[Cite as In re K.W., 2009-Ohio-3152.]




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



IN THE MATTER OF:                                     CASE NO. 9-08-57

     K.W.,

   DEFENDANT-APPELLANT.                                  OPINION



                 Appeal from Marion County Common Pleas Court
                                 Family Division
                          Trial Court No. 2007-DL-01122

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                              Date of Decision: June 29, 2009




APPEARANCES:

        Kevin P. Collins for Appellant

        Brent Yager for Appellee
Case No. 9-08-57


WILLAMOWSKI, J.


       {¶1} Defendant-appellant K.W. brings this appeal from the judgment of

the Court of Common Pleas of Marion County, Juvenile Division, adjudicated him

to be a delinquent. For the reasons set forth below, the judgment is affirmed in

part and reversed in part.

       {¶2} On July 15, 2007, the father of the victims, M.S. was walking to the

garage and glanced into the bedroom window of the victims, D.S. and R.S.. Inside

the bedroom, he observed the victims with K.W. R.S. and K.W. were naked and

K.W. had his penis against R.S.’s buttocks.     D.S. was in the room and was

shirtless. M.S. hit the window and yelled at the children to stop. K.W. was then

told to leave the home.

       {¶3} On July 16, 2007, the Department of Children’s Services of Marion

County (“the Agency”) was notified of the incident. Intake investigator Jackie

Campbell (“Campbell”) then interviewed D.S. and R.S.          On July 19, 2007,

Campbell and Detective Hildreth (“Hildreth”), of the Marion County Sheriff’s

Department, interviewed K.W. at Campbell’s insistence at the Agency so they

could “help him.” Campbell and Hildreth spoke with K.W. again on July 27,

2007. K.W. was brought to the Agency by his father after he stated details of what

had occurred on another occasion. K.W. then began psychological treatment with

Dr. Keith Hughes (“Hughes”) on July 30, 2007.



                                       -2-
Case No. 9-08-57


         {¶4} On October 22, 2007, a complaint for delinquency was filed against

K.W., alleging that he had engaged in conduct, which if committed by an adult,

would constitute rape and gross sexual imposition. K.W. denied the allegations on

November 6, 2007. A pretrial hearing was held on December 20, 2007, and a

competency hearing was requested.        K.W. then was examined by Dr. James

Karpawich (“Karpawich”), a forensic psychologist, to determine his competency.

On February 22, 2008, Karpawich filed his opinion that K.W. lacked competency

to proceed to trial due to his lack of comprehension concerning the legal system

and lack of ability to assist his attorney. The trial court held a hearing on March 4,

2008, on the issue of competency, and entered judgment on April 8, 2008, finding

that K.W. was not competent to stand trial at that time. On May 7, 2008, the

magistrate filed a report indicating that in his opinion, K.W. was now competent to

stand trial after being educated about the legal system. The matter was set for

trial.

         {¶5} On May 9, 2008, K.W. filed a motion to dismiss the charges as being

in the best interest of the community and the child. The State filed its response on

May 19, 2008. On May 29, 2008, the State filed a motion requesting a new

psychological evaluation of K.W. be completed by Karpawich. K.W. filed his

objection to the second evaluation on June 2, 2008. On June 3, 2008, the trial

court ordered K.W. and one of his parents to submit to the second evaluation.

However, it was ordered that any information received from the examination


                                         -3-
Case No. 9-08-57


would not be used for the purpose of adjudication. Karpawich filed his evaluation

on June 30, 2008. A hearing was held on the motion on July 8, 2008. At the

hearing, both Hughes and Karpawich testified as to their beliefs regarding K.W.’s

psychological state. The trial court overruled the motion at the conclusion of the

hearing.

      {¶6} On July 24, 2008, a hearing was held on K.W.’s motion to suppress.

