[Cite as In re C.T., 2012-Ohio-1644.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 97278




                                         IN RE: C.T.
                                        A Minor Child




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                     Case No. DL 10117417


        BEFORE: Sweeney, J., Stewart, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED:                  April 12, 2012
ATTORNEY FOR APPELLANT, C.T.

Erika Finley, Esq.
Abel & Zocolo Co., L.P.A.
815 Superior Avenue
Suite 1915
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE, STATE OF OHIO

William D. Mason
Cuyahoga County Prosecutor
By: Stephanie L. Lingle, Esq.
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, J.:
       {¶1} C.T., a minor child, appeals his adjudication of delinquency in the

Cuyahoga County Court of Common Pleas, Juvenile Division. For the reasons that

follow, we reverse and remand for a new adjudication hearing.

       {¶2} The complaint against C.T. averred that he committed rape in violation of

R.C. 2907.02(A)(2) on or about September 18, 2010, by engaging in sexual conduct with

K.W. who was not his spouse by “purposely compelling him or her to submit by the use

of force or threat of force * * *.”

       {¶3} On April 15, 2011, the state filed a Notice and Request to Use “Other Acts”

Evidence Pursuant to Evid.R. 404(B). The state sought to introduce evidence from two

other delinquency proceedings against C.T. that involved allegations of sexual

misconduct. The state argued that the other acts evidence was admissible to establish

modus operandi and to prove a lack of mistake concerning consent. The trial court

admitted this evidence during the trial over defense counsel’s objection.

       {¶4} At trial, K.W. testified that she met C.T. in the high school band. As they

traveled to a football game in different buses, K.W. initiated contact with C.T. by sending

a text message to his cell phone. K.W. indicated she and her friends were reading about

“sex and porn.” K.W. and C.T. sat near each other during portions of the football game

and then left on their separate buses where they resumed a text messaging phone

conversation. They discussed “hanging out” together that night. C.T. suggested that they
should “hang out” in K.W.’s car; to which K.W. replied, “We shall. [F]ind me.”

       {¶5} Both K.W. and C.T. testified that they met each other at a party after the

football game as planned and that K.W.’s mother was acting as a chaperone. K.W.’s

mother recalled extending her daughter’s curfew that night.

       {¶6} As C.T. was walking K.W. to her car, K.W. either agreed or offered to drive

C.T. home.1 Both said C.T. was holding K.W.’s hand as she drove. According to C.T.,

they passed a street and wound up parking in a cul-de-sac with poor lighting. According

to K.W., she initially believed C.T. lived in that area. In either case, both said they began

talking.

       {¶7} C.T. and K.W. then described a similar course of events where K.W. moved

(or was assisted by C.T.) into the passenger side of the vehicle where C.T. was sitting.

They began kissing. K.W. helped remove her sweatshirt and shirt and C.T. removed his

penis from his pants. He asked K.W. to perform oral sex, and she indicated she had never

done so before; to which C.T. responded that there was a first time for everything. K.W.

performed oral sex on C.T., and he penetrated her vaginally with his fingers.

       {¶8} K.W. testified that she told C.T. she did not want to engage in this activity

and told C.T. to stop. C.T. testified that K.W. never said anything or gave any indication



       1
        C.T. said he had a ride home with his brother who had brought him to the
party but accepted K.W.’s offer to drive him home. K.W. said that C.T. asked her for
a ride home.
to him that the activity was anything other than consensual. K.W. said she complied

because she was fearful of C.T. but admitted he did not threaten her verbally or

physically.

