[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re D.S., Slip Opinion No. 2017-Ohio-8289.]




                                         NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                          SLIP OPINION NO. 2017-OHIO-8289
                                        IN RE D.S.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
         may be cited as In re D.S., Slip Opinion No. 2017-Ohio-8289.]
     (No. 2016-0907—Submitted May 17, 2017—Decided October 25, 2017.)
Juvenile law—Juv.R. 9(A)—Juvenile court’s order under Juv.R. 9(A) dismissing
        delinquency complaint is reviewed for abuse of discretion—Court of
        appeals’ judgment reversed and juvenile court’s order dismissing
        complaint reinstated.
      APPEAL from the Court of Appeals for Franklin County, No. 15AP-487,
                                     2016-Ohio-2810.
                                  _________________
        O’NEILL, J.
        {¶ 1} Appellant, D.S., allegedly engaged in acts of sexual contact with
another boy. Both boys were under the age of 13. In this appeal, we consider
whether the juvenile court properly dismissed the complaint pursuant to Juv.R. 9(A)
before the delinquency case against D.S. progressed to a formal court proceeding.
                             SUPREME COURT OF OHIO




Because we determine that the order to dismiss was appropriate, we reverse the
judgment of the court of appeals and reinstate the juvenile court’s order dismissing
the case.
                          Facts and Procedural History
        {¶ 2} Appellee, the state of Ohio, charged D.S., then a 12-year-old, with
three delinquency counts of gross sexual imposition pursuant to R.C.
2907.05(A)(4) on November 25, 2013, for events that had allegedly occurred about
five weeks before. The alleged victim was almost ten years old at the time. The
complaint alleged in count one that D.S. engaged in sexual contact by touching and
rubbing the victim’s penis on numerous occasions. In counts two and three, the
complaint alleged that D.S. engaged in sexual contact by having anal intercourse
with and performing fellatio on the other boy. The complaint specifically alleged
that the instances of sexual contact in counts two and three were committed by
engaging “in sexual conduct.” The complaint did not allege the use of force or the
threat of force.
        {¶ 3} D.S. moved to dismiss the complaint on the authority of our decision
in In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528. The motion
claimed that R.C. 2907.05(A)(4) was unconstitutional as applied to D.S., arguing
that “[t]he court should find that the principles established in In re D.B. apply to
sexual contact as well as sexual conduct.” In support, the motion argued that in the
absence of an allegation of force or the threat of force, there is no reasoned basis
for deciding which of two children under the age of 13 had a purpose of sexual
gratification. Finally, the motion argued that the matter should be dismissed
pursuant to Juv.R. 9(A), in accordance with our decision in In re M.D., 38 Ohio
St.3d 149, 527 N.E.2d 286 (1988). A magistrate held a hearing on the motion and
decided that it should be denied, finding that D.B. did not require dismissal and that
the factual record had not been sufficiently developed for dismissal to be
appropriate under Juv.R. 9(A).




                                          2
                                 January Term, 2017




       {¶ 4} D.S. filed objections to the magistrate’s decision denying the motion
to dismiss, making the same arguments to the juvenile court. The juvenile court
sustained the objections and dismissed the case. Referring to the allegations in the
complaint, the court stated that since “[t]hese children are quite close in age, it is
arbitrary to decide who should be charged and who should not, given there is no
threat of force or violence.” Accordingly, the court held R.C. 2907.05(A)(4)
unconstitutional as applied to D.S. The court went on to also hold that dismissal
was proper under Juv.R. 9, finding that


       there are alternative methods available to provide for the treatment
       needs of both children and to protect the community as a whole
       without the use of formal Court action. If the parents are not able to
       provide the treatment necessary, a dependency action may be filed
       on behalf of the child needing the services. The Court does not find
       it is in the best interest of either child, given the facts of this case, to
       continue with the prosecution of this matter.


