[Cite as In re M.W., 2020-Ohio-3644.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN THE MATTER OF: M.W.                      :       JUDGES:
                                            :       Hon. W. Scott Gwin, P.J.
                                            :       Hon. Patricia A. Delaney, J.
                                            :       Hon. Craig R. Baldwin, J.
                                            :
                                            :
                                            :       Case No. 2020 CA 0001
                                            :
                                            :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Licking County
                                                    Court of Common Pleas, Juvenile
                                                    Division, Case No. A2017-0751




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   July 6, 2020




APPEARANCES:

For Plaintiff-Appellant M.W.                        For Defendant-Appellee

BRADLEY P. KOFFEL                                   WILLIAM C. HAYES
Koffel, Brininger, Nesbitt                          Licking County Prosecutor
1801 Watermark Drive, Suite 350
Columbus, Ohio 43215                                By: Paula M. Sawyers
                                                    Assistant Prosecuting Attorney
                                                    20 S. Second Street, Fourth Floor
                                                    Newark, Ohio 43055
Licking County, Case No. 2020 CA 0001                                               2


Baldwin, J.

       {¶1}   Appellant M.W. appeals from the January 9, 2020 Judgment Entry of the

Licking County Court of Common Pleas, Juvenile Division. Appellee is the State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶2}   The relevant facts leading to this appeal are as follows:

       {¶3}   In early 2017, appellant, then age seventeen, briefly dated a fifteen-year-

old female (hereinafter “female victim” or “F.V.”). On one occasion during the time frame

of February-March 2017, F.V. performed oral sex on appellant while at his house.

Appellant recorded some of this conduct in video format on his iPhone. At some point

afterward, while the two were still dating, appellant told F.V. that he had sent a “buddy” a

video of the aforementioned oral sex act. See Tr. at 25-27 (adjudication testimony of F.V.).

       {¶4}   In October 2017, about seven months after appellant and F.V. broke up,

two of appellant's male classmates, C.H. and C.P., got into an argument during a

vocational class. One of these males, C.H., had also dated F.V. for a couple of months in

the fall of 2017. Appellant intervened in the argument by indicating he had something on

his phone which would make C.H. angry. After C.H. left the room, appellant showed a

portion of a video on his phone to C.P. and a bystander classmate, L.W. This video portion

included images of an erect penis and the face of F.V., albeit without showing physical

contact.

       {¶5}   School officials then came into the class to investigate. Appellant thereupon

gave the phone to another male juvenile, R.S., and asked him to delete certain recorded

images. Appellant indicated there was a video of F.V. performing oral sex on appellant
Licking County, Case No. 2020 CA 0001                                              3


and told him to delete it. R.S. instead left the phone on a bookshelf, and one of the

school's administrators secured it.

       {¶6}   On October 20, 2017, appellant was arrested. In the meantime, the phone

was provided to law enforcement officials.

       {¶7}   On October 23, 2017, a deputy from the Licking County Sheriff's Office filed

a complaint in the juvenile division alleging that appellant was a delinquent child. The

complaint listed the following counts:

       {¶8}   Count 1: Pandering sexually-oriented matter involving a minor, R.C.

2907.322(A)(1);

       {¶9}   Count 2: Disseminating matter harmful to a juvenile, R.C. 2907.31(A)(2);

Count 3: Attempted tampering with evidence, R.C. 2921.12(A)(1) and R.C. 2923.02(A).

       {¶10} The juvenile court conducted an initial hearing on October 23, 2017.

Appellant remained in detention.

       {¶11} On November 3, 2017, by agreement with the State of Ohio, the juvenile

court released appellant to reside with his father, under house arrest.

       {¶12} On January 8, 2018, the court conducted a Juv.R. 29 adjudicatory hearing.

Via a judgment entry issued that day, appellant was adjudicated delinquent with respect

to each of the above three counts.

       {¶13} On March 5, 2018, the court conducted a dispositional hearing and entered

a final judgment. Appellant was thereby committed to the Department of Youth Services

(“DYS”) for a minimum period of two years, as follows: twelve months on the pandering

count, six months on the dissemination count, and six months on the tampering count, all

consecutive to each other. The court also declared appellant a Tier II juvenile sex
Licking County, Case No. 2020 CA 0001                                            4


offender, with requirements for registration for twenty years and an in-person residence

verification every 180 days

      {¶14} On March 14, 2018, appellant filed a notice of appeal. Appellant raised the

following assignments of error on appeal:

      {¶15} “I. THE ADJUDICATION OF DELINQUENCY ON COUNT 1 IS NOT

SUPPORTED BY SUFFICIENT EVIDENCE AND IS CONTRARY TO THE MANIFEST

WEIGHT OF THE EVIDENCE.”

