[Cite as In re V.H., 2013-Ohio-5408.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

IN RE: V.H.                                           C.A. No.        26894



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE No.   DL11-08-1880

                                 DECISION AND JOURNAL ENTRY

Dated: December 11, 2013



        HENSAL, Judge.

        {¶1}     Appellant, V.H., appeals from a judgment of the Summit County Court of

Common Pleas, Juvenile Division that adjudicated him a delinquent child for committing one

count of gross sexual imposition in violation of Revised Code Section 2907.05(A)(4). For the

following reasons, this Court affirms.

                                                  I

        {¶2}     In June 2011, J.S., then seven years old, was staying at his maternal grandfather’s

home in Akron. He and his mother had moved in one month earlier. Also residing in the home

were J.S.’s uncle, his grandfather, the grandfather’s girlfriend, and the girlfriend’s three children,

which included V.H. V.H., who was then 13 years old, and J.S. shared a bedroom that was on

the same floor as a bedroom occupied by J.S.’s mother. The boys each had their own bed.

V.H.’s sisters also shared a different bedroom on the same floor, while J.S.’s grandfather and

V.H.’s mother shared a bedroom that was located upstairs in the attic.
                                                  2


       {¶3}    J.S.’s mother testified at the adjudication hearing that her then-boyfriend was with

her in her bedroom when he got up to use the restroom that was located down the hall. When he

came back to their room, he told J.S.’s mother that he noticed a light on in the boys’ bedroom.

Because J.S. and V.H. were supposed to be asleep, J.S.’s mother got up to investigate. When she

opened the door to the boys’ bedroom, she observed both boys with their pants and underwear

pulled own below their buttocks. According to J.S.’s mother, J.S. was lying on his stomach part

way on his bed and V.H. was on top of him. Although she could not tell if V.H.’s penis was

erect, J.S.’s mother testified that V.H. was attempting to anally penetrate J.S.

       {¶4}    J.S.’s mother instructed both boys to get up and go to the attic with her to speak

with her father about what she observed. After she relayed to her father and V.H.’s mother what

she saw, J.S.’s mother took him downstairs to her bedroom while V.H. remained upstairs and

was “whooped” with a belt as punishment. V.H. was sent back to his room, while J.S. spent the

night with his mother and her boyfriend in their room.

       {¶5}    J.S.’s mother took him to Akron Children’s Hospital the next day where he was

interviewed by a social worker from the CARE (Children at Risk Evaluation) team and

medically evaluated. J.S. told the interviewer that V.H. “put [his] middle private part all the way

up in my butt.” When asked what he meant by “middle part,” J.S. told the interviewer it was a

“pee-pee.” J.S. relayed to the interviewer that V.H. told him not to tell anyone. According to

J.S., he wanted to tell someone but was scared and thought his mother would not believe him.

The medical examination did not reveal any physical injury.

       {¶6}    A complaint was filed against V.H. that alleged he was a delinquent child by

reason of committing an attempted rape, “in violation of * * * [R.C.] 2907.02(A)(1)(b)/2923.02,”

a felony of the second degree if committed by an adult. V.H. denied the charges, and the matter
                                                3


proceeded to an adjudication hearing. A magistrate found him delinquent for committing an

attempted rape, but he was granted a new adjudication hearing when the trial court sustained his

objections to the magistrate’s decision. The case proceeded to a second adjudication hearing

wherein V.H. was found delinquent for committing the lesser included offense of gross sexual

imposition, a violation of R.C. 2907.05(A)(4), which is a felony of the third degree if committed

by an adult. The trial court found the statements J.S. made during his CARE team interview

about V.H.’s penetration “to be less than credible” as he indicated in the interview he was asleep

at the time of the incident and had no memory of the incident when he testified at trial. The trial

court further found that “[J.S.’s] statements relating to penetration or attempted penetration were

recounts of what he heard his Mother speaking of as opposed to his personal memory.”

       {¶7}    The trial court entered dispositional orders, which are stayed pending resolution

of his appeal. V.H. raises two assignments of error for this Court’s review. For ease of analysis,

we rearrange V.H.’s assignments of error.

                                                II

                                 ASSIGNMENT OF ERROR II

       THE INSUFFICIENT EVIDENCE IN APPELLANT V.H.’S DELINQUENCY
       VIOLATED OF (SIC) SECTION 16, ARTICLE I OF THE OHIO
       CONSTITUTION, INFRINGING ON APPELLANT V.H.’S DUE PROCESS
       RIGHT.

       {¶8}    In his second assignment of error, V.H. argues that the evidence was insufficient

to adjudicate him a delinquent child for having committed gross sexual imposition. This Court

disagrees.