       {¶ 5} The state appealed, arguing that dismissal—whether based upon an
as-applied constitutional challenge or under Juv.R. 9(A)—was improper, because
the factual record was too limited. The state claimed that the record should have
been further developed, because the offense of gross sexual imposition, R.C.
2907.05(A)(4), includes a “purpose” element that provides a method for
determining which of two children under age 13 has violated the statute. A majority
of the court of appeals agreed with the state that R.C. 2907.05(A)(4) “provides a
means of differentiating between the victim and the offender, an attribute which
distinguishes it from the statutory rape provision at issue in In re D.B.” 2016-Ohio-
2810, ¶ 16. The majority also agreed with the state that “the trial court’s reasoning
and the present record is devoid of sufficient information” to allow a court to make




                                            3
                              SUPREME COURT OF OHIO




a determination under Juv.R. 9(A). Id. at ¶ 25. The dissenting judge below would
have affirmed. Viewing the facts in the record—the relative ages of the children
involved and the lack of an allegation of force or threat of force—to be a sufficient
basis for dismissal of the complaint under Juv.R. 9(A), the dissenter would have
held that the juvenile court had not abused its discretion. Id. at ¶ 30-31 (Klatt, J.,
dissenting).
        {¶ 6} D.S. appealed. We agreed to accept jurisdiction over the appeal, 146
Ohio St.3d 1514, 2016-Ohio-7199, 60 N.E.3d 6, which presents the following
propositions of law:


                1.     A juvenile court’s decision to utilize non-judicial
        community resources in lieu of criminal prosecution is [a] matter
        Juv.R. 9(A) entrusts to the discretion of the juvenile court. That
        decision may not be overturned on appeal in the absence of an abuse
        of discretion.
                2. R.C. 2907.05(A)(4) is unconstitutional as applied to a
        child under the age of 13, who allegedly engaged in sexual contact
        with another child under 13.


                                       Analysis
        {¶ 7} We are faced with two propositions of law, only one of which presents
a constitutional query. “It is well settled that this court will not reach constitutional
issues unless absolutely necessary.” State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-
4888, 814 N.E.2d 1201, ¶ 9. We should avoid reaching a constitutional question
when “other issues are apparent in the record which will dispose of the case on its
merits.” Greenhills Home Owners Corp. v. Greenhills, 5 Ohio St.2d 207, 212, 215
N.E.2d 403 (1966).        The juvenile court gave two independent reasons for
dismissing this case: (1) the court found that it was not “in the best interest of either




                                           4
                               January Term, 2017




child” for the case to continue, given that Juv.R. 9(A) directs that “formal court
action should be avoided” when possible, and (2) the court found R.C.
2907.05(A)(4) unconstitutional as applied in this case. Either reason for dismissal
would be dispositive of this matter were we to agree with the juvenile court. For
that reason, we first consider whether dismissal was proper under Juv.R. 9(A).
       {¶ 8} Under Juv.R. 9(A), some—but not all—juvenile complaints go to a
“formal” delinquency proceeding. The rule provides: “In all appropriate cases
formal court action should be avoided and other community resources utilized to
ameliorate situations brought to the attention of the court.” (Emphasis added.) As
are all the Juvenile Rules, Juv.R. 9(A) is meant to be “liberally interpreted and
construed” in order “to provide for the care, protection, and mental and physical
development of children subject to the jurisdiction of the juvenile court, and to
protect the welfare of the community,” Juv.R. 1(B)(3), and “to protect the public
interest by treating children as persons in need of supervision, care and
rehabilitation,” Juv.R. 1(B)(4).     Clearly, juvenile courts are vested with
considerable discretion by virtue of the language of the foregoing rules. For that
reason, we will not reverse an order to dismiss a complaint under Juv.R. 9(A) absent
an abuse of discretion. A court abuses its discretion by taking action that lacks
reason, justification, or conscience. See Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983) (“ ‘The term “abuse of discretion” * * * implies that
the court’s attitude is unreasonable, arbitrary or unconscionable’ ”), quoting State
v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
       {¶ 9} We have considered Juv.R. 9(A) only once before, in In re M.D., 38
Ohio St.3d at 153-154, 527 N.E.2d 286. M.D. was a 12-year-old girl who allegedly
caused a five-year-old boy to rape a five-year-old girl. M.D. was charged with one
delinquency count of complicity to rape. The other children testified in juvenile
court in M.D.’s case that “they, with M.D., were ‘playing doctor,’ and that at the
direction of M.D., [the boy] dropped his pants and placed his penis in [the girl’s]




