[Cite as In re C.D.B, 2012-Ohio-4911.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     JACKSON COUNTY

                                              :
IN RE:                                        :           Case No: 12CA8
                                              :
C.D.B. & T.E.B.,                              :
                                              :
Adjudicated abused, neglected                 :           DECISION AND
& dependent children.                         :           JUDGMENT ENTRY
                                              :
                                                          Filed: October 17, 2012


                                         APPEARANCES:

Sher Black, Jackson, Ohio, for Appellant Mother.

Dana E. Gilliland, Wellston, Ohio, for Appellee Father.

Joshua D. Price, Jackson, Ohio, for C.D.B.

Timothy E. Forshey, Jackson, Ohio, for Jackson County Job and Family Services.

Trecia Kimes-Brown, McArthur, Ohio, Guardian Ad Litem.


Kline, J.:

         {¶1}   Mother appeals the judgment of the Jackson County Court of Common

Pleas, Juvenile Division. The juvenile court found that C.D.B. (hereinafter “Son”) and

T.E.B. (hereinafter “Daughter”) are abused children under R.C. 2151.031. (We will refer

to Son and Daughter collectively as the “Children.”) On appeal, Mother claims that the

finding of abuse is against the manifest weight of the evidence. We disagree. After

reviewing the record, we find competent, credible evidence (1) that Son and Daughter

were the victims of sexual activity and (2) that the sexual activity in question would

constitute the offense of gross sexual imposition. As a result, the juvenile court did not
Jackson App. No. 12CA8                                                           2


err in finding that the Children are abused under R.C. 2151.031(A), and we affirm the

juvenile court’s judgment.

                                            I.

       {¶2}   Son is ten-years old, and daughter is five-years old. After Mother and

Father were divorced, Mother married Stepfather.

       {¶3}   While at Father’s home, Son licked Daughter’s genital area. Daughter told

Father about this incident, causing Father to confront Son. This confrontation prompted

Son to tell Father about several incidents that had occurred at Mother’s home.

       {¶4}   Son revealed that Mother had initiated several encounters related to

sexuality. Specifically, Son claimed that Mother had (1) discussed with Son whether

Son might be gay, (2) made Son look at erotic pictures on the internet, and (3) pulled

down Son’s pants to inspect his pubic hair. Son also claimed that Mother had forced

him to touch Daughter’s chest and pubic region.

       {¶5}   Before the incident at Father’s home, Son and Stepfather were involved in

a disturbing incident. Apparently, Stepfather and two young girls participated in binding

Son with duct tape. During this incident, Stepfather retrieved a bra, and one of the

participants placed the bra on Son. Stepfather then took pictures that show Son being

bound in duct tape while wearing the bra. These pictures were eventually posted on

facebook.

       {¶6}   Jackson County Job and Family Services (hereinafter “Family Services”)

investigated the incidents involving Son, Daughter, Mother, and Stepfather. And on

March 23, 2012, Family Services filed a complaint alleging that the Children are abused,

neglected, and dependent.
Jackson App. No. 12CA8                                                               3


       {¶7}   The juvenile court held hearings on May 10, 2012, and May 31, 2012.

Son testified at length during both hearings. Several other witnesses also testified,

including Stepfather, a Family Services investigator, and a Ross County Sheriff’s

detective.

       {¶8}   On June 15, 2012, the juvenile court found the following:

              Based upon the evidence presented, the Court finds as

              follows:

              1. [Son] and [Daughter] are sexually abused children as

              defined in O. R. C. 2151.031(a) & (b) [sic].

              2. That [Son] was sexually abused by [Mother] and

              [Stepfather].

              3. That [Daughter] was sexually abused by [Son] and

              [Mother]. June 15, 2012 Order.

In its findings of fact, the juvenile court found that Son “was the victim of sexual abuse

as represented in State’s Exhibits 3 and 4, those exhibits being photographs of [Son]

restrained with duct tape and a lady’s bra placed on the outside of his clothing.” June

15, 2012 Findings of Fact at 2. The juvenile court also found the following: “[T]he

mother supervised an incident that took place at her home in which she directed [Son]

to touch his sister under her shirt and to brush her pubic area with his hand. As a result,

both children are victims of sexual abuse at the hands of their mother.” Id. at 3.

       {¶9}   On July 13, 2012, the juvenile court granted temporary custody of Son and

Daughter to Father.
Jackson App. No. 12CA8                                                             4


       {¶10} Mother appeals and asserts the following assignments of error: I. “THE

TRIAL COURT ERRED IN FINDING THAT DUCT TAPING INCIDENTS INVOLVING C.

D. B. CONSTITUTED SEXUAL ABUSE AS DEFINED IN O.R.C. 2151.031(A) & (B) AS

SUCH FINDING WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE

THAT A CRIMINAL OFFENSE HAD OCCURRED AND WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.” And II. “THE TRIAL COURT ERRED IN

FINDING THAT C.D.B. AND T.E.B. HAD BEEN SEXUALLY ABUSED BY THEIR

MOTHER AS SUCH FINDING WAS NOT SUPPORTED BY CLEAR AND

CONVINCING EVIDENCE THAT A CRIMINAL OFFENSE HAD OCCURRED AND

WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

                                            II.

