In Re Felton , 124 Ohio App. 3d 500 ( 1997 )

I respectfully dissent. The allegations of inappropriate behavior on the part of the juvenile appellant in this case may have warranted some internal discipline within the school system. They were not established in accordance with the standards required of a criminal prosecution in a court of law. In particular, the failure of the victim to testify, the equivocal and hearsay nature of the testimony that was submitted at trial, and the substantive amendment of the charge by the court at the conclusion of the trial all constitute disturbing features underlying this adjudication.

The case arises from the following factual background. On October 19, 1995, the St. Mary's Police Department received a phone call from the assistant principal at the local high school. The assistant principal stated that he was investigating a sexual assault matter and wished to have an officer present. An officer was dispatched to the school.

The matter under investigation was a report from a fifteen-year-old student that defendant had grabbed her breast with the palm of his hand during the change of classes. The student related her experience first to the assistant principal and thereafter to the officer. Next, the assistant principal and officer together spoke with defendant about the incident. In this conversation, defendant initially admitted grabbing the student but, after additional questioning, modified his recollection of the events to say that he was pointing toward the girl's chest and the touching was only a poke with his finger.

On November 29, 1995, the defendant was charged with delinquency by sexual imposition in violation of R.C. 2907.06 (A)(1), a third-degree misdemeanor if committed by an adult. Defendant entered a denial to the charge, and on April 11, 1996, the matter went to trial on that charge. Testimony was taken from four persons. As noted earlier, the victim did not appear. The only person who testified as to witnessing this incident was a classmate of the victim. However, this person's testimony was effectively discredited in a number of ways, as to her opportunity to accurately observe the incident and the inherent hearsay nature of her testimony as to the alleged reactions of the victim, and by the witness's own prior inconsistent statements.

The court issued its adjudication on May 15, 1996. In its opinion, the court held that in the absence of the victim's testimony, the charge of sexual imposition was not proven beyond a reasonable doubt. On the other hand, pursuant to posttrial briefs submitted by the parties, defendant was adjudicated to be an unruly child pursuant to R.C. 2151.022 (C).

A violation of R.C. 2907.06 (A)(1) requires proof of sexual contact with another who is not the spouse of the offender, when such contact is offensive to the other person or the offender is reckless in that regard. A child is adjudicated unruly pursuant to R.C. 2151.022 (C), which defines an unruly child as including "any child * * * [w]ho so deports himself as to injure or endanger the health or morals of himself or others."

Traditionally, unruliness has been viewed as a "status offense," meaning that a child has committed noncriminal harm for which rehabilitation, rather than punishment, is appropriate. However, in contrast to other so-called status offenses such as dependency and neglect, the unruliness statute applies to violative conduct in which the juvenile has personally engaged, such as not submitting to the control of authority figures, being habitually truant, acting in ways to injure health or morals, and associating with "vagrant, vicious, criminal, notorious, or immoral persons." R.C. 2151.022 (A), (B), (C), and (E). Thus, the Revised Code and Juvenile Rules require a standard of proof beyond a reasonable doubt in the adjudication of an unruliness charge. R.C. 2151.35 (A) and Juv.R. 29 (E)(4). Case law also supports the position that unruliness proceedings are governed by the reasonable doubt standard. See, e.g., State v. Aller (1992),82 Ohio App.3d 9, 13. 610 N.E.2d 1170, 1172; In re Cooper (Sept. 22, 1989), Seneca App. No. 13-88-34, unreported, 1989 WL 108730;State v. Clark (June 15, 1987), Clinton App. No. CA 86-11-022, unreported, 1987 WL 12733. Accordingly, the standard of review for an unruliness case is that articulated in State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus:

"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."

The foregoing authority also implies that procedural issues involving notice, the application of Juv.R. 22, and the determination of lesser included offenses must be regarded no differently in cases of unruliness than in delinquency cases. In any event, there is no authority for the proposition that simply because of its history as a so-called status offense, an unruliness charge is always available to the juvenile court as a backup or catchall charge to any failed delinquency offense. Moreover, there is no indication that the unruliness charge in this case would qualify as a lesser included offense of the sexual imposition offense under any permissible analysis of the elements of those offenses. See State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294; State v. Johnson (1988), 36 Ohio St.3d 224, 522 N.E.2d 1082.

In short, the post-trial amendment of this charge gave the defendant no notice of the offense of which he was ultimately convicted. Contrary to the majority opinion, the issue of notice has nothing to do with whether the prosecution's evidence remains intact. In this case, the lack of consent and the offensive nature of the conduct to the absent victim were key elements of the sexual-imposition charge upon which the defense successfully focused, winning acquittal on the failure of proof in those areas. Had the amendment in this case occurred even during trial, the defense might have had the opportunity to address similar issues involving the elements of health or morals, concerning which there is no evidence in this record beyond the presumptions of all concerned. In any event, this opportunity is fundamental to our entire criminal justice system, including juvenile court, and was not afforded in this case. The adjudication should be reversed.