[Cite as In re T.A., 2012-Ohio-3174.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                  CHAMPAIGN COUNTY

IN THE MATTER OF:                             :
                                              :     Appellate Case Nos. 2011-CA-28
                 T. A.                        :     Appellate Case Nos. 2011-CA-35
                                              :
                                              :     Trial Court Case No. 2010-JA-62
                                              :
                                              :     (Juvenile Appeal from
                                              :     (Champaign County Family Court)
                                              :
                                           ...........

                                           OPINION

                               Rendered on the 13th day of July, 2012.

                                           ...........

NOEL EDWARD KAECH, Atty. Reg. #0038602, 20 South Limestone Street, Suite 120,
Springfield, Ohio 45502
       Attorney for Appellant

 NICK A. SELVAGGIO, Atty. Reg. #0055607, Champaign County Prosecuting Attorney, 200
North main Street, Urbana, Ohio 43078
       Attorney for Appellee

                                          .............

FAIN, J.

        {¶ 1}     Defendant-appellant T.A., a juvenile, appeals from his adjudication of

delinquency by reason of having committed an act that, if he were an adult, would constitute
                                                                                              2


Gross Sexual Imposition, in violation R.C. 2907.05(A)(4). T.A. contends that the statute is

unconstitutional as applied in cases in which both the alleged offender and the alleged victim

are under the age of thirteen. He further contends that because the statute is unconstitutional

as applied to him, the Juvenile Court was required to grant his Civ.R. 60(B) motion to vacate

the judgment of delinquency. Finally, he claims that the Juvenile Court did not properly

ascertain whether his admission of guilt was knowingly, voluntarily and intelligently made.

       {¶ 2}    We conclude that the statute in question is not unconstitutional as applied.

We also conclude that the Juvenile Court failed to substantially comply with Juv.R. 29(D),

thereby rendering T.A.’s admission invalid.

       {¶ 3}     Accordingly, the judgment of the Juvenile Court is Reversed, and this cause

is Remanded for further proceedings consistent with this opinion, thereby rendering T.A.’s

appeal from the denial of his motion to vacate the judgment moot. That appeal is Dismissed.



                               I. The Course of Proceedings

       {¶ 4}    On March 30, 2010, a delinquent child complaint was filed against T.A.,

alleging that he had committed acts that, if committed by an adult, would constitute two

counts of Rape, a first-degree felony. Each count alleged that the specified offenses were

committed in July 2009, when T.A. caused a two-year-old victim to perform fellatio upon

him. T.A. was ten and a half years old at the time of the offense.

       {¶ 5}    At a pre-trial hearing, T.A. and the State notified the Juvenile Court that they

had reached an agreement whereby the State would amend Count I to a charge of Gross

Sexual Imposition, in violation of R.C. R.C. 2907.05(A)(4), in exchange for T.A.’s admission
                                                                                                  3


to that charge, and the State would dismiss Count II.

        {¶ 6}     The Juvenile Court accepted T.A.’s admission and ordered the preparation of

a Pre-Sentence Investigation and a Sex Offender Assessment. Following a dispositional

hearing, the court entered an order in which T.A. was committed to the custody of the

Department of Youth Services for an indefinite period with a minimum term of one year and a

maximum term not to exceed T.A.’s twenty-first birthday. The commitment was suspended,

and T.A. was placed on community control.                T.A. appealed from the judgment of

delinquency.

        {¶ 7}    Subsequently, T.A. filed a motion pursuant to Civ.R. 60(B)(1) and (5),

seeking to vacate the disposition.       In support, T.A. argued that        he could not be held

accountable for a violation of R.C. R.C. 2907.05(A)(4), because that provision had been held

unconstitutional as related to juvenile offenders under the age of thirteen by the Supreme

Court of Ohio. In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528. The court

denied the motion, finding that In re D.B. was decided approximately three weeks after the

disposition of this case and that “it is well settled that in order to preserve the stability of final

judgments, a change in controlling case law does not subsequently provide an appellant with a

right to relief under Civ.R. 60(B).” The Juvenile Court did not reach the merits of the

motion.

        {¶ 8}     T.A. appealed from the denial of his motion. These appeals have been

consolidated.



          II. Due to Substantial Deficiencies in the Taking of T.A.’s Admission,
                                                                                         4


                his Admission Was Not Knowing, Intelligent, and Voluntary

       {¶ 9}     The Third Assignment of Error asserted by T.A. is as follows:

                THE TRIAL COURT ERRED BY ACCEPTING THE ADMISSION OF THE

       JUVENILE PRIOR TO DETERMINING THAT THE ADMISSION WAS

       KNOWING, VOLUNTARY, AND INTELLEGENT [SIC] IN VIOLATION OF THE

       DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS

       TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 10 & 16, OF THE

       OHIO CONSTITUTION AND JUVENILE RULE 29.