K.W. claimed that his confessions should be excluded because he was not

informed of his Miranda rights prior to being questioned.         The trial court

overruled this motion finding that K.W. was not in custody at the time of the

interrogation. A trial was held on the case on August 5, 2008. On August 13,

2008, the trial court entered its judgment adjudicating K.W. delinquent on one

count of rape and one count of gross sexual imposition. However, the trial court

found K.W. not delinquent on the count of attempted rape. The dispositional

hearing was subsequently held on October 1, 2008. The trial court ordered K.W.

to a minimum of one year commitment to the Department of Youth Services and

suspended that sentence pending K.W.’s successful completion of probation.

K.W. appeals from this judgment and raises the following assignments of error.

                           First Assignment of Error

       The record contains insufficient evidence to support K.W.’s
       adjudication of delinquency based on rape.




                                       -4-
Case No. 9-08-57



                          Second Assignment of Error

       The record contains insufficient evidence to support K.W.’s
       adjudication of delinquency based on gross sexual imposition.

                           Third Assignment of Error

       The juvenile court erred to K.W.’s prejudice by denying his
       motion to suppress evidence.

                          Fourth Assignment of Error

       The trial court erred to K.W.’s prejudice by denying his motion
       to dismiss.

       {¶7} In the first assignment of error, K.W. alleges that the trial court’s

finding of delinquency based upon the rape allegation is not supported by

sufficient evidence.

       An appellate court’s function in 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. State v. Jenks (1991), 61 Ohio
       St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. “In
       essence, sufficiency is a test of adequacy. Whether the evidence
       is legally sufficient to sustain a verdict is a question of law.”
       State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d
       541. 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. Jenks at 273, 574 N.E.2d 492.

State v. Shields, 8th Dist. No. 91033, 2009-Ohio-956, ¶11.

       {¶8} K.W. argues that the evidence was insufficient because the only

evidence of rape came from the confession of K.W.


                                       -5-
Case No. 9-08-57


         The corpus delicti of a crime is essentially the fact of the crime
         itself, as it is technically comprised of the act and the criminal
         agency of the act. State v. Maranda (1916), 94 Ohio St. 364, 114
         N.E.2d 1038, paragraph one of the syllabus.

         It has long been established as a general rule in Ohio that there
         must be some evidence outside of a confession, tending to
         establish the corpus delicti, before such confession is admissible.
         The quantum or weight of such outside or extraneous evidence
         is not of itself to be equal to proof beyond a reasonable doubt,
         nor even enough to make it a prima facie case. It is sufficient if
         there is some evidence outside of the confession that tends to
         prove some material element of the crime charged. Id. at
         paragraph two of the syllabus. This Court has held that “[a]
         mere confession without corroboration by the presentation of
         other evidence outside the confession which tends to prove some
         material element of the crime charged is not admissible.” State
         v. Eames (Mar. 7, 1994), 3d Dist. No. 14-93-3, * * * citing State v.
         Black (1978), 54 Ohio St.2d 304, 376 N.E.2d 948.

         The corpus delicti rule is not applied by courts with “dogmatic
         vengeance.” State v. Van Hook (1988), 39 Ohio St.3d 256, 261,
         530 N.E.2d 883. The state has the burden only to produce
         “some evidence” of the corpus delicti. Id. Although minimal
         proof is required, the state must produce some proof that a
         crime was committed. Id.; Maranda, 94 Ohio St. at 371, 114
         N.E.2d 1038.

In re Amos, 3d Dist. No. 3-04-07, 2004-Ohio-7037, ¶13-14.

        {¶9} In this case, the State argues that K.W. was delinquent because he

allegedly committed a rape by engaging in fellatio with a child under the age of

13.1 However, the only evidence that this event occurred was the confession of a

young ten year old boy with no prior contact with the legal system being


1
    The State at the hearing argued that K.W. was guilty of rape due to the conduct observed by M.S.
However, there was no evidence of even the slightest penetration, so that conduct cannot be the basis of a
rape charge.