      {¶16} “II. THE ADJUDICATION OF DELINQUENCY ON COUNT 2 IS NOT

SUPPORTED BY SUFFICIENT EVIDENCE AND IS CONTRARY TO THE MANIFEST

WEIGHT OF THE EVIDENCE.”

      {¶17} “III. IF APPELLANT'S EXHIBITION OF THE VIDEO TO C.P. AND L.W.

WAS ‘HARMFUL TO JUVENILES’ WITHIN THE MEANING OF R.C. 2907.31(A)(2),

THEN THAT STATUTE IS UNCONSTITUTIONALLY VAGUE AND IRRATIONAL AS

APPLIED TO THE FACTS OF THIS CASE.”

      {¶18} “IV. DESPITE EVID.R. 1002, THE JUVENILE COURT ALLOWED INTO

EVIDENCE AND RELIED UPON STATEMENTS DESCRIBING THE CONTENT OF THE

VIDEO.” “V. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY

HIS COUNSEL'S FAILURE TO OBJECT, BASED UPON EVID.R. 1002, TO THE

STATEMENTS DESCRIBING THE CONTENT OF THE VIDEO.” “VI. APPELLANT WAS

DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THE AGGREGATE.”

      {¶19} “VII. THE DISPOSITIONAL ORDER CONSTITUTES AN ABUSE OF

DISCRETION.”
Licking County, Case No. 2020 CA 0001                                                    5


       {¶20} Pursuant to an Opinion filed on December 21, 2018 in In re M.W., 5th Dist.

Licking No. 2018 CA 0021, 2018-Ohio-5227, this Court affirmed the judgment of the trial

court in part and reversed and remanded the judgment in part. This Court sustained

appellant's second assignment of error and found appellant's third assignment of error to

be moot. We further found appellant's seventh assignment of error to be premature. This

Court remanded the matter for further dispositional proceedings in accordance with our

opinion and the law. This Court overruled appellant's Motion for Reconsideration and the

Ohio Supreme Court declined to accept the appeal for review. See In re M.W., 156 Ohio

St.3d 1465, 2019-Ohio-2892.

       {¶21} On March 25, 2019, the trial court conducted another dispositional hearing.

At the conclusion of the hearing, the trial court stated that it was going to “reaffirm its prior

classification of appellant as a Tier II juvenile offender registrant and that it would review

such classification in six months. Transcript at 18. The trial court also placed appellant on

non-reporting probation for a period of six months. The trial court's decision was

memorialized in a Judgment Entry filed on March 25, 2019.

       {¶22} Appellant then appealed. Pursuant to an Opinion filed on November 4,

2019, in In the Matter of M.W., 5th Dist. Licking No. 2019 CA 00020, 2019 -Ohio- 4564,

this Court reversed the judgment of the trial court and remanded the matter for further

proceedings. We found that the trial court, in the case sub judice, in classifying appellant,

did not make the findings necessary to classify the youth as a Tier II juvenile sex offender

registrant as required by R.C. 2152.83. We further found that in order to conduct a

meaningful review of the trial court's decision to classify appellant as a Tier II juvenile

offender registrant, we must be able to determine that the trial court considered all
Licking County, Case No. 2020 CA 0001                                                    6


applicable statutory factors. We concluded that the record did not contain a sufficient

rationale to permit us to perform meaningful appellate review of the classification under

an abuse-of-discretion standard, reversed the dispositional order of the trial court, and

remanded the matter to the juvenile court for re-consideration of the juvenile-offender

registrant classification, for consideration of the statutory factors sufficient to permit us to

review the classification for an abuse of discretion.

       {¶23} A dispositional hearing was held in the trial court on January 6, 2020. At the

hearing, the trial court denied appellant’s request that it find that the juvenile sex offender

registrant law is unconstitutional either on its face or as applied to the facts. The trial court

also denied appellant’s January 3, 2020 motion to dismiss the entire case pursuant to

Juv.R. 29(F)(2)(d) and Juv.R. 9.