                                         5
                              SUPREME COURT OF OHIO




mouth, ostensibly because M.D. had instructed them to take temperature that way.”
Id. at 150. M.D. was adjudicated delinquent by the juvenile court, and the court of
appeals affirmed. We reversed, holding that “to bring such charges in juvenile
court, under the instant circumstances, is contrary to” Juv.R. 9(A) and to other
policies underlying the juvenile-court system. Id. We relied on the language of
Juv.R. 1(B) when we explained that “[t]he best interests of the child and the welfare
and protection of the community are paramount considerations in every juvenile
proceeding in this state.” Id. at 153.
       {¶ 10} Our holding in M.D. necessarily contemplated that in an appropriate
case, a juvenile court may reasonably exercise its discretion to dismiss a juvenile
complaint upon the evidence available on the face of the complaint. We recognized
that “ ‘the trauma which the impending trial is causing and could cause the family
is far more serious than the alleged acts, which * * * [the family] truly believe[s]
[were] just kids playing doctor.’ ” (Ellipsis and brackets sic.) Id. at 154, quoting
the motion to dismiss filed in juvenile court by counsel for the five-year-old boy.
We stated that upon the filing of the complaint against M.D., “it reasonably
devolved on the juvenile judge to dismiss it” pursuant to the mandates of the
policies embodied in the relevant statutes and in Juv.R. 9(A). Id.
       {¶ 11} Turning to the present case, we hold that the juvenile court did not
abuse its discretion by dismissing the matter pursuant to Juv.R. 9(A). The juvenile
court was aware of the relative ages of the children involved in the charged
incidents, was aware that there was no allegation of force or threat of force, and
was aware of the general nature of the sex acts alleged in the complaint, as
developed in the record up to that point through the parties’ filings and the transcript
of the hearing held before the magistrate. The court considered these facts,
reasoning through and balancing many of the same interests we considered in M.D.
We cannot say that the order to dismiss under Juv.R. 9(A) was an abuse of
discretion. As the state argued, a full formal court proceeding would no doubt have




                                           6
                                   January Term, 2017




developed a more detailed factual record upon which the juvenile court might have
relied in determining the proper outcome in this case. But that is precisely the kind
of proceeding that Juv.R. 9(A) empowers a juvenile court to avoid—a review of
the details of a sexual interaction between children under the age of 13. A juvenile
court’s primary concern is not always to determine culpability for acts that would
be crimes if committed by an adult. As we have recognized in the past, holding a
formal proceeding to determine whether a child was motivated by innocent
curiosity or by culpable sexual gratification may be as bad or worse for the children
involved—and for society—as was the act itself. See M.D., 38 Ohio St.3d at 154,
527 N.E.2d 286. The juvenile court must exercise its discretion in deciding the best
course, and we owe substantial deference to the court’s decision.
       {¶ 12} We do not need to reach the constitutional question. We therefore
do not consider whether R.C. 2907.05(A)(4) is unconstitutional as applied to the
facts of this case pursuant to our decision in D.B., 129 Ohio St.3d 104, 2011-Ohio-
2671, 950 N.E.2d 528.
                                      Conclusion
       {¶ 13} Given our conclusion that the juvenile court did not act unreasonably
in the circumstances, we cannot substitute our own judgment in place of the order
of that court. Likewise, the court of appeals should not have reversed the order to
dismiss. Accordingly, we reverse the judgment of the court of appeals and reinstate
the order of the juvenile court.
                                                                Judgment reversed.
       O’CONNOR, C.J., and O’DONNELL, J., concur.
       FISCHER, J., concurs in judgment only, with an opinion.
       KENNEDY, J., dissents, with an opinion joined by FRENCH and DEWINE, JJ.
                                   _________________




