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In re D.B.

Court of Appeals of Ohio, Tenth District

March 30, 2018

In the matter of: D.B., Alleged Delinquent Minor, Appellant.

          APPEALS from the Franklin County Court of Common Pleas C.P.C. Nos. 14JU-10576, 15JU-7944, Division of Domestic Relations, Juvenile Branch

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Katherine J. Press, for appellee.

          Yeura R. Venters, Public Defender, and George M. Schumann, for appellant.

         Argued:

          Katherine J. Press.

          George M. Schumann.

          DECISION

          DORRIAN, J.

         {¶ 1} Defendant-appellant, D.B., appeals the January 3, 2017 judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, overruling his objections to a magistrate's decision adjudicating him a delinquent minor as a result of having committed the offenses of rape and gross sexual imposition. For the reasons that follow, we affirm the judgment of the trial court.

         I. Facts and Procedural History

         {¶ 2} The charges against D.B., then 15 years old, were based on conduct toward his half-sister, A.B., who was five years old at the time. Following an incident in which A.B. attempted to touch a playmate in an inappropriate way, A.B. told her grandmother that D.B. had touched her in a similar manner. A.B.'s grandmother reported these comments to her daughter, A.B.'s mother, who contacted A.B.'s pediatrician. The pediatrician referred the matter to Nationwide Children's Hospital. A.B.'s mother and her father, M.B., who was also the father of D.B., took A.B. to Nationwide Children's Hospital on July 29, 2014 to be examined and assessed. During a forensic interview conducted by a social worker, A.B. stated that D.B. touched her breasts, her vagina, and her bottom. A.B. indicated D.B. touched her breasts and vagina over her clothing and under her clothing. When asked if D.B. ever touched her vagina with "something else, " A.B. responded yes. (Jan. 4, 2016 Tr. at 47.) A.B. also answered yes when asked if she had ever seen someone's penis, but did not specifically identify whose. When asked whether someone's penis had ever touched somewhere on her body, A.B. answered "I would get away." (Jan. 4, 2016 Tr. at 53.) She answered no when the interviewer began to ask if she ever had to get away because somebody was trying to touch her with a penis. A.B. also stated that D.B. touched her breasts, her vagina, and her bottom with his mouth.

         {¶ 3} Detective Monte Nommay of the Columbus Division of Police Special Victims Bureau received a referral on A.B.'s case from Franklin County Children Services and arranged with M.B. to bring D.B. to the child advocacy center ("CAC") for an interview on July 30, 2014 ("the July 30th interview"). D.B. was accompanied to the interview by his mother and M.B. After arriving at the CAC, D.B. was given the option of whether to speak with Detective Nommay alone or in the presence of his parents. D.B. chose to speak with the detective alone. During the July 30th interview, Detective Nommay did not advise D.B. of his constitutional rights or discuss having a lawyer present. Detective Nommay told D.B. that AB. claimed some sexual conduct occurred and explained that he wanted to give D.B. an opportunity to tell his side of the story. D.B. denied having any sexual contact with A.B. At the July 30th interview, Detective Nommay discussed conducting a polygraph examination on D.B. with D.B., M.B., and D.B.'s mother. He later testified that D.B., M.B., and D.B.'s mother agreed to have D.B. participate in the polygraph examination.

         {¶ 4} The polygraph examination was conducted on August 11, 2014 at Ohio State Highway Patrol headquarters by Trooper Timothy Errington ("the August 11th polygraph examination"). D.B. was accompanied to the polygraph examination by his mother and M.B. Prior to the examination, Trooper Errington explained the polygraph examination procedure to D.B. and his parents, and presented D.B.'s parents with a parental consent form. M.B. signed the parental consent form. On the reverse side of the parental consent form was a polygraph examination release form which contained an explanation of the examinee's constitutional rights and an acknowledgment and waiver of those rights. After taking D.B. into the room where the polygraph examination would be conducted, Trooper Errington reviewed the polygraph examination release form with D.B. and asked if he had any questions. D.B. indicated he did not have any questions and signed the release form, indicating he waived his constitutional rights and agreed to participate in the polygraph examination. During the polygraph examination, D.B. admitted touching A.B.'s vagina and breasts with his hands on multiple occasions, and to touching A.B.'s vagina with his mouth on multiple occasions. D.B. also admitted trying to put his penis in A.B.'s vagina, but asserted it did not go far in.

         {¶ 5} On August 12, 2014, the day after the polygraph examination, Detective Nommay spoke with D.B. by telephone to discuss the results of the polygraph examination ("the August 12th telephone interview"). Detective Nommay did not advise D.B. of his constitutional rights during the telephone interview. During the telephone interview, which lasted less than ten minutes, D.B. admitted to touching A.B.'s breasts and vagina, and to placing his mouth on A.B.'s vagina on multiple occasions. He also admitted to attempting to put his penis in A.B.'s vagina on multiple occasions, but again asserted it did not go in very far. After speaking with D.B., Detective Nommay spoke with D.B.'s mother and explained that D.B. would receive a summons to appear in court.

