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In re K.D.H.

Court of Appeals of Ohio, Twelfth District

June 24, 2013

IN THE MATTER OF: K.D.H.

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JV2011-1832

Michael T. Gmoser, Butler County Prosecuting Attorney, Government Services Center, for appellee

Amy Ashcraft, for appellant

OPINION

HENDRICKSON, P.J.

{¶ 1} Appellant, K.D.H., appeals from an order of the Butler County Court of Common Pleas, Juvenile Division, classifying him as a Tier II juvenile sex offender registrant. For the reasons discussed below, we affirm the juvenile court's decision.

{¶ 2} In September 2011, the Hamilton Police Department filed a complaint in the juvenile court charging appellant with rape and gross sexual imposition. The charges arose out of allegations that the 15-year-old appellant "engaged in penile vagina [sic] intercourse with [the victim], age 4" and "engaged in sexual contact with [the victim] * * * by having her touch his penis." On November 28, 2011, appellant admitted to being delinquent to a charge of gross sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree if committed by an adult. During disposition, the juvenile court ordered that appellant be placed in the Butler County Juvenile Rehabilitation Center.

{¶ 3} On July 30, 2012, a rehabilitation release hearing was held. At this hearing, the state and appellant presented arguments addressing appellant's juvenile sex offender registrant classification and his potential release from the rehabilitation center. The state recommended that appellant be classified as a Tier I sex offender while appellant's counsel recommended that appellant not be required to register as a sex offender. The parties then stipulated to the admission of several exhibits, including a July 30, 2012 Treatment Summary, a June 14, 2012 Home Pass Safety Plan, an undated Sex Offender Relapse Prevention Plan, and two sex offender classification reports prepared by Bobbie G. Hopes, Ph.D., dated January 11, 2012 and July 26, 2012, respectively.

{¶ 4} On July 30, 2012, appellant was released from the rehabilitation center and placed in the custody of his mother. Subsequently, on August 30, 2012, the juvenile court issued a decision classifying appellant as a Tier II sex offender. In making this determination, the court specifically stated that it "considered all of the factors contained in Ohio Revised Code section[s] R.C. 2152.83(D) and 2929.12."

{¶ 5} Appellant now appeals, raising as his sole assignment of error the following:

{¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF KDH WHEN IT ORDERED THAT HE REGISTER AS A TIER II SEX OFFENDER AS THE DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 7} In his sole assignment of error, appellant argues that in weighing the factors set forth in R.C. 2152.83(D), the juvenile court erred in determining that he had not shown "genuine remorse or compunction for the offense." Appellant contends that this finding is against the manifest weight of the evidence as appellant apologized to the victim's family and his family at the July 30, 2012 hearing and he expressed remorse during his second evaluation with Dr. Hopes. Appellant further contends that had the juvenile court properly considered his genuine remorse for the offense, in light of the other factors expressed in R.C. 2152.83(D), the court would not have classified him as a Tier II sex offender.

{¶ 8} The parties agree that classification of appellant as a juvenile offender registrant was not mandatory under the circumstances of this case as appellant was 15 years old at the time of the offense, did not have a prior adjudication for a sexually-oriented offense, and had not been labeled a serious youthful offender. See R.C. 2152.83(B)(1), R.C. 2152.82, and R.C. 2152.86. As classification was not mandated by statute, the juvenile court was given the broad discretion to determine whether appellant should be classified as a juvenile offender registrant and under which tier appellant should be placed. In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, ¶ 20 (which tier such an offender is placed in rests within the juvenile court's discretion); In re Q.J., 7th Dist. No. 11 BE 30, 2012-Ohio-4210, ¶ 10. See also R.C. 2950.01(E)(3), (F)(3), (G)(3); R.C. 2152.83(B)(2)(b), (C)(1).

{¶ 9} In making this determination, the juvenile court was required to conduct a hearing and consider all relevant factors, including, but not limited to: (1) the nature of the sexually-oriented offense or the child-victim oriented offense; (2) whether the offender has shown genuine remorse or compunction for the offense; (3) the public interest and safety; (4) the factors set forth in R.C. 2950.11(K);[1] (5) the relevant factors set forth in R.C. 2929.12(B) and (C);[2] and (6) the results of any treatment provided to the offender and any follow-up professional assessment. R.C. 2152.83(D)(1)-(6).

{¶ 10} Having reviewed the record, including the transcript of the July 2012 hearing and the evidence stipulated to by the parties, we find that the juvenile court did not abuse its discretion in classifying appellant as a Tier II juvenile sex offender registrant. Contrary to appellant's contentions, the juvenile court had before it sufficient evidence to allow it to conclude that appellant "ha[d] not demonstrated remorse for his ...


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