                                           7
                             SUPREME COURT OF OHIO




       FISCHER, J., concurring in judgment only.
       {¶ 14} In this case, appellant, D.S., has asked us to hold that a juvenile
court’s decision to dismiss the charges against him under Juv.R. 9(A) may be
overturned only when the juvenile court has abused its discretion. I would resolve
this case by answering two narrow questions: (1) is a ruling under Juv.R. 9(A) to
dismiss charges reviewed for an abuse of discretion? The answer is yes. And (2)
did the juvenile court abuse its discretion in this case? The answer is no. Thus, I
agree with the lead opinion’s conclusions and concur in the judgment.
       {¶ 15} I do not join the lead opinion, however, because the lead opinion
uses language that could be interpreted as an expansion of the material rights of
juveniles when there is no basis in law to support such an expansion. D.S. has not
asked us to provide such a broad holding, and it is not necessary to do so in order
to decide this case.
                               _________________
       KENNEDY, J., dissenting.
       {¶ 16} Because a majority of this court fails to adhere to our fundamental
role as members of the judiciary when interpreting court rules, I dissent. When a
court rule is plain and unambiguous, we apply it as written. State ex rel. Potts v.
Comm. on Continuing Legal Edn., 93 Ohio St.3d 452, 456, 755 N.E.2d 886 (2001).
Because the language of Juv.R. 9 is plain and unambiguous and does not grant a
juvenile court authority to dismiss a formally filed charge, the juvenile court abused
its discretion in dismissing the delinquency complaint in this case.
       {¶ 17} Moreover, charging an allegedly delinquent child under the age of
13 with gross sexual imposition pursuant to R.C. 2907.05(A)(4) when the victim is
also a child under the age of 13 requires the state to prove the mens rea element that
the offender was purposely gratifying either himself or the victim. It is therefore
possible to differentiate the offender from the victim under the facts of this case,




                                          8
                                   January Term, 2017




and R.C. 2907.05(A)(4) is not unconstitutionally vague or arbitrary as applied to
appellant, D.S.
       {¶ 18} Therefore, I would affirm the judgment of the Tenth District Court
of Appeals reversing the judgment of the juvenile court and remanding the case to
that court for further proceedings.
       {¶ 19} The lead opinion paraphrases our holding in In re M.D., 38 Ohio
St.3d 149, 527 N.E.2d 286 (1988), but it then writes a new ending. According to
the lead opinion, this court in In re M.D. “stated that upon the filing of the complaint
against M.D., ‘it reasonably devolved on the juvenile judge to dismiss it’ pursuant
to the mandates of the policies embodied in the relevant statutes and in Juv.R.
9(A).” Lead opinion at ¶ 10, quoting In re M.D. at 154.
        {¶ 20} But did we really say—or even imply—in In re M.D. that the
juvenile court could have dismissed a formally filed complaint pursuant to Juv.R.
9(A)? No.
        {¶ 21} The full text of the quoted passage reads:


                  It was inappropriate that this case was filed in juvenile court.
        The case having been filed, it was reasonably devolved on the
        juvenile judge to dismiss it pursuant to the mandates of R.C.
        Chapter 2151. The failure to dismiss resulted in a denial of M.D.’s
        constitutional rights to due process under the law, * * * which should
        have been vindicated by the court of appeals.


(Emphasis added). In re M.D., 38 Ohio St.3d at 154, 527 N.E.2d 286.
        {¶ 22} So what really happened? M.D. was adjudicated a delinquent child
after the juvenile court found, beyond a reasonable doubt, each statutory element
of the crime of complicity to rape. Id. at 150, 151. In order for the juvenile court
to have adjudicated M.D. delinquent for committing complicity to rape, an actual