       {¶ 10}    T.A. claims that the Juvenile Court did not properly ascertain whether his

admission was knowing, voluntary and intelligent as required by Juv.R. 29(D).

       {¶ 11}    With regard to the admission, the following colloquy took place:

                THE PROSECUTOR: Your Honor, in this case we are moving the Court to

       amend Count One to a gross sexual imposition offense under 2907.05 and it would be

       (A)(4)(c)(2). It is a felony of the third degree. On an admission to that offense we

       would move to dismiss Count Two, and in this case, Your Honor, we would ask that a

       pre-sentence investigation be done as well as a sex offender assessment. In keeping

       with the Court’s, I guess custom in these kinds of cases, we would ask that assessment

       be done somewhere other than where he’s receiving treatment. We would also ask the

       no contact orders currently in place remain in place until the next hearing.

                      ***

                      THE COURT: [T.A.] have you had a chance to talk to [your attorney]

       about all of this this morning?
                                                                                       5


               THE DEFENDANT: Yes.

               THE COURT:        And he’s explained to you all that’s going on here?

               THE DEFENDANT: Yes.

               THE COURT: And you had a chance to hear [the prosecutor] say what,

what she believes is going to happen here this morning?

               THE DEFENDANT: Yes.

               THE COURT: And did you understand what [your attorney] told you

and what [the prosecutor] has said this morning?

               THE DEFENDANT: Yes.

               THE COURT: Do you understand that if you admit to the amended

charge of gross sexual imposition, that you’ll give up your right to have a trial on the

matter?

               THE DEFENDANT: Yes.

               THE COURT: In that the State’s no longer going to have to put on

evidence and witnesses and prove the case; you’re basically saying that that happened?

               THE DEFENDANT: Yes.

               THE COURT: Okay. You also understand that we’re going to have

some other things happen here in the future, but we’re going to come back for a

hearing at some point to decide what to do and at that time I can take the

recommendations of either of the attorneys or do anything else that I believe is going to

be necessary in this case?

               THE DEFENDANT: Yes.
[Cite as In re T.A., 2012-Ohio-3174.]
                 THE COURT: Okay. With that information then do you admit to the

amended charge of gross sexual imposition?

                 THE DEFENDANT: Yes.

                 THE COURT: Court will accept your admission.             Count Two is

dismissed. Court will order a pre-sentence investigation report to be prepared by our

probation department and also a sex offender assessment prior to the disposition

hearing on this. [T.A.] what’s going to happen is that one of my probation officers is

going to bring you in for an interview, okay?         They’re going to ask you some

questions and talk to you about this matter, prepare a report that they’re going to give

to the attorneys and give to help me better decide what needs to be done. Okay?

                 THE DEFENDANT: Yes.

                 THE COURT: * * * The other assessment, we’ve been talking about

that a little bit this morning, our probation department can give you some ideas on who

we use to do that, okay, and that needs to be done before we get back for the

disposition hearing so that I have an idea of everything that’s involved to make a

decision on what to do. Okay? * * *.

                 THE PROSECUTOR: Your Honor, if I could, I think that there’s

something that’s been missed here. I think there actually has to be an admission to

sufficient facts to support the charge in the admission. And so I would propose is

counsel willing to stipulate that his client is admitting to the Court’s statements rather

than go through the facts of the offense.

                 DEFENSE COUNSEL: What was the Court’s statement exactly?

                 THE PROSECUTOR: Just the report from Glenn Kemp that came with
                                                                                          7


the charge. I’m handing you my copy of the discovery. * * * And if he’s admitting to

the allegations in the Court’s statement, I think that’s sufficient.

                DEFENSE COUNSEL: I think I’d rather just have him admit to having

fellatio with the victim if that’s acceptable to everyone.

                THE PROSECUTOR: If he’s willing to admit to that, I’m okay with

that.

                DEFENSE COUNSEL: Are you willing to admit to that?

                THE DEFENDANT: I am.

                THE PROSECUTOR: But I think we also need an admission on the

record that she is two years old at the time of the offense to meet the elements of the

charge.

                DEFENSE COUNSEL: I think he can admit that she’s less than 5. I

don’t know that he knows her exact age.

                ***

                THE COURT: [T.A.], in regard to your admission to the charge of

gross sexual imposition, do you admit that the victim in this matter performed fellatio

upon you?

                THE DEFENDANT: I don’t know what that means.

                DEFENSE COUNSEL: Let me rephrase. That you had the victim who

was under 5 years of age put her lips on your penis?

