[Cite as In re D.J., 2020-Ohio-1317.]




                                        IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




 IN RE:                                               :          CASE NO. CA2019-02-010

          D.J.                                        :                   OPINION
 .                                                                         4/6/2020
                                                      :

                                                      :




             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                             JUVENILE DIVISION
                             Case No. 17-N000719



Sean Brinkman, 10 West Monument Avenue, Dayton, Ohio 45402, for appellant

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for appellee



        M. POWELL, P.J.

        {¶ 1} Appellant, D.J., appeals a decision of the Warren County Court of Common

Pleas, Juvenile Division, adjudicating him a delinquent child.1

        {¶ 2} In August 2017, appellant was charged by juvenile complaint with multiple

acts that would be felony offenses if committed by an adult: three counts of rape, in violation

of R.C. 2907.02(A)(1)(b), and one count of gross sexual imposition, in violation of R.C.



1. As defined by R.C. 2152.02(C)(1), a child is a person under the age of 18.
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2907.05(A)(4). These acts were alleged to have been committed against his younger

female cousin, M.R. ("the victim"), while he and his family lived in the same house as the

victim in and around May through June 2017. The matter proceeded to an adjudication

hearing in January 2019. At the adjudication hearing, the prosecution called the victim to

testify, the investigating police officer, and the victim's mental health counselor. For the

defense, appellant testified on his own behalf and called his aunt (the victim's mother) and

younger brother to testify.

       {¶ 3} At the conclusion of the hearing, the juvenile court found that appellant had

committed each of the acts charged and adjudicated him delinquent. At the disposition

hearing, the juvenile court merged the acts charged and committed appellant into the

custody of the Ohio Department of Youth Services for an indefinite period of not less than

one year but for no longer than the time he reached his 21st birthday. The juvenile court

suspended that commitment subject to appellant's acceptance into the Butler County

Rehabilitation Center.

       {¶ 4} Appellant now appeals, raising two assignments of error for review.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} [APPELLANT] WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

       {¶ 7} In his first assignment of error, appellant argues that he received ineffective

assistance of counsel because his trial counsel failed to object to evidence of "other crimes,

wrongs, or acts" that violated Evid. R. 404(B).      The first other act evidence involved

evidence that when the victim was nine years old she watched a pornographic movie with

appellant and two other male cousins and appellant touched her along her leg and close to

her genitalia. The second other act evidence is testimony from witnesses that appellant

had engaged in around 40 other incidents of sexual activity with the victim in a three-year

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period prior to the instant acts charged.

       {¶ 8} A child has the right to counsel during proceedings against him.            R.C.

2151.352; In re Gault, 387 U.S. 1, 36-37, 87 S.Ct. 1428 (1967). The child's right to counsel

is a right to effective counsel. In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, ¶ 93, citing

McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441 (1970), fn. 14. To establish the

claim of ineffective assistance of counsel, appellant must show that (1) his trial counsel

performed deficiently, that is, performance falling below an objective standard of reasonable

representation, and (2) he suffered prejudice, that is, there is a reasonable probability that

but for counsel's errors, the result of the proceedings would have been different. State v.

Taylor, 12th Dist. Fayette No. CA2018-11-021, 2019-Ohio-3437, ¶ 16; accord In re Z.C.,

12th Dist. Warren Nos. CA2005-06-065, CA2005-06-066, CA2005-06-081, and CA2005-

06-082, 2006-Ohio-1787, ¶ 22. The failure to satisfy one prong of this test is fatal to the

ineffective assistance of counsel claim. State v. Ayers, 12th Dist. Warren Nos. CA2010-12-

119 and CA2010-12-120, 2011-Ohio-4719, ¶ 49.             On review, "[c]ounsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment." State v. Hendrix, 12th Dist. Butler No.

CA2012-05-109, 2012-Ohio-5610, ¶ 14.

       {¶ 9} Evid. R. 404(B) prohibits the use of other acts evidence to prove a character

trait to demonstrate conduct in conformity with that trait or show the defendant's propensity

to commit crime. State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, ¶ 35. However,

pursuant to Evid. R. 404(B), evidence of other crimes, wrongs, or acts may be "admissible

for other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident."

