[Cite as In re H.M., 2018-Ohio-2201.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
IN RE: H.M., A MINOR CHILD                    :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. Patricia A. Delaney, J.
                                              :       Hon. Earle E. Wise, J.
                                              :
                                              :
                                              :       Case No. 17-CA-81
                                              :
                                              :
                                              :       OPINION




CHARACTER OF PROCEEDING:                          Civil appeal from the Licking County Court
                                                  of Common Pleas, Juvenile Division, Case
                                                  No. A2017-0291

JUDGMENT:                                         Affirmed in part; reversed in part and
                                                  remanded


DATE OF JUDGMENT ENTRY:                           June 5, 2018

APPEARANCES:

For - Appellee                                    For - H.M.

MANDY DELEEUW                                     CHARLYN BOHLAND
Assistant Prosecuting Attorney                    Assistant Public Defender
20 Second St., 4th Floor                          250 East Broad Street, Ste. 1400
Newark, OH 43055                                  Columbus, OH 43215

For - State of Ohio                               Guardian Ad Litem
BILL HAYES                                        CAROLYN E. FITTRO
Licking County Prosecutor                         1335 Dublin Road, Ste. 104D
20 South Second Street                            Columbus, OH 43215
Newark, OH 43055
[Cite as In re H.M., 2018-Ohio-2201.]


Gwin, P.J.

        {¶1}    Defendant-appellant H.M., a juvenile, appeals the judgment of the Licking

County Court of Common Pleas, Juvenile Division, adjudicating him a delinquent child for

committing the offenses of two counts of rape, and one count of Gross Sexual Imposition.

                                        Facts and Procedural History

        {¶2}    18-year-old C.P. testified that she does not get along with her 17-year-old

brother, H.M. C.P. also explained that she and H.M. had engaged in sexual conduct

when they were younger. C.P. testified about two incidents that took place at their home.

C.P. testified that in September 2016 H.P. forced his way into her bedroom,

                So, I got up to close the door, and, of course, him being stronger than

        me, that wasn’t happening so we struggled with the door for a minute.

                                                ***

                He had his like - - foot in like blocking it and he’s like laughing

        because he knows he’s stronger and I’m not going to be able to close it.

T., Sept. 22, 2017 at 24.

        {¶3}     H.M. proceeded into C.P.'s room and asks her if she “wanted to do it.” T.,

Sept. 22, 2017 at 25. C.P. said “no, that we can’t do that anymore.” H.M. proceeded to

grab her arm, and took her to his room. C.P. demonstrated for the court how H.M.

grabbed her arm. T., Sept. 22, 2017 at 25. At H.M.'s insistence, C.P. put her mouth on

H.M's penis and tried to give him a blowjob "for maybe like three seconds," but stopped

because she felt like she was going to puke on him. Then, H.M. put C.P.'s hands on his

penis; and C.P. tried to give him a hand job for about three more seconds, but could not
Licking County, Case No. 17-CA-81                                                         3


do it. C.P. left H.M.'s room, and ran back to her room and locked the door. C.P. did not

tell their mother, B.M., what had happened.

       {¶4}    In December or January 2016, C.P. testified that H.M. came into C.P.'s

room, grabbed her arm, walked her all the way to his bed and told her to lie down. H.M.

then told C.P. to pull down her pants. C.P. testified,

              I didn’t - - didn’t really see a reason to fight because again, stronger,

       not going to win. At this point in time he had evolved the threats into killing

       me so I wasn’t even going to say a word back to him about anything.

T., Sept. 22, 2017 at 32.

       {¶5}    H.M. put his mouth on C.P.'s vagina and stopped when C.P. told him to

stop. C.P. testified,

              Yeah. I told him, I said, “Stop” because there was like panic in my

       voice and he heard that.

                                            ***

              I pulled up my pants, literally leaped off the bed and ran into my room

       slammed the door and locked it.

                                            ***

              Me leaping kind of looked like flying because I didn’t see the floor.

T., Sept. 22, 2017 at 33-34.

       {¶6}    C.P. testified that H.M. is stronger than she is. C.P. further testified that

H.M. had threatened to kill or harm her in the past.

       {¶7}   Detective Steven Vanoy of the Newark Police Department interviewed both

C.P. and H.M. about the incidents. Detective Vanoy explained that H.M initially denied
Licking County, Case No. 17-CA-81                                                      4


the allegations. When Detective Vanoy asked H.M. how his D.N.A. got on C.P. H.M.

admitted that one night when he was very drunk, he wet his hand with saliva and put his

hand on C.P.'s vagina.