       {¶24} As memorialized in a Judgment Entry filed on January 9, 2020, the trial court

classified appellant as a Tier I juvenile offender registrant and rejected appellant’s

arguments that classification of him as a juvenile sex offender registrant was

unconstitutional as applied to the facts of this case. The trial court also denied appellant’s

motion to dismiss. The trial court held that appellant was no longer under court

supervision.

       {¶25} Appellant now appeals, raising the following assignments of error on

appeal:

       {¶26} “I. THE TRIAL COURT DECLINED TO CONSIDER THE MERITS OF

APPELLANT’S JANUARY 3, 2020 MOTION TO DISMISS.”
Licking County, Case No. 2020 CA 0001                                                 7


       {¶27} II. THE TRIAL COURT, REJECTING APPELLANT’S CONSTITUTIONAL

ARGUMENTS,         CLASSIFIED       APPELLANT         AS     A   JUVENILE       OFFENDER

REGISTRANT.”

                                              I

       {¶28} Appellant, in his first assignment of error, argues that the trial court erred in

declining to consider the merits of his Motion to Dismiss.

       {¶29} Appellant, on January 3, 2020, filed a Motion to Dismiss pursuant to Juv. R.

29(F)(2)(d) and Juv.R. 9. Juv. R 29 states, in relevant part, as follows: “(F) Procedure

Upon Determination of the Issues. Upon the determination of the issues, the court shall

do one of the following:… (2) If the allegations of the complaint, indictment, or information

are admitted or proven, do any one of the following, unless precluded by statute:…(d)

Dismiss the complaint if dismissal is in the best interest of the child and the community.”

In turn, Juv.R. 9 states as follows: “(A) Court Action to Be Avoided. 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.”

       {¶30} A juvenile court’s decision regarding dismissal of a complaint pursuant to

either of these sections will not be reversed absent an abuse of discretion. In Re D.S..

152 Ohio St.3d 109. 2017 -Ohio- 8289. In order to find an abuse of discretion, we must

determine that the trial court's decision was unreasonable, arbitrary, or unconscionable

and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217,

450 N.E.2d 1140 (1983).

       {¶31} The trial court, in its January 9, 2020 Judgment Entry, found that the facts

of this case did not warrant dismissal. The court addressed the motion on the record and
Licking County, Case No. 2020 CA 0001                                               8


found that appellant’s adjudication had already been affirmed by this Court as to Counts

I and II and that dismissal was not appropriate.

       {¶32} In the case sub judice, appellant committed the offense when he was 17

years old and the victim was 15 years old. At the January 6, 2020 hearing, there was

evidence that appellant had a history of inappropriate aggressive behavior, a lengthy

behavioral history with school, and a history of defying authority and of acting out

inappropriately with peers in aggression. Appellant had received infractions while at DYS

for not following staff directions. The trial court also noted that appellant had shown

pornography involving a minor to two other minors. Moreover, the trial court reviewed

report from 2 psychologists and noted that appellant continued to suffer from depression

and anxiety. We concur with appellee that these facts support the trial court’s discretion

and judgment in denying the motion to dismiss the complaints after a full adjudication on

a sexually oriented offense.

       {¶33} We find that the trial court’s decision was not arbitrary, unconscionable or

unreasonable.

       {¶34} Appellant’s first assignment of error is, therefore, overruled.

                                             II

       {¶35} Appellant, in his second assignment of error, argues that the trial court erred

in rejecting his constitutional arguments and in classifying him as a juvenile sex offender

registrant.

       {¶36} Appellant initially argues that, as applied to the facts of this case, imposing

Ohio’s juvenile registration regime on him is “cruel and unusual” within the meaning of the

Eighth Amendment and the meaning of Article I, Section 9 of the Ohio Constitution.
Licking County, Case No. 2020 CA 0001                                                 9


        {¶37} A party can 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. The party contending that a statute is unconstitutional as applied

bears the burden to present clear and convincing evidence of a presently existing state

of facts that make the statute unconstitutional and void when applied to those facts. Id. at

¶ 38.

        {¶38} The Eighth Amendment to the United States Constitution states, “Excessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” “Central to the Constitution's prohibition against cruel and unusual

punishment is the ‘precept of justice that punishment for crime should be graduated and

proportioned to [the] offense.’ ” In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967

N.E.2d 729, at ¶ 25, quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544,

54 L.Ed. 793 (1910).

        {¶39} The Ohio Constitution, Article I, Section 9, contains its own prohibition

against cruel and unusual punishment. It provides unique protection for Ohioans.