       {¶9}    “Although juvenile delinquency cases are technically civil in nature, this Court

applies the same sufficiency and manifest weight standards of review in a juvenile delinquency

case that it applies in an adult criminal appeal due to the ‘inherently criminal aspects’ of
                                                 4


delinquency proceedings * * *.” In re L.F., 9th Dist. Lorain No. 10CA09880, 2012-Ohio-302, ¶

6, quoting In re R.D.U., 9th Dist. Summit No. 24225, 2008-Ohio-6131, ¶ 6. “Whether the

evidence is legally sufficient to sustain [an adjudication of delinquency] is a question of law”

that this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support [an adjudication of delinquency] 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. 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.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “The test for sufficiency

requires a determination of whether the State has met its burden of production at trial.” State v.

Collmar, 9th Dist. Summit No. 26496, 2013–Ohio–1766, ¶ 7.

       {¶10} V.H. was adjudicated a delinquent child for violating one count of Revised Code

Section 2907.05(A)(4), which provides that: “No person shall have sexual contact with another,

not the spouse of the offender * * * when * * * [t]he other person * * * is less than thirteen years

of age * * *.” “‘Sexual contact’ means any touching of an erogenous zone of another, including

* * * the * * * buttock * * * for the purpose of sexually arousing or gratifying either person.”

R.C. 2907.01(B).

       {¶11} The Ohio Supreme Court has held that “the element of sexual contact in an R.C.

2907.05(A)(4) violation requires a mens rea of purpose.” State v. Dunlap, 129 Ohio St.3d 461,

2011-Ohio-4111, ¶ 28. “The statute requires a specific intent behind the touching—the touching

must be intended to achieve sexual arousal or gratification. Since there is a specific intent

motivating the touching, it follows that the act of touching must be intentional.” Id. at ¶ 25.
                                                 5


       {¶12} “In the absence of direct testimony regarding sexual arousal or gratification, the

trier of fact may infer a purpose of sexual arousal or gratification from the type, nature and

circumstances of the contact, along with the personality of the defendant.” State v. Edwards, 9th

Dist. Lorain No. 12CA010274, 2013-Ohio-3068, ¶ 10, quoting State v. Antoline, 9th Dist. Lorain

No. 02CA008100, 2003-Ohio-1130, ¶ 64; In re L.F., 2012-Ohio-302 at ¶ 10, quoting State v.

Cobb, 81 Ohio App.3d 179, 185 (9th Dist.1991). V.H. argues that the evidence did not establish

that he engaged in sexual contact with J.S. as the State did not prove that the contact was done

for the “purpose of sexual arousal or gratification.”

       {¶13} The State presented the testimony of several witnesses, including the victim’s

mother. She testified that, when she entered the room, V.H. was on top of J.S., who was lying on

his stomach halfway on his bed. Both boys had their pants and underwear down past their

buttocks. According to J.S.’s mother, V.H. was “trying to penetrate [J.S.] * * * [i]n his butt * * *

[with] [h]is penis.” She could not tell if V.H. had an erection.

       {¶14} V.H. maintains that the State failed to set forth evidence of his maturity or

knowledge of sexual behaviors from which the trial court could infer that he engaged in the

conduct for the purpose of sexual arousal or gratification. He fails to cite to any Ohio case law

that requires the prosecution to produce evidence of a minor defendant’s maturity or knowledge

of sexual behaviors in order to prove that the sexual act was done for his or her sexual arousal or

gratification. In this case, a rational trier of fact could reasonably infer V.H.’s sexual arousal or

gratification from the “totality of the acts themselves” based on the testimony from J.S.’s mother

in which she stated that his penis made contact with J.S.’s buttocks. In re L.F., 2012-Ohio-302

at ¶ 11. Accordingly, V.H.’s adjudication of delinquency for committing one count of gross
                                                 6


sexual imposition was supported by sufficient evidence. His second assignment of error is

overruled.

                                  ASSIGNMENT OF ERROR I

       APPELLANT V.H.’S DELINQUENCY FOR GROSS SEXUAL IMPOSITION
       WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN
       VIOLATION OF SECTION 3, ARTICLE IV OF THE OHIO CONSTITUTION,
       CREATING A MISCARRIAGE OF JUSTICE.

       {¶15} V.H. argues that his delinquency adjudication was against the manifest weight of

the evidence. This Court disagrees.

       {¶16} To determine whether V.H.’s convictions are against the manifest weight of the

evidence, this Court:

       must review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving conflicts
       in 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.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

Thompkins, 78 Ohio St.3d at 387. “When a court of appeals reverses a judgment of a trial court

on the basis that the [judgment] is against the manifest weight of the evidence, the appellate

court sits as a ‘thirteenth juror’ and disagrees with the factfinder's resolution of the conflicting

testimony.” Id. “The discretionary power to grant a new trial should be exercised only in

exceptional cases where the evidence weighs heavily against the conviction.” Otten at 340.

       {¶17} V.H. maintains that his delinquency adjudication is against the manifest weight of

the evidence because the testimony of J.S.’s mother was “self-serving, unreliable and

contradicted.” He contends J.S.’s mother fabricated the incident as a way to get V.H. and his
                                                7


family out of the house so as to have an unhindered relationship with her father and to allow J.S.

to have his own room.

       {¶18} J.S.’s mother testified that she had a close relationship with her father both before

and after his relationship with V.H.’s mother. Her father assisted her financially “all the time.”