      {¶8}   Prior to trial, H.M. and his attorney agreed to undertake a polygraph

assessment. At trial, Cindy Erwin, a polygraph examiner at BCI & I testified about the

process for administering the polygraph test.        Ms. Erwin reviewed background

information, formulated questions that were reviewed by the prosecutor and defense

counsel, and met with H.M. prior to the test. Ms. Erwin explained that polygraph results

are 75% to 92% accurate. After consultation with counsel, Ms. Erwin asked H.M. the

following questions:

             1). After you got home from DYS the last time, did you ever threaten

      to hurt [CP.] if she did not put her mouth on your bare penis?

             2). After you got home from DYS the last time, did you ever force

      [C.P.] to masturbate you?

             3). Did you ever force [C.P.] to let you put your mouth on her bare

      vagina?

T., Sept. 22, 2017 at 174. The test was administered three times, each showing that

H.M. was deceptive. T., Sept. 22, 2017 at 182. Ms. Erwin also confirmed that she

misspoke during the test and used the wrong name when asking H.M. the questions.

However, Ms. Erwin stated that the results were not impacted by her mistake.

      {¶9}   H.M. admitted that he had threatened to kill C.P. in the past. T. Sept. 22,

2017 at 242-243. He further admitted to making threats to harm C.P. “multiple times.” T.,
Licking County, Case No. 17-CA-81                                                     5


Sept. 22, 2017 at 243. H.M. admitted that he had physically assaulted C.P. in January

2017. T. Sept. 22, 2017 at 243.

       {¶10} At the end of the hearing, the judge remarked:

              Now, if I were to decide this case solely upon the testimony of your

       sister and nothing more, quite frankly I would find that the State failed to

       prove beyond a reasonable doubt your guilt. If I considered only your

       sister's testimony. But, there is more. What is that more? That more is the

       results of the polygraph examination. And that more is also, frankly, your

       testimony.

T. Sept. 22, 2017 at 271.

       {¶11} H.M. was adjudicated delinquent by the juvenile court on all three counts.

The court order H.M. committed to the Department of Youth Services for a minimum of

two years, maximum to his 21st birthday. At the disposition hearing, the juvenile court

classified H.M. as a tier III juvenile offender registrant.

                                        Assignments of Error

       {¶12} H.M. raises five assignments of error:

       {¶13} “I. THE JUVENILE COURT ERRED WHEN IT CLASSIFIED H.M. AS A

JUVENILE OFFENDER REGISTRANT BECAUSE IT DID NOT MAKE THAT

DETERMINATION UPON HIS RELEASE FROM THE SECURE FACILITY, IN

VIOLATION OF R.C. 2152.83(A)(1).

       {¶14} “II. THE JUVENILE COURT ABUSED ITS DISCRETION WHEN IT FAILED

TO USE ITS DISCRETION AND CLASSIFIED H.M. AS A TIER III JUVENILE
Licking County, Case No. 17-CA-81                                                              6


OFFENDER REGISTRANT WITHOUT HOLDING A HEARING TO DETERMINE TIER

LEVEL, IN VIOLATION OF R.C. 2152.83(A) AND R.C. 2152.831.

       {¶15} “III. THE JUVENILE COURT ABUSED ITS DISCRETION WHEN IT

DENIED DEFENSE COUNSEL'S REQUEST FOR A CONTINUANCE, AND JUVENILE

SEX OFFENDER AND PSYCHOLOGICAL EVALUATIONS, IN VIOLATION OF JUV.R.

1, JUV.R. 23, JUV.R. 29(F), AND R.C. 2152.831.

       {¶16} “IV. THE JUVENILE COURT VIOLATED H.M.'S RIGHT TO DUE

PROCESS WHEN IT ADJUDICATED HIM DELINQUENT OF RAPE AND GSI, WHEN

THAT DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN

VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S.

CONSTITUTION; AND ARTICLE I, SECTION 16, OHIO CONSTITUTION.

       {¶17} “V. H.M. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, IN

VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S.

CONSTITUTION; AND ARTICLE I, SECTION 10, OHIO CONSTITUTION.”

                                              I. II. & III.

       {¶18} During disposition in this case, the juvenile court committed 17-year-old

H.M. to DYS for a minimum period of 2 years, maximum to his 21st birthday. Further, the

juvenile court classified H.M. as a tier III juvenile offender registrant with a duty to register

every 90 days for life.

