[Cite as State v. Butler, 2012-Ohio-5022.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               DEFIANCE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 4-11-13

        v.

THOMAS L. BUTLER,                                        OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Defiance County Common Pleas Court
                           Trial Court No. 10 CR 10724

                        Judgment Reversed and Cause Remanded

                            Date of Decision: October 29, 2012




APPEARANCES:

        Terice A. Warncke for Appellant

        Morris J. Murray and Russell R. Herman for Appellee
Case No. 4-11-13


WILLAMOWSKI, J.

        {¶1} Defendant-appellant Thomas L. Butler (“Butler”) brings this appeal

from the judgment of the Court of Common Pleas of Defiance County finding him

guilty of four counts of sexual battery and sentencing him to a total of sixteen

years in prison. For the reasons set forth below, the judgment is reversed.

        {¶2} ALC was born on October 15, 1981, to her biological mother CJW.

When ALC was around five years old, she was removed from the home and

placed in foster care. Eventually, CJW’s parental rights were legally terminated

and ALC was adopted by a new family. Due to abuse in the adoptive home, ALC

was returned to the custody of the State.                 As part of her caseplan, she was

permitted to visit with her biological mother, whose parental rights to ALC had

been previously legally terminated. CJW was then married to Butler.

        {¶3} ALC had frequent scheduled visits with CJW. However, she also took

it upon herself to arrange unscheduled visits to CJW’s home, frequently when

CJW was not home and only Butler was present.1 Eventually, her relationship

with Butler became sexual. Once she turned eighteen, ALC moved into the home

with Butler and CJW. Butler provided ALC with marijuana. He also gave her

money for a tongue piercing and signed the parental consent form. CJW joined in




1
   ALC’s foster parents were unaware that ALC was at CJW’s home, instead thinking she was with friends
after school.

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Case No. 4-11-13


the sexual activities with Butler and ALC. In time, Butler and CJW separated and

ALC no longer lived with him.

         {¶4} Several years later, Lieutenant Cliff Vandermark (“Vandermark”) was

investigating an unrelated claim of sexual molestation. Vandermark learned then

of the relationship between Butler and ALC back in the late 1990’s.            When

questioned by Vandermark, Butler admitted to the sexual relationship.

         {¶5} In January of 2010, the Defiance County Grand Jury indicted Butler

on one count of rape in violation of R.C. 2907.02(A)(2), a felony of the first

degree, and four counts of sexual battery in violation of R.C. 2907.03(A)(5),

felonies of the third degree. All of the offenses were alleged to have occurred

between November 1, 1997 and October 14, 1999. Butler entered pleas of not

guilty to all of the charges. A jury trial was held on August 23-24, 2010. At the

conclusion of the trial, the jury was unable to reach a verdict as to the rape charge,

but found Butler guilty of the remaining four sexual battery charges.             On

September 7, 2010, Butler was sentenced to four years in prison on each charge

with the sentences to be served consecutively for a total prison sentence of sixteen

years. Butler appeals from this judgment and raises the following assignments of

error.

                            First Assignment of Error

         [Butler] was denied his constitutionally guaranteed right to
         effective assistance of counsel.

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                           Second Assignment of Error

       The trial court committed reversible error by overruling
       [Butler’s] motion for acquittal after the State’s case in chief
       because [Butler] was not in loco parentis under State v. Noggle,
       and the indictment was insufficient as a matter of law regarding
       the status of in loco parentis.

                            Third Assignment of Error

       The trial court committed reversible error by instructing the
       jury that it was not necessary for the State to prove the exact
       dates of the offenses but merely a date reasonably near the date
       claimed and by failing to provide an adequate instruction of the
       meaning of in loco parentis under Noggle.

                           Fourth Assignment of Error

       The State failed to provide sufficient evidence to sustain the
       convictions against [Butler].

                            Fifth Assignment of Error

       The verdicts in this case were against the manifest weight of the
       evidence and should be reversed.