       {¶ 10} To determine whether the evidence is admissible pursuant to Evid. R. 404(B),

the Ohio Supreme Court has put forth a three-part test. The court must (1) consider the

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evidence's relevance, that is, whether it makes any fact that is of consequence to the

determination of the action more or less probable than it would be without the evidence; (2)

determine whether the evidence is presented for a legitimate purpose as provided under

Evid. R. 404(B); and (3) consider whether the probative value of the other acts evidence is

substantially outweighed by the danger of unfair prejudice. State v. Williams, 134 Ohio

St.3d 521, 2012-Ohio-5695, ¶ 20.

       {¶ 11} In this case, the other acts evidence was relevant to the instant acts charged,

was used for a legitimate purpose, and the probative value was not substantially outweighed

by the danger of unfair prejudice. Appellant's reliance on In re C.T., 8th Dist. Cuyahoga

No. 97278, 2013-Ohio-2458, is misplaced because that case found that the other acts

evidence was offered by the prosecution merely to show the defendant's propensity to

engage in the act charged. Unlike in that case, here, the evidence of appellant's prior

instances of watching a pornographic movie and engaging in a continuing course of sexual

activity with the victim was relevant to and used for the legitimate purpose of showing

appellant's opportunity, plan, and his preparation of the victim for later sexual activity, i.e.

grooming of the victim. "Grooming" refers to deliberate actions by the offender to expose a

child to sexual material thereby reducing the child's inhibitions and preparing the child for

future sexual activity. Williams at ¶ 21. This court has previously explained that actions

that tend to normalize sexual behavior are relevant to show the offender's steps to prepare

a victim for sexual activity. State v. Kaaz, 12th Dist. Clinton No. CA2016-05-010, 2017-

Ohio-5669, ¶ 45. The victim watching a pornographic movie with appellant and being

subjected to repeated incidents of sexual behavior by appellant shows the steps appellant

took to normalize sexual activity between himself and the victim and prepare her for sexual

activity with him. The "normalization" is evident in that the victim testified that while she

was initially confused by the activity, she eventually began to participate voluntarily in the

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activity and became afraid of losing appellant.2

       {¶ 12} Finally, the probative value of the other acts evidence was not substantially

outweighed by the danger of unfair prejudice.               There was a high probative value in

demonstrating that appellant had an opportunity and plan for sexual activity with the victim

and had made an effort to prepare her for it. Moreover, the adjudicatory hearing was tried

before the bench. A judge in a bench trial is presumed to have considered only relevant,

material, and competent evidence in arriving at its judgment unless it affirmatively appears

to the contrary. In re K.B., 12th Dist. Butler No. CA2006-03-077, 2007-Ohio-1647, ¶ 11;

accord In re W.H., 8th Dist. Cuyahoga No. 89327, 2008-Ohio-915, ¶ 44. Our review of the

record shows that the juvenile court did not consider the "other acts" evidence for the

impermissible purpose of propensity or conduct in conformity with a character trait.

       {¶ 13} Having determined that the complained of "other acts" evidence did not violate

Evid. R. 404(B), we find that appellant has failed to demonstrate that his trial counsel's

performance was deficient.           Accordingly, appellant's ineffective assistance claim is

meritless and his first assignment of error is overruled.

       {¶ 14} Assignment of Error No 2:

       {¶ 15} APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.

       {¶ 16} In his second assignment of error, appellant argues that his convictions were

against the manifest weight of the evidence because the victim provided inconsistent

statements about the alleged acts charged, whereas all the witnesses called by the defense

denied any sexual activity occurred, specifically appellant and his younger brother.

       {¶ 17} This court applies the same standard of review for a juvenile delinquency



2. Consent is not a defense to the acts charged because of the age of the victim. See In re D.B., 129 Ohio
St.3d 104, 2011-Ohio-2671, ¶ 27.
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manifest weight of the evidence challenge as it would for an adult criminal conviction. In re

M.J.C., 12th Dist. Butler No. CA2014-05-124, 2015-Ohio-820, ¶ 28. To determine whether

the adjudication is against the manifest weight of the evidence the reviewing court must

              look at the entire record, weigh the evidence and all reasonable
              inferences, consider the credibility of the witnesses, and
              determine whether in resolving the conflicts in the evidence, the
              trier of fact clearly lost its way and created such a manifest
              miscarriage of justice that the conviction must be reversed and
              a new trial ordered.

