Submitted May 17, 2017
from the Court of Appeals for Franklin County, No. 15AP-487,
O'Brien, Franklin County Prosecuting Attorney, and Seth
L. Gilbert, Assistant Prosecuting Attorney, for appellee.
R. Venters, Franklin County Public Defender, and David L.
Strait, Assistant Public Defender, for appellant.
S. Shah, urging reversal for amicus curiae, Juvenile Law
1} Appellant, D.S., allegedly engaged in acts of
sexual contact with another boy. Both boys were under the age
of 13. In this appeal, we consider whether the juvenile court
properly dismissed the complaint pursuant to Juv.R. 9(A)
before the delinquency case against D.S. progressed to a
formal court proceeding.
we determine that the order to dismiss was appropriate, we
reverse the judgment of the court of appeals and reinstate
the juvenile court's order dismissing the case.
and Procedural History
2} Appellee, the state of Ohio, charged D.S., then a
12-year-old, with three delinquency counts of gross sexual
imposition pursuant to R.C. 2907.05(A)(4) on November 25,
2013, for events that had allegedly occurred about five weeks
before. The alleged victim was almost ten years old at the
time. The complaint alleged in count one that D.S. engaged in
sexual contact by touching and rubbing the victim's penis
on numerous occasions. In counts two and three, the complaint
alleged that D.S. engaged in sexual contact by having anal
intercourse with and performing fellatio on the other boy.
The complaint specifically alleged that the instances of
sexual contact in counts two and three were committed by
engaging "in sexual conduct." The complaint did not
allege the use of force or the threat of force.
3} D.S. moved to dismiss the complaint on the
authority of our decision in In re D.B., 129 Ohio
St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528. The motion claimed
that R.C. 2907.05(A)(4) was unconstitutional as applied to
D.S., arguing that "[t]he court should find that the
principles established in In re D.B. apply to sexual
contact as well as sexual conduct." In support, the
motion argued that in the absence of an allegation of force
or the threat of force, there is no reasoned basis for
deciding which of two children under the age of 13 had a
purpose of sexual gratification. Finally, the motion argued
that the matter should be dismissed pursuant to Juv.R. 9(A),
in accordance with our decision in In re M.D., 38
Ohio St.3d 149, 527 N.E.2d 286 (1988). A magistrate held a
hearing on the motion and decided that it should be denied,
finding that D.B. did not require dismissal and that
the factual record had not been sufficiently developed for
dismissal to be appropriate under Juv.R. 9(A).
4} D.S. filed objections to the magistrate's
decision denying the motion to dismiss, making the same
arguments to the juvenile court. The juvenile court sustained
the objections and dismissed the case. Referring to the
allegations in the complaint, the court stated that since
"[t]hese children are quite close in age, it is
arbitrary to decide who should be charged and who should not,
given there is no threat of force or violence."
Accordingly, the court held R.C. 2907.05(A)(4)
unconstitutional as applied to D.S. The court went on to also
hold that dismissal was proper under Juv.R. 9, finding that
there are alternative methods available to provide for the
treatment needs of both children and to protect the community
as a whole without the use of formal Court action. If the
parents are not able to provide the treatment necessary, a
dependency action may be filed on behalf of the child needing
the services. The Court does not find it is in the best
interest of either child, given the facts of this case, to
continue with the prosecution of this matter.
5} The state appealed, arguing that
dismissal-whether based upon an as-applied constitutional
challenge or under Juv.R. 9(A)-was improper, because the
factual record was too limited. The state claimed that the
record should have been further developed, because the
offense of gross sexual imposition, R.C. 2907.05(A)(4),
includes a "purpose" element that provides a method
for determining which of two children under age 13 has
violated the statute. A majority of the court of appeals
agreed with the state that R.C. 2907.05(A)(4) "provides
a means of differentiating between the victim and the
offender, an attribute which distinguishes it from the
statutory rape provision at issue in In re
D.B." 2016-Ohio-2810, ¶ 16. The majority also
agreed with the state that "the trial court's
reasoning and the present record is devoid of sufficient
information" to allow a court to make a determination
under Juv.R. 9(A). Id. at ¶ 25. The dissenting
judge below would have affirmed. Viewing the facts in the
record-the relative ages of the children involved and the
lack of an allegation of force or threat of force-to be a
sufficient basis for dismissal of the complaint under Juv.R.
9(A), the dissenter would have held that the juvenile court
had not abused its discretion. Id. at ¶ 30-31
(Klatt, J., dissenting).
6} D.S. appealed. We agreed to accept jurisdiction
over the appeal, 146 Ohio St.3d 1514, 2016-Ohio-7199, 60
N.E.3d 6, which presents the following propositions of law:
1. A juvenile court's decision to utilize non-judicial
community resources in lieu of criminal prosecution is [a]
matter Juv.R. 9(A) entrusts to the discretion of the juvenile
court. That decision may not be overturned on appeal in the
absence of an abuse of discretion.