                            Sixth Assignment of Error

       [Butler] was sentenced contrary to law because the seriousness
       factor considered by the court was already inherent in the
       subsection of the statute of which he was convicted.

In the interest of clarity, the assignments of error will be addressed out of order.

       {¶6} In the second assignment of error, Butler claims that the trial court

erred in denying his motion for acquittal pursuant to Criminal Rule 29 because

there was insufficient evidence to prove that he was acting in loco parentis. He

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also claims that there were issues with the language of the indictment. When

determining whether there is sufficient evidence to support a conviction, “[t]he

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, 61 Ohio St.3d

259, 574 (1991), ¶ 2 of the syllabus.

       {¶7} The Ohio Supreme Court has previously defined in loco parentis as “a

person who has assumed the dominant parental role and is relied upon by the child

for support.” State v. Noggle, 67 Ohio St.3d 31 (1993). The court went further

and added that the person would have “assumed the same duties as a guardian or

custodian, only not through a legal proceeding.” Id. at 33.

       {¶8} This court has recently addressed what is necessary for a person to be

acting in loco parentis.

       Whether a person stands in loco parentis to a child is a question
       of fact. State v. Caton, 137 Ohio App.3d 742, 750, 739 N.E.2d
       1176 (1st Dist.2000). “It is well settled that an appellate court
       will not reverse a trial court's finding of fact based on
       insufficient evidence where the finding is supported by some
       competent, credible evidence.” Id. The evidence must be viewed
       “in the light most favorable to the prosecution.” Id., citing State
       v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

       According to the Supreme Court of Ohio, in loco parentis means
       “ ‘charged, factitiously, with a parent's rights, duties, and
       responsibilities.’ “ Noggle, at 33, 615 N.E.2d 1040, quoting
       Black's Law Dictionary 787 (6 Ed.1990). As previously stated, a
       person stands in loco parentis to a child when he “has assumed

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Case No. 4-11-13


       the dominant parental role and is relied upon by the child for
       support.” Id. The term applies to a person who has “put himself
       in the situation of a lawful parent assuming the obligations
       incident to the parental relation, without going through the
       formalities necessary to a legal adoption.” Evans v. Ohio State
       Univ., 112 Ohio App.3d 724, 736, 680 N.E.2d 161 (10th
       Dist.1996).

State v. Knepley, 3d Dist. No. 7-11-02, 2012-Ohio-406, ¶ 15-16. In Knepley, the

evidence showed that Knepley lived with the child’s mother, he put the child to

bed by rocking her to sleep, provided financial support, and fed the child.

Knepley had been seen to make the child bottles, change her diapers, and care for

her when she was ill. Knepley even prevented the biological father from visiting

with the child. Based upon this evidence, the trial court and this court concluded

that Knepley had provided financial support and physical care for the child and

was thus acting in loco parentis

       {¶9} Here, evidence was provided that Butler on a couple of occasions

cooked food while she was there and she ate. Butler also gave ALC some money.

He also signed a permission slip for her to get her tongue pierced. However, ALC

testified that Butler provided her with marijuana and many of the things given to

her by Butler were given in an effort to persuade her to engage in sexual activities

with him. CJW testified that ALC told her Butler was bribing her to engage in

sexual intercourse with him. This type of “support” was de minimus in nature and

was less support than bribery.     At that time, there was no legal relationship


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between any of the parties. ALC was in the custody of the State and it was

responsible for her support. ALC admitted that she was at Butler’s home without

the knowledge or permission of her foster parents most of the time. The visits

with CJW were limited at the beginning and after it was learned that Butler

provided ALC with marijuana, they were supervised. Unlike the defendant in

Knepley, Butler was not acting like a parent. Providing bribes of drugs and cash in

exchange for sex is not acting like a parent, but rather is the exact opposite of how

a parent should be acting. Butler was not responsible for the care or well-being of

ALC.      He did not “put himself in the situation of a lawful parent assuming the

obligations incident to the parental relation, without going through the formalities

necessary to a legal adoption.” Knepley, at ¶16. ALC was not relying upon Butler

for support. Thus, the evidence does not support a finding that Butler was acting

in loco parentis at the time he engaged in sexual conduct with a minor.2 Having

found that the evidence was insufficient to support a conviction for acting in loco

parentis, this court need not address the argument concerning the language of the

indictment. The second assignment of error is sustained.