                                                   -6-
Case No. 9-08-57


questioned by the social worker and a Marion County Sheriff’s Deputy without

anyone else present in the room and without benefit of the Miranda warnings to

either him or his parents.2 Specifically, K.W. stated that he and D.S. had each

placed their mouths on the other’s penis. No one witnessed this event and no

other evidence was presented that would confirm that this event ever occurred.3

Absent the confession, there is no other evidence to indicate that the crime

occurred. The State argues that because sexual contact occurred at a different

time, it must have occurred this time as well. However, the sexual contact which

formed the basis of the other allegations was different in nature and occurred at a

different time and location than the allegation of fellatio. These are separate

incidents and do not provide independent evidence that the crime of fellatio was

committed. Without some independent evidence of the offense, the confession

alone is not admissible.             Since there was no independent evidence and the

confession is inadmissible to prove the offense, the evidence is not sufficient to

support the conviction for rape. The first assignment of error is sustained.

         {¶10} K.W.’s second assignment of error alleges that the record contains

insufficient evidence to support the adjudication of delinquency based upon gross



2
   In fact, at both interrogations, which occurred at children’s services, the social worker and deputy were
present. Before questioning, the social worker told K.W. that she needed him to be honest with her because
she could not help him if he was not honest. Before the second interrogation, the social worker again told
him that he needed to tell them everything so that they could get him the help he needed and not “bug” him
anymore. He was not told that anything he said could lead to charges or that he might get into trouble.
3
  The alleged victim of the fellatio did not testify, so there was no corroboration of the confession through
the victim.


                                                    -7-
Case No. 9-08-57




sexual imposition. To support the charge of gross sexual imposition in this case,

the State had to prove that K.W. engaged in sexual contact with a child under the

age of thirteen. R.C. 2907.05(A)(4). Sexual contact is defined as “any touching

of an erogenous zone of another, including without limitation, the thigh, genitals,

buttock, pubic region * * * for the purpose of sexually arousing or gratifying

either person.” R.C. 2907.01(B).

      {¶11} In this case, the State presented the eye witness testimony of M.S.

that he saw K.W. placing his erect penis on the buttock of R.S. K.W. admitted in

his confession that he had engaged in sexual contact with R.S. and D.S. He stated

that he did so because he wanted to know what sex was.           Based upon this

evidence and viewing it in a light most favorable to the State, there is sufficient

evidence to support an adjudication of delinquency based upon gross sexual

imposition. The second assignment of error is overruled.

      {¶12} The third assignment of error alleges that the trial court erred in

denying the motion to suppress the confessions.            K.W. argues that the

interrogations were custodial and no Miranda warnings were given prior to

questioning.

       Juveniles are entitled both to protection against compulsory
       self-incrimination under the Fifth Amendment and to Miranda
       warnings where applicable. In re Gault (1967), 387 U.S. 1, 54[,
       87 S.Ct. 1428, 18 L.Ed.2d 527]. When a juvenile is subjected to
       custodial interrogation, special care must be taken to insure that


                                        -8-
Case No. 9-08-57


       his or her rights are protected, particularly when it is alleged
       that the juvenile has waived the right to silence. Id. at 45. “In
       deciding whether a juvenile’s confession is involuntarily
       induced, the court should consider the totality of the
       circumstances, including the age, mentality and prior criminal
       experience of the accused; the length, intensity, and frequency
       of interrogation; and the existence of physical deprivation or
       inducement.” In re Watson (1989), 47 Ohio St.3d 86, [548
       N.E.2d 210,] at paragraph one of syllabus.