       {¶19} In his first three assignments of error, H.M. contends that the juvenile

offender registrant determination should be made upon release from the secure facility;

that a hearing should be held to determine H.M.’s tier level; and that a psychological

evaluation of the H.M. should be performed.
Licking County, Case No. 17-CA-81                                                             7


       STANDARD OF APPELLATE REVIEW

       {¶20} “‘When a court’s judgment is based on an erroneous interpretation of the

law, an abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville

Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6;

Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL

2572598, ¶ 50.’ Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496,

909 N.E.2d 1237, ¶ 13.” State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d

440, ¶6. Because the assignment of error involves the interpretation of a statute, which

is a question of law, we review the trial court’s decision de novo. Med. Mut. of Ohio v.

Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13; Accord, State

v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9; Hurt v. Liberty

Township, Delaware County, OH, 5th Dist. Delaware No. 17 CAI 05 0031, 2017-Ohio-

7820, ¶ 31.

       ISSUE FOR APPEAL.

       Whether the juvenile court erred in classifying H.M. as a tier III juvenile offender

registrant with a duty to register every 90 days for life at the dispositional hearing after the

juvenile court committed H.M to a secured facility.

       {¶21} The age of a delinquent child at the time he or she committed the offenses

determines whether and how the child may be classified as a sex offender. In re. D.S.,

146 Ohio St.3d 182, 2016–Ohio–1027. R.C. 2152.82 thru 2152.86, as well as R.C.

Chapter 2950, set forth Ohio’s structure for juvenile-sex-offender classification and

registration. Specifically, R.C. 2152.191 identifies which juvenile offenders are subject to

classification and registration requirements. The statute essentially provides that children
Licking County, Case No. 17-CA-81                                                          8


14 years or older are subject to classification so long as the offense occurred on or after

January 1, 2002.

       {¶22} Whether such classification is mandatory or discretionary is determined by

the child’s age at the time he or she committed the offense. According to R.C. 2152.83(B),

classification is discretionary for juvenile offenders who are 14 or 15 years old at the time

of the offense and who are not otherwise subject to repeat-offender classification or

serious-youthful-offender classification. In re I.A., 140 Ohio St. 3d 203, 2014–Ohio–3155.

       {¶23} Pursuant to R.C. 2152.83(A), classification is mandatory when the child

offender is 16 or 17 years old at the time of his or her offense,

              (1) The court that adjudicates a child a delinquent child shall issue

       as part of the dispositional order or, if the court commits the child for the

       delinquent act to the custody of a secure facility, shall issue at the time of

       the child’s release from the secure facility, an order that classifies the child

       a juvenile offender registrant and specifies that the child has a duty to

       comply with sections 2950.04, 2950.041, 2950.05, and 2950.06 of the

       Revised Code if all of the following apply:

              (a) The act for which the child is or was adjudicated a delinquent child

       is a sexually oriented offense or a child-victim oriented offense that the child

       committed on or after January 1, 2002.

              (b) The child was sixteen or seventeen years of age at the time of

       committing the offense.

              (c) The court was not required to classify the child a juvenile offender

       registrant under section 2152.82 of the Revised Code or as both a juvenile
Licking County, Case No. 17-CA-81                                                           9


       offender registrant and a public registry-qualified juvenile offender registrant

       under section 2152.86 of the Revised Code.

              (2) Prior to issuing the order required by division (A)(2) of this section,

       the judge shall conduct a hearing under section 2152.831 of the Revised

       Code, except as otherwise provided in that section, to determine whether

       the child is a tier I sex offender/child-victim offender, a tier II sex

       offender/child-victim offender, or a tier III sex offender/child-victim offender.

       When a judge issues an order under division (A)(1) of this section, the judge

       shall include in the order the determinations identified in division (B)(5) of

       section 2152.82 of the Revised Code.

       {¶24} In the case at bar, H.M. was 17 years old at the time of the offense. The

juvenile court committed him to the custody of the Department of Youth Services in a

secure facility. Accordingly, the juvenile court’s only option was to classify him “at the

time of the child’s release from the secure facility” and not at the time of disposition.

       {¶25} The state agrees that the trial court erred in classifying H.M. at the time of

disposition in the case at bar.

       {¶26} H.M.’s First, Second and Third Assignments of Error are sustained. H.M.’s

classification as a tier II juvenile offender is vacated.

                                                  IV.

       {¶27} In his Fourth Assignment of Error, H.M. challenges the manifest weight of

the evidence that was presented at trial and which resulted in the juvenile court’s

adjudication finding him to be a delinquent child.
Licking County, Case No. 17-CA-81                                                        10


       STANDARD OF APPELLATE REVIEW.

       A. Sufficiency of the Evidence.

       {¶28} The Sixth Amendment provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570

U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,

621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a

question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,

2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements

of the charged offense and a review of the state's evidence.” State v. Richardson, 150

Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.