                                             9
                            SUPREME COURT OF OHIO




rape would had to have occurred. After a review of the statutory elements of rape
and the evidence, we concluded that no rape had been committed. Id. at 151-152.
       {¶ 23} The only proscribed act of sexual conduct that “resemble[d]” what
two five-year-olds did at M.D.’s instruction was fellatio, which this court defined
as “ ‘the practice of obtaining sexual satisfaction by oral stimulation of the
penis.’ ” Id. at 152, quoting Webster’s Third New International Dictionary 836
(1986). Because the evidence demonstrated that “[f]ellatio did not occur,” we
concluded that “no rape was committed to which [M.D.] could be an accessory.”
Id. Therefore, we recognized that “[a]djudicating a child as ‘delinquent’ under
circumstances where, as here, the child has neither committed a crime nor violated
a lawful order * * * is obviously contrary to R.C. Chapter 2151.” (Emphasis
added.) Id.
       {¶ 24} After determining that the adjudication was contrary to R.C. Chapter
2151, we went on to say that “[e]ven assuming * * * that the conduct here
technically involved a ‘rape’ ” (emphasis added), 38 Ohio St.3d at 152, 527 N.E.2d
286, if the Cuyahoga County Juvenile Court (“CCJC”) had followed its own intake
policy based on Juv.R. 9, then the case would never have been filed, id. at 152-154.
       {¶ 25} The CCJC’s intake policy relating to statutory-rape charges
involving children under the age of 13 provided, “ ‘Rape—Complaint shall be taken
and set before a JUDGE unless subject is under age 13 years, in which case matter
may be diverted.’ ” (Capitalization sic.) Id. at 153, quoting the intake policy. A
memorandum in the record of the case from the legal department of the CCJC
further emphasized the intake policy:


               “In situations where there is an allegation of sexual conduct
       involving no force and both the alleged offender and the victim are
       under 13 years of age, charges are not to be taken under the above




                                         10
                                January Term, 2017




       statute. As an alternative, the intake mediator may consider unruly
       charges on one or both children.”


Id., quoting the memorandum.
       {¶ 26} Thereafter, we stated that it was “inappropriate” that the case was
filed, but given that the case had been filed, we stated that “it reasonably devolved
on the juvenile judge to dismiss it pursuant to the mandates of R.C. Chapter 2151”
because M.D. had committed no crime. Id. at 154.
       {¶ 27} Having determined that our decision in In re M.D. did not authorize
a juvenile court to use Juv.R. 9(A) to dismiss a case after formal charges have been
filed, I turn to the language of the rule to determine what Juv.R. 9 does permit a
juvenile court to do.
       {¶ 28} “To interpret court rules, this court applies general principles of
statutory construction. * * * Therefore, we must read undefined words or phrases
in context and then construe them according to rules of grammar and common
usage.” State ex rel. Law Office of Montgomery Cty. Pub. Defender v. Rosencrans,
111 Ohio St.3d 338, 2006-Ohio-5793, 856 N.E.2d 250, ¶ 23. In determining the
intent of the rule, in addition to the language, we also review “the purpose to [be]
accomplished.” State ex rel. Hawkins v. Pickaway Cty. Bd. of Elections, 75 Ohio
St.3d 275, 277, 662 N.E.2d 17 (1996).
       {¶ 29} Along with these rules of construction, interpretation of the Juvenile
Rules requires a liberal construction to care for and protect children under the
jurisdiction of the court and to protect the community and the public interest by
“treating children as persons in need of supervision, care and rehabilitation.” Juv.R.
1(B)(3) and (4).
       {¶ 30} The full text of Juv.R. 9, which is titled “Intake,” reads:


               (A) Court action to be avoided.




                                         11
                             SUPREME COURT OF OHIO




               In all appropriate cases formal court action should be
       avoided and other community resources utilized to ameliorate
       situations brought to the attention of the court.
               (B) Screening; referral.
               Information that a child is within the court’s jurisdiction may
       be informally screened prior to the filing of a complaint to determine
       whether the filing of a complaint is in the best interest of the child
       and the public.


       {¶ 31} A plain reading of Juv.R. 9(A) establishes that if an appropriate
matter is brought to the court’s attention, other community resources can be used
in lieu of formal court action. Moreover, Juv.R. 9(B) gives the juvenile court
discretion to examine cases prior to the filing of formal charges in order to
determine whether it is in the best interest of the child and the public to permit the
filing of formal charges.
       {¶ 32} The Franklin County Court of Common Pleas, Division of Domestic
Relations and Juvenile Branch (“FCDRJB”), restates the provisions of Juv.R. 9 in
Loc.R. 19 of the Local Rules of Procedure for the Juvenile Court (“Loc.R. 19”),
available at https://drj.fccourts.org/Rules.aspx?rtype=J&rid=58&F=E (accessed
Sept. 21, 2017). Loc.R. 19 thereafter advises that in conformity with Juv.R. 9, the
court may facilitate, for “certain delinquency and unruly cases,” an informal intake
conference and diversion referral in lieu of formal action. (Emphasis added.)
Loc.R. 19 then provides that “[g]enerally, informal conferences will be available
only for first time misdemeanor charges and status offenses” and that “to be eligible
for an informal conference a youth must be willing to admit to the operative facts
to the action.” (Emphasis added.)
       {¶ 33} D.S. was charged with three delinquency counts of gross sexual
imposition pursuant to R.C. 2907.05(A)(4), which would have been felonies of the