       “If counsel was not present for some permissible reason when
       an admission [by a juvenile] was obtained, the greatest care
       must be taken to assure that the admission was voluntary in the
       sense not only that it was not coerced or suggested, but also that
       it was not the product of ignorance of rights or of adolescent
       fantasy, fright or despair.” In re Gault, supra, 387 U.S. at 54;
       see also Fare v. Michael C. (1979) 442 U.S. 707, 725[, 99 S.Ct.
       2560, 61 L.Ed.2d 197]. Although the Ohio Supreme Court has
       declined to adopt the rule that a juvenile must have a parent or
       attorney present before a valid waiver of the right to silence can
       be found, the presence or absence of a parent or attorney is a
       significant factor when considering the totality of circumstances.
       See In re Watson, supra, 47 Ohio St.3d at 90.

State v. Thompson, 7th Dist. Nos. 98 JE 28, 98 JE 29, 2001-Ohio-3528. The

police are not required to provide Miranda warnings every time they question an

individual, but must do so when the questioning rises to the level of custodial

interrogation. Miranda v. Arizona (1966), 384 U.S. 436, 369-73, 86 S.Ct. 1602,

16 L.Ed.2d 694. “A person is ‘in custody’ only if under the totality of the

circumstances, a reasonable person in the same situation would feel that he was

not free to leave.” In re R.H., 2nd Dist. No. 22352, 2008-Ohio-773, ¶16. (citing

State v. Wood, 2nd Dist. No. 2006 CA 1, 2007-Ohio-1027). “In deciding whether

a defendant’s confession is involuntarily induced, the court should consider the


                                      -9-
Case No. 9-08-57


totality of the circumstances, including the age, mentality, and prior criminal

experience of the accused; the length, intensity, and frequency of interrogation;

the existence of physical deprivation or mistreatment; and the existence of threat

or inducement.”     Id.   Since custodial interrogation is inherently coercive,

statements from those interrogations not preceded by the Miranda warnings are

not admissible. Id. at ¶17 (citing State v. Parrish, 2nd Dist. No. 21091, 2006-

Ohio-2677).

      {¶13} One of the purposes of the privilege against self-incrimination “is to

prevent the state, whether by force or by psychological domination, from

overcoming the mind and will of the person under investigation and depriving

him of the freedom to decide whether to assist the state in securing his

conviction.” Application of Gault (1967), 387 U.S. 1, 47, 87 S.Ct. 1428, 18

L.Ed.2d 527.

       The authoritative “Standards for Juvenile and Family Courts”
       concludes that, “Whether or not transfer to the criminal court is
       a possibility, certain procedures should always be followed.
       Before being interviewed (by the police), the child and his
       parents should be informed of his right to have legal counsel
       present and to refuse to answer questions or be fingerprinted if
       he should so decide.”

Id. at 49. In Gault, the Supreme Court of Arizona held that juveniles and their

parents need not be advised of the child’s right to remain silent prior to

questioning because without the confession, the child could not obtain the right

treatment. The United States Supreme Court disagreed.


                                       -10-
Case No. 9-08-57


       [E]vidence is accumulating that confessions by juveniles do not
       aid in “individualized treatment,” as the court below put it, and
       that compelling the child to answer questions, without warning
       or advice as to his right to remain silent, does not serve their or
       any other good purpose. * * * [It] seems probable that where
       children are induced to confess by “paternal” urgings on the
       part of officials and the confession is then followed by
       disciplinary action, the child’s reaction is likely to be hostile and
       adverse – the child may well feel that he has been led or tricked
       into confession and that despite his confession, he is being
       punished.

       ***

       If counsel was not present for some permissible reason when an
       admission was obtained, the greatest care must be taken to
       assure that the admission was voluntary, in the sense not only
       that it was not coerced or suggested, but also that it was not the
       product of ignorance of rights or of adolescent fantasy, fright or
       despair.

Id. at 51-52, 55.