       {¶29} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus; Walker, at ¶30. “The relevant inquiry

is whether, after viewing the evidence in the 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.” Jenks at paragraph two of the syllabus. State v. Poutney, Oh. Sup.

Ct. No. 2016-1255, 2018-Ohio-22, 2018 WL 328882 (Jan. 4, 2018), ¶19. Thus, “on review

for evidentiary sufficiency we do not second-guess the jury's credibility determinations;

rather, we ask whether, ‘if believed, [the evidence] would convince the average mind of

the defendant's guilt beyond a reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516,

543, 747 N.E.2d 765 (2001), quoting Jenks at paragraph two of the syllabus (emphasis
Licking County, Case No. 17-CA-81                                                      11

added); Walker at ¶31. We will not “disturb a verdict on appeal on sufficiency grounds

unless ‘reasonable minds could not reach the conclusion reached by the trier-of-fact.’”

State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State

v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148

Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.

      ISSUE FOR APPEAL

      Whether, after viewing the evidence in the light most favorable to the prosecution,

the evidence, “if believed, would convince the average mind of the defendant's guilt on

each element of the crimes beyond a reasonable doubt.”

      1. H.M. was adjudicated delinquent of two counts of Rape, violations of R.C.

2907.02(A)(2).

      {¶30} R.C. 2907.02 provides,

             (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.

                                           ***

             (C) A victim need not prove physical resistance to the offender in

      prosecutions under this section.

      {¶31} “Sexual conduct” is defined to include “vaginal intercourse between a male

and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex;

and, without privilege to do so, the insertion, however slight, of any part of the body or

any instrument, apparatus, or other object into the vaginal or anal cavity of another.
Licking County, Case No. 17-CA-81                                                         12


Penetration, however slight, is sufficient to complete vaginal or anal intercourse.” R.C.

2907.01(A).

       {¶32} R.C. 2901.01(A)(1) defines “force,”

              “Force” means any violence, compulsion, or constraint physically

       exerted by any means upon or against a person or thing.

       {¶33} In the case at bar, C.P. testified that in September 2016, H.M. forced his

way into her bedroom. H.M. grabs her arm, and took her to his room. C.P. demonstrated

for the court how H.M. grabbed her arm. T., Sept. 22, 2017 at 25. At H.M.'s insistence,

C.P. put her mouth on H.M's penis and tried to give him a blowjob "for maybe like three

seconds," but stopped because she felt like she was going to puke on him.

       {¶34} In December or January 2016, C.P. testified that H.M. came into C.P.'s

room, grabbed her arm, walked her all the way to his bed and told her to lie down. H.M.

then told C.P. to pull down her pants. C.P. testified,

              I didn’t - - didn’t really see a reason to fight because again, stronger,

       not going to win. At this point in time he had evolved the threats into killing

       me so I wasn’t even going to say a word back to him about anything.

T., Sept. 22, 2017 at 32.

       {¶35} H.M. put his mouth on C.P.'s vagina. H.M. admitted that he had threatened

to kill C.P. in the past. T., Sept. 22, 2017 at 242-243. He further admitted to making

threats to harm C.P. “multiple times.” T., Sept. 22, 2017 at 243. The results of the

polygraph tests that H.M. agreed to take indicate that he was being deceptive about the

events that C.P. testified had occurred.
Licking County, Case No. 17-CA-81                                                        13

       {¶36} “Corroboration of victim testimony in rape cases is not required. See State

v. Sklenar, 71 Ohio App.3d 444, 447, 594 N.E.2d 88; State v. Banks (1991), 71 Ohio

App.3d 214, 220, 593 N.E.2d 346; State v. Lewis (1990), 70 Ohio App.3d 624, 638, 591

N.E.2d 854; State v. Gingell (1982), 7 Ohio App.3d 364, 365, 7 OBR 464, 455 N.E.2d

1066.” State v. Johnson, 112 Ohio St .3d 210, 217, 2006-Ohio-6404 at ¶ 53, 858 N.E.2d

1144, 1158.

       {¶37} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

H.M. had committed the crime of Rape by the use or threat of force on two occasions.

We hold, therefore, that the state met its burden of production regarding each element of

the crime of Rape by the use or threat of force and, accordingly, there was sufficient

evidence to support each of H.M’s adjudications.

       2. H.M. was adjudicated delinquent of Gross Sexual Imposition.

       {¶38} R.C. 2907.05 provides,

              (A) No 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 any of the following applies:

              (1) The offender purposely compels the other person, or one of the

       other persons, to submit by force or threat of force.