       {¶11} We will address Mother’s second assignment of error out of order. In her

second assignment of error, Mother contends that the juvenile court’s finding of abuse

under R.C. 2151.031(A) is against the manifest weight of the evidence.

       {¶12} In a recent opinion, our colleagues in the Sixth Appellate District

discussed the appropriate standard of review for this type of case. See In re A.C., 6th

Dist. No. L-10-1025, 2010-Ohio-4933, ¶ 40.

              That a child is an abused, neglected, or dependent minor

              must be established by clear and convincing evidence. R.C.

              2151.35(A). Clear and convincing evidence is that measure

              or degree of proof which is more than a mere preponderance

              of the evidence, but does not reach the extent of the

              certainty required to establish “beyond a reasonable doubt”
Jackson App. No. 12CA8                                                            5


              in criminal cases. It is that quantum of evidence which will

              produce in the mind of the trier of fact a firm belief or

              conviction as to the facts sought to be established. In re

              G.S., 10th Dist. No. 05AP-1321, 2006-Ohio-2530, ¶ 4,

              quoting Cross v. Ledford (1954), 161 Ohio St. 469[, 477, 120

              N.E.2d 118]. When reviewing a trial court’s decision on the

              manifest weight of the evidence, appellate courts are guided

              by the presumption that the findings of the trial court [are]

              correct. In re Williams, 10th Dist. No. 01AP-867, 2002-Ohio-

              2902, ¶ 9. The weight to be given the evidence and the

              credibility of the witnesses are primarily for the trier of fact.

              State v. DeHass (1967), 10 Ohio St.2d 230[, 227 N.E.2d

              212], paragraph one of the syllabus. The rationale for this

              presumption is that the trial court is in the best position to

              evaluate the evidence by viewing witnesses and observing

              their demeanor, voice inflections, and gestures. Seasons

              Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80[, 461

              N.E.2d 1273]. Thus, “[j]udgments supported by some

              competent, credible evidence going to all the essential

              elements of the case will not be reversed by a reviewing

              court as being against the manifest weight of the evidence.”

              C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio

              St.2d 279[, 376 N.E.2d 578], paragraph one of the syllabus.
Jackson App. No. 12CA8                                                                6


In re A.C., 2010-Ohio-4933, at ¶ 40

       {¶13} Under R.C. 2151.031(A),

              [A]n “abused child” includes any child who * * * [i]s the victim

              of “sexual activity” as defined under Chapter 2907. of the

              Revised Code, where such activity would constitute an

              offense under that chapter, except that the court need not

              find that any person has been convicted of the offense in

              order to find that the child is an abused child[.]

“‘Sexual activity’ means sexual conduct or sexual contact, or both.” R.C. 2907.01(C).

And “‘[s]exual 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).

       {¶14} We believe that competent, credible evidence supports the juvenile court’s

finding that the Children were the victims of sexual activity. Furthermore, the sexual

activity in question would constitute the offense of gross sexual imposition. R.C.

2907.05(A)(4) provides that

              [n]o 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; or cause

              two or more other persons to have sexual contact when * * *

              [t]he other person, or one of the other persons, is less than
Jackson App. No. 12CA8                                                        7


              thirteen years of age, whether or not the offender knows the

              age of that person.

       {¶15} Here, there is competent, credible evidence that Mother caused Son to

have sexual contact with Daughter. Son testified to the following:

              [SON]: Yeah. I was on the computer playing a game and

              mom said, let’s go into your room, so I said ok. And we was

              walking down the hall and she got Sis, my sister out of her

              room…

              ATTORNEY FORSHEY: That would be [Daughter].

              [SON]: Yeah, she said come here [Daughter]. And she said

              ok and we went to my room. And I have a bunk bed and me

              and mom set down [sic] on the bottom bunk so mom

              grabbed my hand and I was trying to get free with my free

              hand until my fingers were starting to turn red so I gave up.

              Mom was…mom made me touch Sis near her belly button

              area under her shirt…

              ATTORNEY FORSHEY: Now where was your sister at that

              point?

              [SON]: She was standing up right in front of me.

              ATTORNEY FORSHEY: So if I understand you right, you

              were on the bunk bed, you were sitting on the bunk bed?

              Where was your mother?

              [SON]: She was sitting beside me.
Jackson App. No. 12CA8                                                      8


              ATTORNEY FORSHEY: Ok, and your sister is like standing

              in front of you?

              [SON]: Yeah.

              ATTORNEY FORSHEY: Ok, what happened after that?

              [SON]: She took my hand…[Daughter] said that tickles and

              so she was pushing my hand up towards [Daughter’s] chest

              area. I tried to get free with my other hand again until my

              fingers started to turn red and it was over her shirt. She

              made me touch up near [Daughter’s] chest area over her

              shirt.

