H. meant by his statement.

{¶26} Having carefully reviewed the record, we cannot conclude from the evidence

presented that J.H. either knew his actions were offending O.H. or that he was reckless in that

regard. See R.C. 2907.06(A)(1). The evidence supports the conclusion that two teenagers who

had known each other for a number of years were experimenting with one another physically

when one of them became uncomfortable and notified the other. Up until that point, O.H. gave

no outward indication that J.H.’s touch had offended her. In fact, she acquiesced in their

physical contact by holding his hand and taking it into her lap. When she finally pulled away

from J.H. and made it clear that she was uncomfortable, J.H. stopped touching her. Were this

Court to agree that J.H. should be adjudicated delinquent based on this record, the line between

acceptable and criminal behavior would be blurred to an unprecedented degree. An individual

wishing to initiate physical contact with another would be left to guess whether a person who

was initially receptive to his or her advances might later decide that they were, in fact, offended

by what occurred. To avoid possible prosecution, individuals would have to seek verbal

permission from others for every different type of physical contact prior to initiating that contact.

While it might be wise for individuals, particularly young ones, to err on the side of caution

when initiating physical contact with another individual, we cannot conclude that such a

requirement is a reasonable one. 12

{¶27} This Court certainly sympathizes with any emotional trauma O.H. experienced as

a result of this incident. It may well be that J.H.’s behavior upset O.H. and that there was a

turning point where she decided that she was no longer comfortable engaging in physical contact

with him. For J.H. to either know that he offended her or to have been reckless in that regard,

however, O.H. had to somehow communicate her discomfort to him. On balance, the record

does not support the lower court’s conclusion that J.H. either knew his actions were offensive to

O.H. or that he was reckless in that regard. Compare Hawley,

, at *3 (sexual

imposition conviction affirmed where girl physically and verbally tried to put a stop to

defendant’s advances and he later stated that “maybe he shouldn’t have done it”). Accordingly,

we must conclude that this is the exceptional case where the evidence weighs heavily against the

adjudication of delinquency. See Otten,

. Because J.H.’s adjudication of

delinquency is against the manifest weight of the evidence, his first assignment of error is

sustained on that basis.

ASSIGNMENT OF ERROR II

THE STATE OFFERED NO EVIDENCE OF CORROBORATION AS REQUIRED BY ORC §2907.06(B).

{¶28} In his second assignment of error, J.H. argues that this Court should overturn his

adjudication of delinquency because the State failed to tender any evidence to corroborate O.H.’s

testimony. We disagree.

{¶29} The sexual imposition statute provides that no person shall be convicted of sexual

imposition “solely upon the victim’s testimony unsupported by other evidence.” R.C.

2907.06(B). “The corroborating evidence necessary to satisfy [the statute] need not be

independently sufficient to convict the accused, and it need not go to every essential element of

the crime charged. Slight circumstances or evidence which tends to support the victim’s 13

testimony is satisfactory.” State v. Economo,

(1996), syllabus. For example,

“[a] defendant’s own statements can * * * serve as corroborative evidence.” State v. Roy, 9th

Dist. Lorain No. 13CA010404,

, citing State v. Golden, 5th Dist. Stark No.

2008CA00182,

.

{¶30} Although we have already determined that J.H.’s adjudication of delinquency is

against the manifest weight of the evidence, that determination does not render the foregoing

assignment of error moot. That is because “[c]orroboration is not an element of the offense, but

is merely an ancillary evidentiary requirement.” Akron v. Myers, 9th Dist. Summit No. 20743,

, *2 (Mar. 13, 2002). A trial court, therefore, must determine the corroboration

requirement before any verdict can be rendered. See

(“The corroboration

requirement of R.C. 2907.06(B) is a threshold inquiry of legal sufficiency to be determined by

the trial judge, not a question of proof, which is the province of the factfinder.”).

{¶31} J.H. argues that the State failed to satisfy the corroboration requirement because it

“produced no evidence to support the testimony of [O.H.]” He notes that O.H. waited

approximately two weeks to report this incident and only did so because her friend insisted that

she tell her mother. He argues that the State never sought the testimony of O.H.’s friends, her

mother, or any other members of her youth group so that they might be able to testify about her

emotional state near the event. Accordingly, he avers that “[n]othing was offered to give any

indication that something took place or to evidence [O.H.’s] state of mind near the event.”

{¶32} J.H. never disputed that the foregoing incident occurred. He freely admitted to

Detective Shatzer that he held hands with O.H., touched her hip and side, and reached into her

shorts in an attempt to digitally penetrate her. The only material difference between his

statement to the detective and O.H.’s statement to the detective was that he described their 14

encounter as being consensual. Accordingly, J.H.’s own statement, as introduced through the

testimony of Detective Shatzer, corroborated O.H.’s statement to a large degree. See Roy, 2014-

Ohio-5186, at ¶ 50, citing Golden,

. J.H. has not cited any legal

authority standing for the proposition that the State was required to provide additional evidence

to corroborate O.H.’s testimony in this matter. See App.R. 16(A)(7). Absent any further

argument and authority from J.H., we cannot conclude that the State failed to satisfy R.C.

2907.06(B)’s corroboration requirement. See

(“Slight circumstances or evidence

which tends to support the victim’s testimony is satisfactory [evidence of corroboration].”). As

such, J.H.’s second assignment of error is overruled.

III.

{¶33} J.H.’s second assignment of error is overruled. His first assignment of error is

overruled in part and sustained in part. The judgment of the Summit County Court of Common

Pleas, Juvenile Division, is affirmed in part, reversed in part, and remanded for further

proceedings consistent with the foregoing opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 15

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

DONNA J. CARR FOR THE COURT

HENSAL, P. J. WHITMORE, J. CONCUR.

APPEARANCES:

ANGELA M. KILLE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RACHEL M. RICHARDSON, Assistant Prosecuting Attorney, for Appellee.