                                          12
                                 January Term, 2017




third degree if committed by an adult. Unlike the CCJC in In re M.D., which had
an intake policy regarding allegations of rape involving children under 13 years of
age, see 38 Ohio St.3d at 153, 527 N.E.2d 286, FCDRJB’s local rules do not provide
for an informal screening process for sexual offenses. Moreover, the court’s
informal intake conferences are generally limited to situations involving “first time
misdemeanor charges and status offenses.” Loc.R. 19.
          {¶ 34} Despite the lead opinion’s conclusion that it is permissible for a
juvenile court to use Juv.R. 9 to dismiss a formal complaint, the word “dismiss”
does not appear in Juv.R. 9. While Juv.R. 1(B) requires us to liberally construe the
Juvenile Rules, that mandate does not give us the authority to rewrite Juv.R. 9,
Armstrong v. John R. Jurgensen Co., 136 Ohio St.3d 58, 2013-Ohio-2237, 990
N.E.2d 568, ¶ 13, or to simply ignore the wording of the rule or to add words to it,
State ex rel. Burrows v. Indus. Comm., 78 Ohio St.3d 78, 81, 676 N.E.2d 519
(1997).
          {¶ 35} Additional support—beyond the mere wording of the rule—that
Juv.R. 9 does not permit a juvenile court to dismiss a formally filed complaint is its
context within the Juvenile Rules. There are only two Juvenile Rules that expressly
authorize a juvenile court to dismiss a complaint. Juv.R. 34(A), which does not
apply here, permits the dismissal of an abuse, neglect, or dependency complaint
without prejudice if the dispositional hearing is not held within 90 days after the
filing of the complaint.
          {¶ 36} Juv.R. 29(F), which could apply to the present case, permits a
juvenile court to dismiss a complaint if the allegations of the complaint are not
proved, Juv.R. 29(F)(1); if the allegations are admitted or proved, the juvenile court
may nevertheless dismiss the complaint “if dismissal is in the best interest of the
child and the community,” Juv.R. 29(F)(2)(d).
          {¶ 37} A majority of this court holds that the juvenile court did not abuse
its discretion when it dismissed the complaint pursuant to Juv.R. 9. “The term




                                          13
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‘abuse of discretion’ connotes more than an error of law or of judgment; it implies
that the court’s attitude is unreasonable, arbitrary, or unconscionable.” State v.
Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980), citing Steiner v. Custer,
137 Ohio St. 448, 31 N.E.2d 855 (1940), Conner v. Conner, 170 Ohio St. 85, 162
N.E.2d 852 (1959), and Chester Twp. v. Geauga Cty. Budget Comm., 48 Ohio St.2d
372, 358 N.E.2d 610 (1976). Because the juvenile court had no authority pursuant
to Juv.R. 9 to dismiss the formal complaint, the court abused its discretion.
       {¶ 38} Having concluded that the juvenile court abused its discretion in
dismissing the complaint under Juv.R. 9, I turn to the question whether the court’s
dismissal on the basis that R.C. 2907.05(A)(4) is unconstitutionally vague and
arbitrary pursuant to our decision in In re D.B., 129 Ohio St.3d 104, 2011-Ohio-
2671, 950 N.E.2d 528, was proper.
       {¶ 39} Because the constitutionality of a statute is a legal question, a court’s
review is de novo. Crutchfield Corp. v. Testa, ___ Ohio St.3d ___, 2016-Ohio-
7760, ___ N.E.3d ___, ¶ 16. An analysis of the constitutionality of a statute begins
with a presumption of constitutionality. Burnett v. Motorists Mut. Ins. Co., 118
Ohio St.3d 493, 2008-Ohio-2751, 890 N.E.2d 307, ¶ 28. “Before a court may
declare unconstitutional an enactment of the legislative branch, ‘it must appear
beyond a reasonable doubt that the legislation and constitutional provisions are
clearly incompatible.’ ” Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-
Ohio-546, 883 N.E.2d 377, ¶ 25, quoting State ex rel. Dickman v. Defenbacher,
164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. “A party
may challenge a statute as being unconstitutional on its face or as applied to a
particular set of facts.” Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334,
836 N.E.2d 1165, ¶ 37, citing Belden v. Union Cent. Life Ins. Co., 143 Ohio St.
329, 55 N.E.2d 629 (1944), paragraph four of the syllabus. Because D.S. asserts
an “as applied” challenge, he “bears the burden of presenting clear and convincing
evidence of a presently existing state of facts that make the statute unconstitutional