       {¶9} At one point, K.W. returned to the driver’s seat to check her phone. Her

mother told her she needed to come home. According to C.T., K.W. said they could

resume the sexual activity the next day. But, at C.T.’s request, she resumed performing

oral sex upon C.T. K.W. said she did this just to get it over with and get out of the

situation. C.T. wiped his hands with a tissue that he discarded out the window and onto

the street.2

       {¶10}   C.T. testified that K.W. asked him if they were dating and seemed happy

to know he was considering it. When K.W. returned home, she sent a cell phone text

message to C.T. She invited C.T. to get together the next day but he said he could not

because he was in trouble. Then, K.W. went to lunch with a friend and told her about her

sexual encounter with C.T.     Later that day, K.W. was on the bus with other band

members when another teenager, B.T., called her outside to talk. B.T. asked K.W. about

the allegations she had made against C.T. C.T. was standing nearby. C.T. denied that he

forced K.W. to do anything. At this point, K.W. called her parents to pick her up and told

her parents she had been raped by C.T.


       2
        Police recovered the tissue from that area following K.W.’s report to them.
       {¶11}     K.W. was taken to the police station and then the hospital for an

examination. As part of her statement to an examining nurse, K.W. indicated that she

was aware that C.T. had “been in trouble with girls before, but [she] didn’t want to

believe it.”

       {¶12}    More than once during her testimony, K.W. confirmed that if C.T. had

indicated to her that they were boyfriend and girlfriend, they would not be in court. On

redirect examination, however, K.W. indicated that even if C.T. had said she was his

girlfriend, she would still say she was raped by him.

       {¶13}    During C.T.’s testimony, the state inquired about accusations and charges

made against him in other cases. In one case, C.T. was found not delinquent. In another

he pled delinquent to gross sexual imposition where another female accused him of

forcing her to perform oral sex on him and accused him of digitally penetrating her.

       {¶14}    The juvenile court adjudicated C.T. delinquent and sentenced him to the

Ohio Department of Youth Services for a minimum period of twelve months and a

maximum period not to exceed the age of twenty-one.

       {¶15}    In his first assignment of error, C.T. alleges:

       {¶16}    “The trial court erred by permitting evidence of defendant’s prior

conviction to be admitted against the defendant when such conviction was unrelated to

the current charge.”

       {¶17}    In November of 2011, this court issued its en banc decision in State v.
Williams, 8th Dist. No. 94965, 2011-Ohio-5650, where the majority of the court

established guidance for when other acts evidence is admissible under the Evid.R. 404(B)

exceptions to prove “intent” or a “scheme, plan, or system.” Id. at ¶3. We note that the

juvenile court did not have the benefit of this precedent at the time of C.T.’s trial.

However, it does apply to resolving this assignment of error because the state is claiming

that the other acts evidence was admissible, in part, to prove identity also known as

“modus operandi” or a criminal’s “behavioral footprint.” Id. at ¶54.

       {¶18}     This court held that there are “only two situations in which other acts

evidence is admissible to show a defendant’s ‘scheme, plan or system’: (1) to show the

background of the alleged crime or (2) to show identity.” Id. at ¶51; see also State v.

Curry, 43 Ohio St.2d 66, 72-73, 330 N.E.2d 720 (1975). The first exception is not at

issue in this matter.

       {¶19} The state argues that C.T.’s prior delinquency case involved “activity that

was essentially identical in modus operandi proved that he had a specific method of how

he rapes young women.” This is exactly the same type of argument that was rejected in

Williams. Id. at ¶59. In Williams, the state argued that the modus operandi exception of

Evid.R. 404(B) permitted the admission of an offender’s prior conviction for sexual

offenses to prove he had a pattern of molesting teenage boys. This court found that such

evidence

       was not submitted to establish [the defendant] as the person who had
       committed the acts of sexual abuse; rather the evidence was submitted for
       the purpose of showing that [the defendant] had a character trait of
       molesting teenage boys and that he acted in conformity with his past
       behavior. The state’s argument relies on the very inferential pattern that
       Evid.R. 404(B) prohibits; evidence that [the defendant] previously molested
       a teenage boy was introduced only to compel the same inference — he did it
       before so he must have done it again.

       Id. at ¶59.

       {¶20}    Similar to the fact pattern in Williams, the alleged perpetrator’s identity in

this case was not at issue. If a crime occurred, C.T. was the one who committed it. The

exception of proving identity “does not * * * extend to other acts committed in a similar

way for an unrelated offense when identity is not at issue.” Williams at ¶54, citing, State

v. Eubank, 60 Ohio St.2d 183, 186, 398 N.E.2d 567 (1979) (other citation omitted.)