                THE DEFENDANT: Yes.

{¶ 12}    T.A. contends that this plea colloquy is not sufficient to demonstrate even
                                                                                                    8


substantial compliance with Juv.R. 29(D).

       {¶ 13}    Juv.R. 29(D) provides as follows:

                The court may refuse to accept an admission and shall not accept an admission

       without addressing the party personally and determining both of the following;

                       (1) The party is making the admission voluntarily with understanding of

       the nature of the allegations and the consequences of the admission;

                       (2) The party understands that by entering an admission the party is

       waiving the right to challenge the witnesses and evidence against the party, to remain

       silent, and to introduce evidence at the adjudicatory hearing.

                       The court may hear testimony, review documents, or make further

       inquiry, as it considers appropriate, or it may proceed directly to the action required by

       division (F) of this rule.

       {¶ 14}    Strict compliance with this rule is preferable, but if a court substantially

complies with the rule, the admission will be deemed valid absent a showing of prejudice or

that the totality of the circumstances do not support a finding of a valid waiver.    In re C.S.,

115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 113. Substantial compliance

means that the juvenile subjectively understood the implications of his plea. Id. We employ a

de novo standard of review in determining whether the juvenile court complied with Juv.R.

29. See In re Becker, 8th Dist. Cuyahoga No. 68893, 1996 WL 447982, *1 (August 8, 1996).

       {¶ 15}    The Juvenile Court failed to inform T.A. of the possible dispositions or his

understanding thereof; did not inform T.A. that he had the right to confront or compel

witnesses and to present witnesses; did not inform him of his right to remain silent; and did
                                                                                        9


not ascertain whether any promises or threats had been made to induce the admission.

        {¶ 16}    We    find that T.A.'s admission was not knowingly, intelligently, and

voluntarily made. The Third Assignment of Error is sustained.



   III. Unlike R.C. 2907.02(A)(1)(b), Which Is Unconstitutional As Applied in a Case

   Where Both the Offender and the Victim Are Under Thirteen, R.C. 2907.05(A)(4),

Which Requires a Purpose of Sexual Arousal or Gratification, Is Constitutional in Cases

              in Which Both the Offender and the Victim Are Under Thirteen

        {¶ 17}     T.A.’s First Assignment of Error states as follows:

                 THE TRIAL COURT VIOLATED THE RIGHT OF THE APPELLANT TO

        DUE      PROCESS     OF    LAW     UNDER       THE    FIFTH      AND   FOURTEENTH

        AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION 16,

        OF THE OHIO CONSTITUTION AND TO EQUAL PROTECTION OF THE LAW

        UNDER THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION

        AND ARTICLE 1, SECTION 2 OF THE OHIO CONSTITUTION WHEN THE

        COURT ACCEPTED THE ADMISSION OF THE APPELLANT TO A VIOLATION

        OF SECTION 2907.05(A)(4)(C)(2) OF THE OHIO REVISED CODE.

        {¶ 18}    T.A. contends that the holding of the Supreme Court of Ohio in In re D.B.,

supra, renders R.C. 2907.05(A)(4) unconstitutional as applied to minors under the age of

thirteen.

        {¶ 19} In In re D.B., a twelve-year-old minor was charged with delinquency by

reason of committing the offense of Statutory Rape, in violation of R.C. 2907.02(A)(1)(b),
                                                                                            10


with a victim under the age of thirteen. That statute provides that “anyone who engages in

sexual conduct with a minor under the age of 13 commits statutory rape regardless of whether

force was used.” Id. at ¶ 25. “Sexual conduct” is defined as “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 opening of another.” R.C.

2907.01(A).

       {¶ 20}    The Supreme Court of Ohio held that “as applied to children under the age of

13 who engage in consensual sexual conduct with other children under the age of 13, R.C.

2907.02(A)(1)(b) is unconstitutionally vague because the statute authorizes and encourages

arbitrary and discriminatory enforcement. When an adult engages in sexual conduct with a

child under the age of 13, it is clear which party is the offender and which is the victim. But

when two children under the age of 13 engage in sexual conduct with each other, each child is

both an offender and a victim, and the distinction between those two terms breaks down.” Id.

at ¶ 24. Thus, the Court found that the statute, as applied to D.B., violated D.B.’s right to due

process of law. Id.

       {¶ 21} The Court further found that the statute, as applied to D.B., also violated his

right to equal protection, because he and the victim “were both members of the class protected

by the statute, and both could have been charged under the offense. Application of the statute

in this case to a single party violated the Equal Protection Clauses’s mandate that persons

similarly circumstanced shall be treated alike.” Id. at ¶ 30.