She did not feel as if V.H.’s mother impeded her relationship with her father. J.S.’s mother

testified that she would have preferred to have her own home because she was 25 years old and

able to care for herself. According to J.S.’s mother, it was important to her that J.S. had his own

bedroom.

       {¶19} V.H.’s mother testified that her relationship with J.S.’s mother was “[o]ff and on.

Basically, everything was good as long as she got what she wanted. If she didn’t get it, * * * it’s

like a back-off situation or try and find another way to get what she wanted.” There was no

testimony presented as to the nature of the relationship of the women at the time the incident

occurred.

       {¶20} V.H. argues that the testimony of J.S.’s mother was contradicted by testimony

from defense witnesses. V.H.’s mother testified that after her son was punished, he was sent

back downstairs to his bedroom. As V.H. was proceeding downstairs, J.S. and his mother were

walking upstairs to the attic. According to V.H.’s mother, she saw the victim smile at her son as

they passed on the landing. Later that same evening, she observed J.S.’s mother and her

boyfriend in their bedroom watching a movie, smoking, joking, and laughing. J.S.’s mother

admitted that she did not contact the police or take her son to a hospital that night. V.H. argues

that her behavior is not indicative of someone whose father described her as “hysterical” and

crying when she brought the boys up to the attic to tell him what she saw.
                                                8


       {¶21} V.H.’s younger sister, who was 12 years old at the time of the trial, testified that

she had a bedtime routine of going into her brother’s room after their mother at the end of the

night. V.H.’s sister testified that on the night of the incident, when she entered the boys’

bedroom, the light was off. She turned it on while she talked to her brother. According to

V.H.’s sister, she shut the light off when she left and closed the door behind her. On the way to

her bedroom, she passed J.S.’s mother, who was standing by her bedroom door, in the hallway.

She testified that because her bedroom door was open, she could see J.S.’s mother in the hallway

by her own bedroom door. V.H.’s sister testified that J.S.’s mother stood by the door no more

than a minute. J.S.’s mother then yelled for the boys, went into her bedroom to put on a shirt,

and then yelled out to her father and V.H.’s mother. Like her mother, V.H.’s sister also testified

that she saw J.S. smile at her brother as he and his mother were going up to the attic after V.H.

was disciplined.

       {¶22} In addition, V.H.’s sister testified that, when she passed J.S.’s mother in the

hallway, she was not wearing her glasses. J.S.’s mother testified that she only takes her glasses

off when she goes to bed. She stated that she cannot see more than three feet in front of her

without her glasses. According to J.S.’s mother, there was “no question in [her] mind” that she

had her glasses on when she went into the boys’ bedroom.

       {¶23} V.H. also called the victim, who was then 9 years old, as a witness as upon cross-

examination. At the time of trial, which was over 19 months after the incident, J.S. could not

recall anything about the day in question. He could not positively identify V.H. at trial. V.H.

argues that the victim’s inability to remember the incident shows that his mother made up the

incident.
                                                 9


       {¶24} This Court cannot conclude that, based on the evidence in the record, this is the

“exceptional case” where the evidence weighed heavily against V.H.’s delinquency adjudication.

“[A] [trier of fact] is free to believe or reject the testimony of each witness, and issues of

credibility are primarily reserved for the trier of fact.” State v. Miles, 9th Dist. Summit No.

26187, 2012-Ohio-2607, ¶ 24, quoting State v. Rice, 9th Dist. Summit No. 26116, 2012-Ohio-

2174, ¶ 35. “A conviction is not against the manifest weight of the evidence because the [trier of

fact] chose to credit the State’s version of events.” State v. Minor, 9th Dist. Summit No. 26362,

2013-Ohio-558, ¶ 28, quoting State v. Breneman, 9th Dist. Wayne No. 11CA0039, 2012-Ohio-

3632, ¶ 9. After reviewing the testimony of the two mothers, this Court cannot conclude that the

evidence supports V.H.’s theory that J.S.’s mother formulated a scheme to get V.H. and his

family out of the home. While the testimony of V.H.’s sister contradicted that of J.S.’s mother

on whether she was wearing her glasses and whether she entered the room before calling the

boys to go upstairs, the trial court did not create a “manifest miscarriage of justice” when it

credited the testimony of J.S.’s mother over that of V.H.’s sister. Otten, 33 Ohio App.3d at 340.

Based on a careful review of the record, this Court cannot conclude that this is the “exceptional

cas[e]” wherein the trial court lost its way and that V.H.’s adjudication as a delinquent child for

committing gross sexual imposition is against the manifest weight of the evidence.              Id.

Accordingly, his first assignment of error is overruled.

                                                III.

       {¶25} V.H.’s first and second assignments of error are overruled. The judgment of the

Summit County Court of Common Pleas, Juvenile Division is affirmed.

                                                                               Judgment affirmed.
                                                10




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



MOORE, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

LORI A. CURD, Appellate Review Office, School of Law, The University of Akron, for
Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