              ATTORNEY FORSHEY: That’s over her shirt, not under her

              shirt?

              [SON]: Yeah.

              ATTORNEY FORSHEY: Anything else happen?

              [SON]: She told [Daughter] to lay down and [Daughter] laid

              down.

              ATTORNEY FORSHEY: And how was [Daughter] laying

              down? Was she on her stomach or on her back?

              [SON]: She was just laying down on her back.

              ATTORNEY FORSHEY: Ok…

              [SON]: And when she laid down on her back,

              [Daughter]…mom pulled down her pants and she took my

              hand and made me skim over her lower private area and
Jackson App. No. 12CA8                                                              9


              [Daughter] had her hands over her eyes and she wasn’t

              watching and she done…she made me skim over

              [Daughter’s] private area and she told us not to tell anybody

              or she was going to get one of [Stepfather’s] tools to hurt us

              with and she told us she was going to have somebody to

              watch us. May 10, 2012 Transcript at 20-23.

       {¶16} Thus, according to Son’s testimony, Mother caused Son to touch

Daughter’s erogenous zones. This testimony is competent, credible evidence that the

touching occurred. See In re A.W., Za.W., H.W., 4th Dist. No. 04CA27, 2004-Ohio-

5351, ¶ 22. Mother argues, however, “there was no evidence that the mother’s intent

was to sexually arouse or gratify either person.” (Internal quotation omitted because no

citation is referenced.) Appellant’s Brief at 13. We disagree. “There is no requirement

* * * that there be direct testimony regarding sexual arousal or gratification.” State v.

Edwards, 8th Dist. No. 81351, 2003-Ohio-998, ¶ 22. And here, the evidence permits a

reasonable inference that the touching was sexually motivated. See id. at ¶ 22-24; In re

S.S., 4th Dist. No. 10CA682, 2011-Ohio-4081, ¶ 23-25; In re J.F., 8th Dist. No. 96875,

2012-Ohio-2191, ¶ 26-29. First, touching another person’s pubic region is strong

evidence of a sexual purpose. See In re S.S., 2011-Ohio-4081, at ¶ 25, citing In re

Whitlock, 11th Dist. No. 2008-A-0018, 2008-Ohio-4672, ¶ 23. Moreover, the touching

occurred after several other incidents related to sexuality. Son testified that Mother

spoke to him about same-sex relationships, telling Son that it is “ok to like guys[.]” May

10, 2012 Transcript at 14. Son also testified that Mother showed him erotic pictures on
Jackson App. No. 12CA8                                                            10


the internet. Finally, Son testified that mother had pulled down his pants to inspect his

pubic hair. Son described what happened during this incident.

              [SON]: * * * And so she pulled down my pants and she seen

              the hair and she took her finger and was rubbing across it.

              ATTORNEY FORSHEY: Can you show me like on the arm

              of the…this thing here what you mean by she rubbed across

              it?

              [SON]: Just gently.

              ATTORNEY FORSHEY: And did she say anything or do

              anything when she did that?

              [SON]: No.

              ATTORNEY FORSHEY: Did anything happen to you when

              she did that?

              [SON]: Yeah.

              ATTORNEY FORSHEY: What happened to you?

              [SON]: My private area got, um, got a little hard.

              ATTORNEY FORSHEY: And did she say anything about

              that?

              [SON]: No.

              ATTORNEY FORSHEY: Did she see that?

              [SON]: Yeah. May 10, 2012 Transcript at 18-19.

       {¶17} Because Son’s touching of Daughter occurred as part of a pattern of

incidents related to sexuality, the juvenile court could have reasonably inferred that
Jackson App. No. 12CA8                                                             11


Mother caused Son to touch Daughter for the purpose of sexual gratification.

Accordingly, we find competent, credible evidence (1) that the Children were the victims

of sexual activity and (2) that the sexual activity in question would constitute the offense

of gross sexual imposition. Therefore, the juvenile court did not err in finding that R.C.

2151.031(A) applies to the present case.

       {¶18} In conclusion, we affirm the juvenile court’s finding that the Children “are

victims of sexual abuse at the hands of their mother,” and we overrule Mother’s second

assignment of error.

                                             III.

       {¶19} Based on our resolution of Mother’s second assignment of error, we find

that Mother’s first assignment of error is moot. See App.R. 12(A)(1)(c). We have

affirmed the juvenile court’s finding that the Children were sexually abused by Mother.

Therefore, even if we were to sustain Mother’s first assignment of error, we would still

be affirming the juvenile court’s finding of abuse under R.C. 2151.031(A). Accordingly,

we need not address Mother’s first assignment of error.

       {¶20} Having overruled Mother’s relevant assignment of error, we affirm the

juvenile court’s judgment.

                                                                 JUDGMENT AFFIRMED.
Jackson App. No. 12CA8                                                           12


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.

       The Court finds that there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Jackson
County Common Pleas Court, Juvenile Division, to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.

Harsha, J. and McFarland, J.: Concur in Judgment & Opinion.


                                  For the Court


                                  BY:_____________________________
                                     Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