                                          14
                                 January Term, 2017




and void when applied to those facts.” Id. at ¶ 38, citing Belden at paragraph six of
the syllabus. More specifically, D.S. must prove by clear and convincing evidence
that it is unconstitutional to charge a child under the age of 13 with gross sexual
imposition under R.C. 2907.05(A)(4) when the victim is also under the age of 13.
       {¶ 40} In In re D.B., the state charged a 12-year-old child with raping an
11-year-old child under R.C. 2907.02(A)(1)(b), which prohibits engaging in
“sexual conduct” with a minor under the age of 13, “whether or not the offender
knows the age of” the victim. 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d
528, at ¶ 2, 8. “ ‘Sexual conduct’ means vaginal intercourse between a male and
female [and] anal intercourse, fellatio, and cunnilingus between persons regardless
of sex * * *.” R.C. 2907.01(A). Notably, there is no mens rea element for the state
to prove under R.C. 2907.02(A)(1)(b), because it “criminalizes what is commonly
known as ‘statutory rape’ ” and “holds offenders strictly liable for engaging in
sexual conduct with children under the age of 13.” In re D.B. at ¶ 13.
       {¶ 41} In In re D.B., the juvenile court had adjudicated D.B. delinquent for
committing statutory rape, and the court of appeals had affirmed the judgment of
the juvenile court. We accepted D.B.’s appeal challenging the constitutionality of
applying R.C. 2907.02(A)(1)(b) to a child under the age of 13 when the victim is
also under the age of 13 as violating D.B.’s rights to due process and equal
protection under the Ohio and United States Constitutions. In re D.B. at ¶ 11. We
agreed with D.B. that the statute was unconstitutional as applied to him.
       {¶ 42} First, we held that charging D.B. with statutory rape violated his
right to due process:


               As applied to children under the age of the 13 who engage
       in 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




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       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.


(Emphasis added.) In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d
528, at ¶ 24.
       {¶ 43} This court noted that its holding will not apply when rape charges
are brought under other subsections of R.C. 2907.02(A) and additional elements
are present, such as when the other person’s ability to resist or consent was impaired
or when the offender used force. Id. at ¶ 28.
       {¶ 44} This court also held that application of R.C. 2907.02(A)(1)(b)
violated D.B.’s right to equal protection:


       R.C. 2907.02(A)(1)(b) offers no prosecutorial exception to charging
       an offense when every party involved in the sexual conduct is under
       the age of 13; conceivably, the principle of equal protection suggests
       that both parties could be prosecuted as identically situated.
       Because D.B. and [the other child] were both under the age of 13 at
       the time the events in this case occurred, they were both members of
       the class protected by the statute, and both could have been charged
       under the offense.