       {¶14} Here, the facts of what occurred are not in question. On July 18,

2007, Campbell went to K.W.’s home with a deputy sheriff and informed his

mother that she was to bring K.W. to the agency for questioning the next day or

they would do the questioning at the Sheriff’s office. K.W. was taken to the

agency on July 19, 2007, where he was taken into the interview room with

Campbell, Hildreth, and a friend of the family that K.W. requested accompany

him. At that time, K.W. was approximately 10 years and two months of age with

no prior interaction with the legal system or law enforcement.       Prior to the

interview, no warning was given to K.W. that possible criminal charges could



                                       -11-
Case No. 9-08-57


occur and he was not informed that he could end the questioning or leave at any

time. Detective Hildreth testified that at no time did he warn either K.W. or his

parents that K.W. did not have to talk, that charges could be filed, or that K.W.

had any choice but to answer the questions.4 July 24, 2008, Tr. 119-121. Instead,

K.W. and his parents were told that the agency only wanted to know what had

happened in order to help him. Detective Hildreth also testified that neither he

nor Campbell, to his knowledge, took any steps to insure the voluntariness or

K.W.’s understanding of what was happening during the interrogations. The

Marion County Sheriff’s Department policy towards the questioning of juveniles,

applicable to Detective Hildreth, requires that all juveniles be informed of their

Miranda rights along with their right to have a parent present prior to the

interrogation. See Exhibit G. This policy was not followed as K.W. was not told

of his Miranda rights, but was allowed to have someone with him during the first

interview. At the beginning of the interview, K.W. indicated that he did not want

to talk about what happened, but Campbell and Detective Hildreth continued to

ask him questions. Exhibit 3, at 3. The only concession made was that Campbell

asked him if it would be easier to answer questions rather than “just to tell the

story.” K.W. was not told that he did not need to talk to them if he really did not

want to do so.



4
 Hildreth testified that he did not think the warnings were necessary since this was just questioning and he
did not think charges would be filed due to K.W.’s young age. Tr. at 121.


                                                   -12-
Case No. 9-08-57


       {¶15} At the hearing, K.W.’s mother testified that she was told by

Campbell and Detective Hildreth that she needed to bring K.W. to the agency or

she would have to take him to the Sheriff’s Department. Tr. 140. She was not

informed that she had a choice whether to allow K.W. to be questioned. Id. She

was not informed that K.W. was free to go at any time, that charges could be

filed, that K.W. had the right to have an attorney, or even that K.W. had the right

to have someone with him during the interview. Id. She had to ask for someone

to accompany him. Id. After the interview, she testified that Campbell and

Detective Hildreth told her that they were not looking to charge K.W. or get him

in trouble, that they merely wanted to help him. Id. at 143-44.

       {¶16} Before the second interview, Campbell received a call from K.W.’s

father indicating that he wanted her to talk to his son again due to new

information. K.W. was taken to the agency by his father. During the second

interview, K.W. was alone in the interview room with Campbell and Detective

Hildreth. He was not accompanied by a parent. Testimony was provided that

again no rights, including the right to leave were discussed with either K.W. or his

parents. K.W. was again told to tell them everything so that they could help him

and so that they would not have to “bug him” anymore. Exhibit F, at 2. No

mention was made to anyone concerning the possibility of charges.

       {¶17} The above facts are not disputed. Thus, the issue before this court is

whether a reasonable person in K.W.’s position would have understood his


                                        -13-
Case No. 9-08-57


situation and his right not to answer questions. A reasonable person in K.W.’s

position is not an average adult, but is rather a young ten year old boy with no

prior contact with the justice system.              K.W. was taken to the agency to be

questioned by a social worker and a deputy sheriff. His mother was given no

option but to allow him to be questioned.5 When K.W. said he did not want to

talk, the questioning continued. The State repeatedly told him and his parents that

they only wanted to “help him,” so he had to talk to them. Additionally, K.W.

was found to be incompetent to stand trial in February of 2008, because he could

not even comprehend the legal system sufficiently to assist in his own defense.