2. R.C. 2907.05(A)(4) is unconstitutional as applied to a
child under the age of 13, who allegedly engaged in sexual
contact with another child under 13.
7} We are faced with two propositions of law, only
one of which presents a constitutional query. "It is
well settled that this court will not reach constitutional
issues unless absolutely necessary." State v.
Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d
1201, ¶ 9. We should avoid reaching a constitutional
question when "other issues are apparent in the record
which will dispose of the case on its merits."
Greenhills Home Owners Corp. v. Greenhills, 5 Ohio
St.2d 207, 212, 215 N.E.2d 403 (1966). The juvenile court
gave two independent reasons for dismissing this case: (1)
the court found that it was not "in the best interest of
either child" for the case to continue, given that
Juv.R. 9(A) directs that "formal court action should be
avoided" when possible, and (2) the court found R.C.
2907.05(A)(4) unconstitutional as applied in this case.
Either reason for dismissal would be dispositive of this
matter were we to agree with the juvenile court. For that
reason, we first consider whether dismissal was proper under
8} Under Juv.R. 9(A), some-but not all-juvenile
complaints go to a "formal" delinquency proceeding.
The rule provides: "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." (Emphasis added.) As are all
the Juvenile Rules, Juv.R. 9(A) is meant to be
"liberally interpreted and construed" in order
"to provide for the care, protection, and mental and
physical development of children subject to the jurisdiction
of the juvenile court, and to protect the welfare of the
community, " Juv.R. 1(B)(3), and "to protect the
public interest by treating children as persons in need of
supervision, care and rehabilitation, " Juv.R. 1(B)(4).
Clearly, juvenile courts are vested with considerable
discretion by virtue of the language of the foregoing rules.
For that reason, we will not reverse an order to dismiss a
complaint under Juv.R. 9(A) absent an abuse of discretion. A
court abuses its discretion by taking action that lacks
reason, justification, or conscience. See Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983)
(" 'The term "abuse of discretion" * * *
implies that the court's attitude is unreasonable,
arbitrary or unconscionable' "), quoting State
v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
9} We have considered Juv.R. 9(A) only once before,
in In re M.D., 38 Ohio St.3d at 153-154, 527 N.E.2d
286. M.D. was a 12-year-old girl who allegedly caused a
five-year-old boy to rape a five-year-old girl. M.D. was
charged with one delinquency count of complicity to rape. The
other children testified in juvenile court in M.D.'s case
that "they, with M.D., were 'playing doctor, '
and that at the direction of M.D., [the boy] dropped his
pants and placed his penis in [the girl's] mouth,
ostensibly because M.D. had instructed them to take
temperature that way." Id. at 150. M.D. was
adjudicated delinquent by the juvenile court, and the court
of appeals affirmed. We reversed, holding that "to bring
such charges in juvenile court, under the instant
circumstances, is contrary to" Juv.R. 9(A) and to other
policies underlying the juvenile-court system. Id.
We relied on the language of Juv.R. 1(B) when we explained
that "[t]he best interests of the child and the welfare
and protection of the community are paramount considerations
in every juvenile proceeding in this state."
Id. at 153.
10} Our holding in M.D. necessarily
contemplated that in an appropriate case, a juvenile court
may reasonably exercise its discretion to dismiss a juvenile
complaint upon the evidence available on the face of the
complaint. We recognized that " 'the trauma which
the impending trial is causing and could cause the family is
far more serious than the alleged acts, which * * * [the
family] truly believe[s] [were] just kids playing
doctor.' " (Ellipsis and brackets sic.) Id.
at 154, quoting the motion to dismiss filed in juvenile court
by counsel for the five-year-old boy. We stated that upon the
filing of the complaint against M.D., "it reasonably
devolved on the juvenile judge to dismiss it" pursuant
to the mandates of the policies embodied in the relevant
statutes and in Juv.R. 9(A). Id.
11} Turning to the present case, we hold that the
juvenile court did not abuse its discretion by dismissing the
matter pursuant to Juv.R. 9(A). The juvenile court was aware
of the relative ages of the children involved in the charged
incidents, was aware that there was no allegation of force or
threat of force, and was aware of the general nature of the
sex acts alleged in the complaint, as developed in the record
up to that point through the parties' filings and the
transcript of the hearing held before the magistrate. The
court considered these facts, reasoning through and balancing
many of the same interests we considered in M.D. We
cannot say that the order to dismiss under Juv.R. 9(A) was an
abuse of discretion. As the state argued, a full formal court
proceeding would no doubt have developed a more detailed
factual record upon which the juvenile court might have
relied in determining the proper outcome in this case. But
that is precisely the kind of proceeding that Juv.R. 9(A)
empowers a juvenile court to avoid-a review of the details of
a sexual interaction between children under the age of 13. A
juvenile court's primary concern is not always to
determine culpability for acts that would be crimes if
committed by an adult. As we have recognized in the past,
holding a formal proceeding to determine whether a child ...