2
  The dissent claims that the evidence was sufficient based upon the fact that ALC was at Butler’s home
when he was home alone and that she is the biological daughter of Butler’s wife at that time. However, the
wife’s parental rights had been terminated and ALC was adopted by another family. Thus at that time,
there was no legal relationship between ALC and the wife. They were legal strangers under the law.
Additionally, ALC may have been at the home, but the testimony was that she there without either the
permission or the knowledge of her foster parents. She had told them she was going to the home of various
friends and was sneaking over to Butler’s home.

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Case No. 4-11-13


       {¶10} The fourth assignment of error is similar to the second in that it

argues that the evidence was insufficient to prove that Butler committed the sexual

battery while acting in loco parentis.

       Sufficiency of the evidence is a test of adequacy used to
       “determine whether the case may go to the jury or whether the
       evidence is legally sufficient to support the jury verdict as a
       matter of law.” * * * A conviction based on insufficient evidence
       constitutes a denial of due process, and the defendant may not be
       recharged for the offense. * * * In reviewing a claim under the
       sufficiency of the evidence standard, an appellate court must
       determine “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. Alvarado, 3d Dist. No. 12-07-14, 2008-Ohio-4411, ¶23 (citations omitted).

For the reasons set forth above in the analysis of the second assignment of error,

the fourth assignment of error is sustained.

       {¶11} Having found error prejudicial to Butler in the second and fourth

assignments of error, the remaining assignments of error are moot and need not be

addressed.

       {¶12} The judgment of the Court of Common Pleas of Defiance County is

reversed and the matter is remanded for further proceedings consistent with this

opinion.

                                                            Judgment Reversed and
                                                                 Cause Remanded
ROGERS, J., concurs.
/jlr

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Case No. 4-11-13


PRESTON, J., Dissents.

       {¶13} Since the majority opinion minimizes the evidence presented at trial,

I must respectfully dissent.

       {¶14} In his second and fourth assignments of error, Butler argues that the

State failed to present sufficient evidence demonstrating he was a “person in loco

parentis,” as required under R.C. 2907.03(A)(5). Viewing the evidence in a light

most favorable to the prosecution, I would conclude that the State presented

sufficient evidence on this element.

       {¶15} When determining whether a person is acting in loco parentis, an

appellate court should consider the following factors:

       (1) the person is charged with a parent’s rights and responsibilities;

       (2) the person has assumed the same duties as a guardian or

       custodian; (3) the person has assumed a dominant parental role; (4)

       the child relies upon the person for support; (5) the child “goes

       home” to the person; (6) the person’s relationship with the child is

       close, supportive, and protective; (7) the person has the intention of

       acting as a parent, which is shown by the acts, conduct, and

       declaration of the person; (8) the person intentionally assumes the

       obligations incidental to the parental relationship; and (9) the person




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Case No. 4-11-13


       is the primary caretaker for the child while the biological parent is

       absent due to, for example, employment

State v. Abubakar, 10th Dist. No. 11AP-440, 2011-Ohio-6299, ¶ 13.

       {¶18} Butler was married to and living with the victim’s biological mother.