        {¶40} The Ohio Constitution is a document of independent force. In the areas of

individual rights and civil liberties, the United States Constitution, where applicable to the

states, provides a floor below which state court decisions may not fall. As long as state

courts provide at least as much protection as the United States Supreme Court has

provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in

according greater civil liberties and protections to individuals and groups.
Licking County, Case No. 2020 CA 0001                                                10


       {¶41} Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993), paragraph

one of the syllabus. Thus, the Ohio Constitution, Article I, Section 9, provides protection

independent of the protection provided by the Eighth Amendment.

       {¶42} In its own jurisprudence regarding Article I, Section 9, the Ohio Supreme

Court has recognized that cases involving cruel and unusual punishments are rare,

“limited to those involving sanctions which under the circumstances would be considered

shocking to any reasonable person.” McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203

N.E.2d 334 (1964). Lack of proportionality is a key factor: “A punishment does not violate

the constitutional prohibition against cruel and unusual punishments, if it be not so greatly

disproportionate to the offense as to shock the sense of justice of the community.” State

v. Chaffin, 30 Ohio St.2d 13, 282 N.E.2d 46 (1972), paragraph three of the syllabus.

       {¶43} Appellant argues that requiring him to register as a sex offender for 10 years

is cruel and unusual punishment because he was a juvenile at the time of the offense,

because his conduct was among the least egregious forms of the offenses in this case,

because he was a first time offender and because there was evidence before the trial

court that appellant had a low risk of reoffending.

       {¶44} However, we cannot say that Ohio’s juvenile offender registration regime,

as applied to appellant, is “cruel and unusual.” Appellant, in this case, made a video of

him and the victim and showed it to other juveniles. There was evidence before the trial

court that appellant had a history of inappropriate, aggressive behavior, had a lengthy

history of behavioral issues in school and had a history of defying authority and acting out

inappropriately with peers. Appellant had received infractions while at DYS for failing to

follow staff directions and house rules.     Moreover, appellant can, pursuant to R.C.
Licking County, Case No. 2020 CA 0001                                                  11


2152.84, request declassification at the completion of his case and can, pursuant to

Section 2152.85, have his classification reviewed every three years.

       {¶45} Appellant also argues that, “as applied” to the facts of this case, the

mandatory aspect of Ohio’s juvenile offender registration regime violates the Equal

Protection clauses of the Fourteenth Amendment and Article I, Section 2 of the Ohio

Constitution. Appellant notes that classification would not have been mandatory under

R.C. 2152.83(A) (1) if he had been 15 years old at the time of the offense rather than 17

years old. Appellant also argues that, as applied, the registration regime violates due

process.

       {¶46} However, appellant has failed to meet the burden of presenting clear and

convincing evidence of a presently existing state of facts that make the statute

unconstitutional and void when applied to those facts. We concur with appellee that there

is nothing unique in this case that would set appellant apart from court rulings upholding

the constitutionality of the juvenile sex offender law. We also agree with the trial court that

there is no case law holding that the juvenile sex offender registrant law is unconstitutional

as applied to the facts herein. We note that we disagree with appellant’s assertion that

appellant’s conduct was “innocuous.”

       {¶47} We further find that the trial court did not err in classifying appellant as a

juvenile offender registrant. The trial court had broad discretion to determine whether

appellant should be classified as a Tier I, Tier II or Tier III juvenile sex offender. See In

Re C.P., supra. In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law or

judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Licking County, Case No. 2020 CA 0001                                               12


       {¶48} In addition to the facts set forth above, there was evidence that appellant

had a history of inappropriate aggressive behavior, a lengthy behavioral school history, a

history of defying authority and of acting out inappropriately with other peers in

aggression. Appellant received infractions at DYS for not following staff direction and

house rules. As noted above, the age of the victims was 15 and appellant was 17.

Appellant showed pornography involving a minor to two other minors. Based on the

forgoing, we find that the trial court’s decision to classify appellant as a Tier I offender

was not arbitrary, unconscionable or unreasonable.

       {¶49} Appellant’s second assignment of error, is, therefore, overruled.

       {¶50} Accordingly, the judgment of the Licking County Court of Common Pleas,

Juvenile Division, is affirmed.

By: Baldwin, J.

Gwin, Scott, P.J. and

Delaney, Patricia, J. concur.