       {¶39} “Sexual Contact” is defined as “any touching of an erogenous zone of

another, including without limitation the thigh, genitals, buttock, pubic region, or, if the
Licking County, Case No. 17-CA-81                                                      14


person is a female, a breast, for the purpose of sexually arousing or gratifying either

person”. R.C. 2907.01.

      {¶40} In the case at bar, C.P. testified that in September 2016, H.M. forced his

way into her bedroom. H.M. grabs her arm, and took her to his room. Then, H.M. put

C.P.'s hands on his penis. H.M. admitted that he had threatened to kill C.P. in the past.

T., Sept. 22, 2017 at 242-243. He further admitted to making threats to harm C.P.

“multiple times.” T., Sept. 22, 2017 at 243. The results of the polygraph tests that H.M.

agreed to take indicate that he was being deceptive about the events that C.P. testified

had occurred.

      {¶41} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

H.M. had committed the crime of Gross Sexual Imposition by the use or threat of force.

We hold, therefore, that the state met its burden of production regarding each element of

the crime Gross Sexual Imposition by the use or threat of force and, accordingly, there

was sufficient evidence to support H.M’s adjudication.

      B. Manifest Weight of the Evidence.

      {¶42} When an appellate court considers a claim that a conviction is against the

manifest weight of the evidence, the court must dutifully examine the entire record, weigh

the evidence, and consider the credibility of witnesses. State v. Thompkins, 78 Ohio St.3d

380, 386–387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other

grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355.

The reviewing court must bear in mind, however, that credibility generally is an issue for

the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001);
Licking County, Case No. 17-CA-81                                                            15

State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31. Because the

trier of fact sees and hears the witnesses and is particularly competent to decide whether,

and to what extent, to credit the testimony of particular witnesses, the appellate court

must afford substantial deference to its determinations of credibility. Barberton v. Jenney,

126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20.

              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every

       reasonable presumption must be made in favor of the judgment and the

       finding of facts.

                                             ***

              “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent with

       the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

Thus, an appellate court will leave the issues of weight and credibility of the evidence to

the fact finder, as long as a rational basis exists in the record for its decision. State v.

Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.

       {¶43} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “ ‘the jury 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. Thompkins, supra, 78 Ohio St.3d at 387,
Licking County, Case No. 17-CA-81                                                      16

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.

1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional

case in which the evidence weighs heavily against the conviction.” Id.

      ISSUE FOR APPEAL

      Whether the trier of fact court clearly lost his way and created such a manifest

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

      {¶44} The trier of fact was free to accept or reject any and all of the evidence

offered by the parties and assess the witness’s credibility. “While the trier of fact may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant’s conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996

WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although

the evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n. 4,

684 N.E.2d 668 (1997).
Licking County, Case No. 17-CA-81                                                        17


       {¶45} In the case at bar, the judge heard the witnesses, viewed the evidence and

heard H.M.’s attorney’s arguments and explanations about H.M., and C.P. The judge

was able to see for himself H.M. and C.P. subject to cross-examination. Thus, a rational

basis exists in the record for the Judge’s decision.

       {¶46} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The judge

neither lost his way nor created a miscarriage of justice in adjudicating H.M. delinquent

of rape and gross sexual imposition.

       {¶47} Based upon the foregoing and the entire record in this matter we find H.M.’s

adjudication of delinquent for rape by force or threat of force and gross sexual imposition

by force or threat of force is not against the sufficiency or the manifest weight of the

evidence. To the contrary, the judge appears to have fairly and impartially decided that

matter. The judge heard the witnesses, evaluated the evidence, and was convinced of

H.M.’s guilt.

       {¶48} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crime of rape by force and gross sexual imposition by force for which H.M. was

adjudicated.

       C). Conclusion.

       {¶49} H.M.’s fourth assignment of error is overruled.
Licking County, Case No. 17-CA-81                                                          18


                                                 V.

       {¶50} In his fifth assignment of error, H.M. argues that he received ineffective

assistance of counsel because his trial counsel failed to object to the timing and

mandatory nature of H.M.'s sexual offender classification.

       {¶51} In light of our disposition of H.M.’s First, Second and Third Assignments of

Error, in which we agree that the juvenile court erred in classifying H.M. during the

dispositional phase of the proceedings, H.M. cannot demonstrate prejudice from

counsel’s performance.

       {¶52} H.M.’s Fifth assignment of error is overruled.

       {¶53} The judgment of the Licking County Court of Common Pleas, Juvenile

Division is affirmed in part and reversed in part. H.M.’s classification as a tier II juvenile

offender is vacated and this case is remanded for proceedings in accordance with our

opinion and the law.

By Gwin, P.J.,

Delaney, J., and

Wise, Earle, J., concur