Accordingly, that exception to the rule does not justify the admission of evidence of

C.T.’s prior delinquency adjudication.

       {¶21}    The other basis that the state relies upon to defend the court’s admission

of the other acts evidence is absence of mistake or accident. That exception, however, is

totally inapplicable to the facts at issue in this case. C.T. never alleged that he was

mistaken about anything. Rather, C.T. maintained that he and K.W. were engaged in

consensual sexual activity. Conversely, K.W. said she did not consent. C.T.’s testimony

directly conflicted with K.W.’s testimony on this point. C.T. did not recall K.W. saying

anything at all about wanting to stop or not wanting to participate in the conduct. This is

different than C.T. testifying that K.W. had said no but he thought she still consented,
which clearly would implicate the issue of mistake.

       {¶22}    The testimony is clear and directly conflicting. K.W. testified that she

told C.T. to stop and that she did not want to do it. K.W. said she was afraid of C.T. and

that at one point he pushed her head down. C.T. said K.W. initiated the kissing and

voluntarily participated in further sexual activity. He made no threats, and according to

C.T., K.W. did not say or do anything to express she was an unwilling participant. There

is no mistake alleged in this record. This is simply an issue of credibility; whether K.W.’s

version of events was more credible or the account given by C.T.            Therefore, the

exception for absence of mistake or accident does not apply.

       {¶23} The state argues that even if the evidence was improperly admitted, the

judgment should be affirmed based on harmless error or by applying a presumption that

the juvenile court only considered relevant, material, and competent evidence.

       {¶24}    Because the two exceptions relied upon by the state do not support the

admission of the other acts evidence, the juvenile court erred by admitting it over the

defense objection. We find that there is a reasonable possibility that the juvenile court

considered C.T.’s prior delinquency adjudication when it resolved the conflicts in the

evidence and, therefore, we do not consider its admission harmless error. Williams,

2011-Ohio-5650, ¶62. Just as in Williams, this case hinged on the credibility of the

witnesses and the admission of other acts evidence that suggests the accused has a

propensity for engaging in the charged conduct and is unfairly prejudicial in violation of
Evid.R. 403 and 404. Id. at ¶64.

       {¶25}     Juv.R. 27(A)(3) provides in relevant part that “[t]he court shall hear and

determine all cases of children without a jury, except for the adjudication of a serious

youthful offender complaint, indictment, or information in which trial by jury has not

been waived.” The state urges us to presume that the juvenile court did not consider the

other acts evidence in arriving at its judgment because the court, not a jury, acted as trier

of fact in this case.

       {¶26}      However, when the juvenile court admits evidence over an accused

juvenile’s objection, it is counterintuitive to conclude that the juvenile court would then

proceed to disregard that same evidence as being irrelevant, immaterial, or incompetent

when rendering its judgment. If that were true, the juvenile court would have been

bound to sustain the defense objection and exclude it in the first place. See State v.

Hamilton, 77 Ohio App.3d 293, 300, 602 N.E.2d 278 (12th Dist.) (the error in admitting

evidence is “not rendered harmless simply because appellant was tried by the court and

not a jury.”) Therefore, the general presumption that only relevant, material, and

competent evidence was considered in a bench trial is inapplicable here.

       {¶27} In order to insure a fair adjudicatory hearing, this cause must be remanded

for a new hearing that excludes the inadmissible other acts evidence. The first assignment

of error is sustained.

       {¶28} The remaining assignments of error are moot. See App.R. 12(A)(1)(c).
          {¶29}    The adjudication of appellant as a delinquent is reversed and the case is

remanded to the juvenile court for further proceedings consistent with this opinion.

          {¶30}    Judgment reversed, adjudication vacated, and cause remanded.

          It is, therefore, considered that said appellant recover of said appellee his costs

herein.

          It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.



JAMES J. SWEENEY, JUDGE


MELODY J. STEWART, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