       {¶ 22}    We note that the Eleventh District Court of Appeals declined to extend the
                                                                                               11


holding in D.B. to an analysis of R.C. 2907.31(A)(1) – Disseminating Matter Harmful to

Juveniles – even though the offender was a juvenile who had sent, via cellular telephone, nude

photos of herself to a juvenile male. See, In the Matter of J.P., 11th Dist. Geauga No.

2011-G-3023, 2012-Ohio-1451. The court of appeals reasoned that the statute in question is

“quite clear as to what constitutes prohibited conduct and who constitutes an offender [ * * *

and J.P.] is not both a ‘victim’ and ‘offender.’ The statute requires only one person to act in

order to be culpable. In In re D.B., two people engaged in the proscribed conduct, but only

one was charged. Here, only appellant engaged in the unlawful act. * * * In this case, [J.P.]

recklessly disseminated harmful material. That is, since the facts alleged in the complaint

were found to be true, only appellant is in violation of the statute; whereas in In re D.B., ‘if the

facts alleged in the complaint were true, D.B. and M.G. would both be in violation of R.C.

2907.02(a)(1)(B).’ ”    Id. at ¶ 30 and 34.

       {¶ 23}    In the case before us, T.A. was found delinquent by reason of violating R.C.

2907.05(A)(4), which 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 thirteen years of age, whether or

not the offender knows the age of that person.” “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 person is a female, a breast, for the purpose of sexually arousing or

gratifying either person.” R.C. 2907.01(B).

       {¶ 24}    T.A. argues that the reasoning set forth in In re D.B., supra, should be
                                                                                            12


applied to violations of R.C. 2907.05(A)(4), because both he and the other child involved

were under the age of thirteen. He contends that, as with the Statutory Rape statute, the Gross

Sexual Imposition statute fails to provide guidelines for differentiating between an offender

and a victim. The State argues that “R.C. 2907.05(A)(4), unlike R.C. 2907.02(A)(1)(b), does

differentiate between victims and offenders in situations where both actors are children under

the age of thirteen years.”

       {¶ 25}    The State notes that the Statutory Rape statute prohibits sexual conduct,

which is a strict-liability offense because it does not require a specific mens rea, while the

Gross Sexual Imposition statute prohibits sexual contact, which requires an offender to act

purposefully. See State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111, 953 N.E.2d 816, ¶

26. Pursuant to R.C. 2901.22(A), a person acts purposefully when “it is his specific intention

to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a

certain nature, regardless of what the offender intends to accomplish thereby, it is his specific

intention to engage in conduct of that nature.”

       {¶ 26}    We agree with the State.         Statutory Rape only involves the offender

engaging in a proscribed act, regardless of his intent. Gross Sexual Imposition involves both

a proscribed act and a purpose – the purpose to cause sexual arousal or gratification. This

permits ready differentiation between victim and offender. As the State notes, a two-year-old

is not capable of forming the mens rea necessary to commit the offense.

       {¶ 27}    We conclude that, in this case, R.C. 2907.05(A)(4) is neither impermissibly

vague nor a violation of Equal Protection. T.A.’s First Assignment of Error is overruled.
                                                                                           13


                      IV. Assigned Error in the Trial Court’s Denial

                     of T.A.’s Motion to Vacate its Judgment Is Moot

       {¶ 28}    T.A.’s Second Assignment of Error provides:

                THE TRIAL COURT ERRED WHEN IT DENIED ON NOVEMBER 4, 2011,

       THE MOTION OF THE APPELLANT TO VACATE THE DISPOSITION

       ENTERED ON MAY 23, 2011.

       {¶ 29}    T.A. contends that the Juvenile Court was required to grant his Civ.R. 60(B)

motion to vacate the judgment of delinquency, because the statute upon which he was

adjudicated delinquent was found unconstitutional as applied to him.

       {¶ 30}    Given our disposition of T.A.’s Third Assignment of Error, and the

concomitant reversal of the judgment of the Juvenile Court, any error in the denial of T.A.’s

motion to vacate that judgment is moot.

       {¶ 31} T.A.’s Second Assignment of Error is overruled, as moot.



                                       V. Conclusion

       {¶ 32}    T.A.’s Third Assignment of Error having been sustained, his First

Assignment of Error having been overruled, and his Second Assignment of Error having been

overruled as moot, the judgment of the trial court is Reversed, and this cause is Remanded for

further proceedings consistent with this opinion. T.A.’s appeal from the trial court’s denial of

his motion to vacate the judgment of delinquency is Dismissed, as moot.

                                        .............

DONOVAN and HALL, JJ., concur.
                        14




Copies mailed to:

Noel Edward Kaech
Nick A. Selvaggio
Hon. Brett A. Gilbert