Given all of these facts, it is hard to conclude that K.W. had sufficient knowledge

to appreciate the fact that he was free to leave and terminate the interview at any

time. See In re R.H., supra. Since a reasonable person in the same situation as

K.W. would not feel free to leave and terminate the interview, K.W. was in

custody for Miranda purposes and should have been informed of his rights.

        {¶18} Although the failure to inform K.W. of his Miranda rights is an

error, it is a harmless error as to the gross sexual imposition charge.6 When the

confession is excluded, there is still sufficient evidence to support the charge of

gross sexual imposition. M.S. witnessed the event and testified to what he saw.


5
 The only option told to her was to have him questioned at the Agency or at the Sheriff’s Department.
6
  The failure to provide a Miranda warning would exclude the second confession which was the only
evidence supporting the allegation of fellatio upon which the rape conviction was based. However, this
confession was already found to be inadmissible pursuant to the doctrine of corpus delicti in the first
assignment of error.


                                                -14-
Case No. 9-08-57


Viewing this evidence in a light most favorable to the State, reasonable minds

could conclude that K.W. did engage in sexual contact for the purpose of sexual

gratification. Since the error is harmless, the assignment of error is overruled.

       {¶19} Finally, K.W. claims that the trial court erred in overruling his

motion to dismiss. Once the issues before the juvenile court had been determined,

the trial court is required to do one of the following.

       (1) If the allegations of the complaint, indictment, or
       information were not proven, dismiss the complaint;

       (2) If the allegations of the complaint, indictment or
       information are admitted or proven, do any one of the following
       unless precluded by statute:

       (a) Enter       an    adjudication       and   proceed   forthwith   to
       disposition;

       (b) Enter an adjudication and continue the matter for
       disposition for not more than six months and may make
       appropriate temporary orders;

       (c) Postpone entry of adjudication for not more than six
       months;

       (d) Dismiss the complaint if dismissal is in the best interest of
       the child and the community.

Juv.R. 29(F). “Whether a delinquency proceeding should be dismissed or reach

the merits is within the sound discretion of the trial judge.” In re Arnett, 3d Dist.

No. 5-04-20, 2004-Ohio-5766, ¶9. “The term ‘abuse of discretion’ connotes more

than an error of law or judgment; it implies that the court’s attitude is




                                         -15-
Case No. 9-08-57


unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 219, 450 N.E.2d 1140.

        {¶20} In this case, the trial court held a hearing on July 8, 2008,

concerning the motion to dismiss.                   The State presented the testimony of

Karpawich while K.W. presented the testimony of Hughes.                                Following the

hearing, the trial court entered its judgment on July 11, 2008. The trial court

specifically found that K.W. was still in counseling with Hughes and that he did

not understand the seriousness of the incident. Based upon these findings, the

trial court determined that it was not in the best interest of either the child or the

community to dismiss the complaint. A review of the record indicates that these

findings and the conclusion were supported by some competent, credible

evidence. Thus, the trial court did not abuse its discretion in denying the motion

to dismiss. The fourth assignment of error is overruled.

        {¶21} Having sustained the first assignment of error, the judgment is

affirmed in part and reversed in part. The matter is remanded to the trial court for

vacation of the rape charge and a new dispositional hearing.7



7
  A review of the record indicates that during the first dispositional hearing, the terms of the probation
were generally boilerplate language. The trial court may want to review this language with an eye to the
facts of this case, particularly the young age of the defendant. This court notes that at the time of the
disposition, an eleven year old boy was ordered not to have “any contact with anyone under the age of 12
except for the immediate family” among other conditions. Given the tender age of K.W., these
requirements seem a little illogical as K.W. was allowed to remain in his home, but, under a strict
interpretation of the terms, would be prevented from attending school, church, or any other function with
kids his own age.



                                                  -16-
Case No. 9-08-57


                                                 Judgment Affirmed in Part,
                                      Reversed in Part and Cause Remanded


PRESTON, P.J. and SHAW, J., concur.

/jnc




                                -17-