(Aug. 23, 2010 Tr. at 153). The victim testified that she considered Butler to be

her “stepdad.” (Id. at 154). The victim was at Butler’s home three days during the

school week, often leaving directly from school to come to Butler’s home, and,

about a month or two after reconnecting with her biological mother, she slept over

at the residence on weekends while exercising visitation with her biological

mother. (Id. at 155, 168, 171). The victim testified that Butler gave her “material

possessions, money” while she was in the residence, and that Butler paid to have

her tongue pierced. (Id. at 162). Both the victim and her biological mother

indicated that Butler signed the parental consent forms for the victim to get her

tongue pierced. (Id. at 163, 207). The victim further testified that, while she was

at Butler’s home, he provided her food, gave her money, and supported her. (Id. at

170). After she was 18, the victim moved into the home with Butler and her

biological mother. (Id. at 159).

       {¶19} The majority seizes upon the victim and her biological mother’s

characterization of the money given to the victim as “bribes” for having sex to

conclude that Butler was not financially supporting the victim. Majority Op. at ¶


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9. Aside from the fact that financial support is but one of many factors to consider

in determining whether a person is in loco parentis, the majority fails to recognize

that the jury could classify the money given to the victim as more than mere

bribery3 and fails to recognize the victim’s subsequent testimony that Butler was

supporting her, not to mention the fact that the victim was in Butler’s home three

days per week and on the weekends. State v. Funk, 10th Dist. No. OSAP-230,

2006-Ohio-2068, ¶ 70; Abubakar, 2011-Ohio-6299, at ¶ 10 (“* * * the element of

financial support implied in the Noggle syllabus is not solely determinative of a

person’s status as in loco parentis. A close, supportive, and protective in loco

parentis relationship need not include provision for the material needs of the

child.”).    The jury could have also concluded that Butler was assuming the

obligations incidental to the parental relationship when he signed the parental

consent forms for the victim to get her tongue pierced. There was also testimony

that the victim was under Butler’s care/supervision while the biological mother

was working. Finally, a reasonable juror could infer that Butler was assuming

parental obligations given the significant amount of time that the victim spent with

Butler, and because the victim moved in with him after she turned 18. This is

especially true in light of the fact that Butler was married to the victim’s biological

mother, and the victim wanted to reestablish a relationship with her biological

3
  In fact, it seems completely reasonable for a rational juror to conclude that the victim and the mother’s
after-the-fact classification of the money as “bribes” was their effort to diminish their own moral or
criminal culpability in the various debaucheries that occurred, as the case may be.

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Case No. 4-11-13


mother. Common sense dictates that Butler was involved in parenting the victim,

and the victim even testified that she considered Butler as her stepdad.

       {¶20} In a footnote, the majority explains that, at the time the victim was

visiting Butler, “there was no legal relationship between [the victim] and

[Butler’s] wife. They were legal strangers under the law.” Whether the victim

was a “legal stranger” to her biological mother is irrelevant; it is the relationship

between Butler and the victim that is dispositive herein.         Furthermore, the

majority’s observation concerning the lack of any legal relationship between the

victim and Butler highlights the very reason that the State prosecuted this case

under an in loco parentis theory, since Butler “assumed the same duties as a

guardian or custodian, only not through a legal proceeding.” Noggle, 67 Ohio

St.3d at 33 (Emphasis added). See also Evans v. Ohio State Univ., 112 Ohio

App.3d 724, 736 (10th Dist.1996) (“a person standing in loco parentis to a child is

one who had put himself in the situation of a lawful parent assuming the

obligations incident to the parental relation, without going through the formalities

necessary to a legal adoption.”) (Emphasis added). I also find the foster parents’

knowledge that the victim was visiting Butler or their permission to do so

irrelevant to whether Butler stood in loco parentis.

       {¶21} Viewing the evidence in a light most favorable to the State, I would

find sufficient evidence that Butler was a person in loco parentis under R.C.


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Case No. 4-11-13


2907.03(A)(5). For these reasons, I would overrule Butler’s second and fourth

assignments of error and proceed to discuss his remaining assignments of error.

Therefore, I dissent.

/jlr




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