In re D.T.W., 12th Dist. Butler No. CA2014-09-198, 2015-Ohio-2317, ¶ 33.

       {¶ 18} Appellant was adjudicated delinquent for engaging in several acts that would

have been rape and gross sexual imposition if committed as an adult. For each of the rape

acts charged, the prosecution had to prove that appellant engaged in sexual conduct with

the victim, that the victim was not appellant's spouse, and that the victim was under the age

of 13 — regardless of the appellant's knowledge of the age. R.C. 2907.02(A)(1)(b). Sexual

conduct is defined as, among other things, fellatio, cunnilingus, 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). This court has

previously defined fellatio as when one's mouth or lips come into contact with the penis.

State v. Speakman, 12th Dist. Fayette No. CA2010-06-013, 2011-Ohio-3430, ¶ 12.

Cunnilingus is defined as the placing of one's mouth on female genitalia. State v. Lynch,

98 Ohio St.3d 514, 2003-Ohio-2284, ¶ 86. For the gross sexual imposition act charged, the

prosecution had to prove that appellant engaged in sexual contact with the victim, that the

victim was not appellant's spouse, and that the victim was under the age of 13 — regardless

of the appellant's knowledge of the age. 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, or, if the person is a female, a breast, for the purpose of


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sexually arousing or gratifying either person." R.C. 2907.01(B).

        {¶ 19} After review of the record, appellant's convictions were not against the

manifest weight of the evidence. The victim testified to two distinct events of sexual activity

around May to June of 2017 when she was 12 years old and appellant was 16 years old.

In the first instance, appellant entered the victim's bedroom while she was alone and sitting

on her bed. Appellant gave her a "passionate" kiss on the mouth and simultaneously picked

her up off the bed. After picking her up, he proceeded to "slam" her against the door and

bring her down to the floor. In the course of these actions, appellant inserted his fingers

into the victim's vagina. The victim testified that she realized penetration occurred because

she felt pressure in her vagina. Neither appellant, nor the victim spoke to each other during

this encounter. Appellant then left the bedroom. Consequently, in this instance, there was

an act that constituted both sexual contact and sexual conduct. The sexual contact became

sexual conduct when the touching turned into a penetrative act. Therefore, it was not

against the manifest weight of the evidence for the juvenile court to adjudicate appellant

delinquent for engaging in an act that constituted rape and gross sexual imposition.3

        {¶ 20} In the second instance, the victim testified that she played the game "truth or

dare" with appellant and appellant's younger brother. Appellant and his brother dared each

other to undress and run around the house naked. Both of them accepted the dare and

then performed the dare, then they dared the victim to undress and run around naked. The

victim testified that she left the room and took off her clothes, but when she returned she

used a blanket to cover herself. After this, appellant then dared the victim to "suck his ding-



3. The Ohio Supreme Court has held that the merger analysis set forth in State v. Ruff, 143 Ohio St.3d 114,
2015-Ohio-995, applies to juvenile delinquency proceedings to protect a child's right against double jeopardy.
In re A.G., 148 Ohio St.3d 118, 2016-Ohio-3306, paragraph one of the syllabus. Here, the juvenile court
merged the gross sexual imposition and rape acts in the disposition entry. Therefore, the juvenile court
properly merged appellant's adjudication for gross sexual imposition with his adjudication for rape and it is
unnecessary to differentiate the sexual conduct from sexual contact.
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a-ling." The victim initially refused, but after more demands by appellant she put her mouth

on his penis. At another point, the victim testified that appellant's brother dared appellant

to put his mouth on the victim's genitalia. Appellant proceeded to do so. Consequently, the

prosecution proved that appellant engaged in two distinct acts of sexual conduct: fellatio

and cunnilingus. Therefore, appellant's adjudication for two counts of rape was not against

the manifest weight of the evidence.

       {¶ 21} While appellant and his brother denied any sexual activity occurred between

appellant and the victim, "when conflicting evidence is presented at trial, a conviction is not

against the manifest weight of the evidence simply because the trier of fact believed the

prosecution testimony." State v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-

Ohio-6529, ¶ 17. We find that the juvenile court did not clearly lose its way in resolving

conflicts in the evidence and adjudicating appellant delinquent. Accordingly, appellant's

second assignment of error is overruled.

       {¶ 22} Judgment affirmed.


       S. POWELL, J. and RINGLAND, JJ., concur.




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