(Emphasis added.) Id. at ¶ 30.
       {¶ 45} Accordingly, this court held that charging a juvenile offender with
statutory rape under R.C. 2907.02(A)(1)(b) when both the offender and the victim




                                          16
                                January Term, 2017




are under the age of 13 is unconstitutional because there is no way to distinguish
between the offender and the victim. Id. at ¶ 32.
        {¶ 46} Because D.B. and the alleged victim were both under the age of 13,
we reversed the juvenile court’s judgment that adjudicated D.B. delinquent. 129
Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528, at ¶ 1.
        {¶ 47} D.S. argues that gross sexual imposition under R.C. 2907.05(A)(4)
is analogous to the statutory-rape offense under R.C. 2907.02(A)(1)(b) at issue in
In re D.B. and that In re D.B.’s holding of unconstitutionality therefore extends to
a case like this one in which the state charges a juvenile with gross sexual
imposition under R.C. 2907.05(A)(4) and both the offender and the victim are under
the age of 13. I would hold that statutory rape is distinguishable from gross sexual
imposition under R.C. 2907.05(A)(4) and therefore that In re D.B. does not apply
here.
        {¶ 48} Unlike the statutory-rape charge at issue in In re D.B., which is a
strict-liability offense, gross sexual imposition under R.C. 2907.05(A)(4) requires
the state to prove “sexual contact,” which includes the mens rea element of
purposely “arousing or gratifying either person,” R.C. 2907.01(B). State v. Dunlap,
129 Ohio St.3d 461, 2011-Ohio-4111, 953 N.E.2d 816, ¶ 23. This distinction is
meaningful in examining D.S.’s argument because courts have recognized that the
“purpose” mens rea element supplied by R.C. 2907.01(B) for the offense of gross
sexual imposition under R.C. 2907.05(A)(4) provides a way to distinguish which
child is the offender when both the offender and the victim are children under the
age of 13. See In re T.A., 2d Dist. Champaign Nos. 2011-CA-28 and 2011-CA-35,
2012-Ohio-3174, ¶ 26; In re K.A., 8th Dist. Cuyahoga Nos. 98924 and 99144, 2013-
Ohio-2997, ¶ 11; In re K.C., lst Dist. Hamilton No. C-140307, 2015-Ohio-1613,
¶ 13.
        {¶ 49} Therefore, I would hold, based on the facts of this case, that when
the state charges an allegedly delinquent child under the age of 13 with gross sexual




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imposition under R.C. 2907.05(A)(4) and the victim is also under the age of 13, the
charge is not unconstitutionally vague or arbitrary as applied because the mens rea
element of the offense, requiring proof that the offender was purposely attempting
to gratify the offender or the victim, makes it possible to distinguish the offender
from the victim. While the mens rea element of R.C. 2907.05(A)(4) makes it
possible to distinguish the offender from the victim when both are under the age of
13, evidence of mens rea (that the offender purposely sought to gratify the offender
or the victim) is necessary to actually identify the offender, and the failure of the
state to prove the mens rea element beyond a reasonable doubt would mean that the
prosecution of that charge would fail.
       {¶ 50} Our guiding principle that the Juvenile Rules should be liberally
construed to care for and protect children under the jurisdiction of the juvenile court
does not embrace an exercise of judicial activism. Juv.R. 9 affords juvenile courts
wide latitude in establishing intake policies and procedures to screen out
appropriate cases prior to the filing of a formal complaint when the best interest of
the child and the public would be served. By adding the word “dismiss” to Juv.R.
9 and ignoring its context within the Juvenile Rules, a majority of this court has
exceeded our proper judicial role and unwisely rewritten Juv.R. 9, thereby
empowering juvenile courts—seemingly at will—to dismiss formal complaints
without the fully developed record that Juv.R. 29(F)(2)(d) requires. In the coming
years, the unintended consequences of today’s decision will become apparent.
       {¶ 51} For all the foregoing reasons, I would affirm the judgment of the
court of appeals, which reversed the judgment of the juvenile court and remanded
the matter for further proceedings. Therefore, I dissent.
       FRENCH and DEWINE, JJ., concur in the foregoing opinion.
                                _________________
       Ron O’Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert,
Assistant Prosecuting Attorney, for appellee.




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                               January Term, 2017




       Yeura R. Venters, Franklin County Public Defender, and David L. Strait,
Assistant Public Defender, for appellant.
       Riya S. Shah, urging reversal for amicus curiae, Juvenile Law Center.
                              _________________




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