         {¶ 6} On August 18, 2014, a delinquency complaint was filed, charging D.B. with two counts of rape of a child under 13 years old (case No. 14JU-10576). The first charge of the complaint in case No. 14JU-10576 alleged, that on July 1, 2014, D.B. committed rape through penile penetration of A.B., a five-year-old child. The second charge of the complaint in case No. 14JU-10576 alleged that, on July 1, 2014, D.B. committed rape through cunnilingus on A.B. Subsequently, on June 23, 2015, a second delinquency complaint was filed, charging D.B. with eight counts of rape of a child under 13 years old and four counts of gross sexual imposition, all involving A.B. (case No. 15JU-7944). The 1st and 3rd charges of the complaint in case No. 15JU-7944 alleged D.B. committed rape through oral penetration of A.B.'s vagina. The 2nd and 10th charges alleged D.B. committed rape through digital penetration of A.B.'s vagina.[1] The 4th and 5th charges alleged D.B. committed gross sexual imposition by fondling A.B.'s breasts. The 6th and 9th charges alleged D.B. committed rape through digital penetration of A.B.'s anus. The 7th and 8th charges alleged D.B. committed rape through oral penetration of A.B.'s anus. The 11th and 12th charges alleged D.B. committed gross sexual imposition through mouth contact with A.B.'s breasts. All the charges in case No. 15JU-7944 alleged the events occurred sometime between January 1 and December 31, 2014.

         {¶ 7} On August 4, 2015, a juvenile court magistrate issued a decision and entry dismissing the sixth, seventh, eighth, and ninth counts of the complaint in case No. 15JU-7944, alleging digital and oral penetration of A.B.'s anus, based on a finding that the charges were not supported by the information contained in the complaint. On September 11, 2015, D.B. filed a motion to dismiss the remaining charges, alleging lack of probable cause, lack of sufficient notice, and vindictive prosecution. That same day, D.B. filed a motion to suppress his statements to law enforcement and investigators, and any evidence obtained from those statements, alleging he did not knowingly, intelligently, and voluntarily waive his constitutional rights against self-incrimination. Plaintiff-appellee, State of Ohio, filed a memorandum in opposition to D.B.'s motion to dismiss, asserting there was no vindictive prosecution and all charges were supported by probable cause, and that the complaint was sufficient to put D.B. on notice of the charges against him. The state also filed a memorandum in opposition to D.B.'s motion to suppress, arguing no constitutional rights warning was required during D.B.'s initial interview because he was not in custody, and that his later statements either occurred after knowingly and voluntarily waiving his constitutional rights or in a non-custodial setting. The juvenile court magistrate conducted a hearing on the motion to dismiss and motion to suppress on October 14, 2015. Following the hearing, the magistrate issued a decision denying D.B.'s motion to dismiss and granting in part his motion to suppress. The magistrate ordered the evidence related to the August 11th polygraph examination be suppressed, but all other evidence and interviews would be admissible.

         {¶ 8} The state filed a motion to set aside the portion of the magistrate's order granting in part the motion to suppress. On December 11, 2015, the juvenile court issued a judgment granting the state's motion to set aside, holding the magistrate erred as a matter of law by granting in part the motion to suppress. The court found, based on the totality of the circumstances, that D.B. knowingly, intelligently, and voluntarily waived his constitutional rights at the August 11th polygraph examination, and that his statements after waiving those rights did not result from police coercion. The court further concluded D.B. was not in custody during the July 30th interview or the August 12th telephone interview; therefore, no warnings regarding D.B.'s constitutional rights were required and any statements made by D.B. during those interviews were admissible.

         {¶ 9} The juvenile court magistrate conducted a trial on the merits over several days in December 2015 and January through March 2016, ending on March 2, 2016. On April 27, 2016, the magistrate issued a decision adjudicating D.B. a delinquent minor on both charges in case No. 14JU-10576. The same day the magistrate also issued a decision in case No. 15JU-7944, adjudicating D.B. a delinquent minor on the 2nd charge (alleging rape through digital penetration of A.B.'s vagina), the 4th charge (alleging gross sexual imposition through fondling A.B.'s breasts), and the 11th charge (alleging gross sexual imposition through mouth contact with A.B.'s breasts). The magistrate dismissed the 1st and 3rd charges in case No. 15JU-7944, alleging rape through oral penetration of A.B.'s vagina, based on a finding there was no clear evidence those charges were not duplicates of the second charge in case No. 14JU-10576. The magistrate also dismissed the 5th, 10th, and 12th charges in case No. 15JU-7944, finding there was no clear evidence those charges were not duplicates of the 2nd, 4th, and 11th charges in the complaint, respectively.

         {¶ 10} On May 11, 2016, D.B. filed four objections to the magistrate's decision, asserting the magistrate erred as to the facts and law, and D.B.'s due process rights were violated. As relevant to the present appeal, D.B.'s second objection asserted he did not knowingly, intelligently, or voluntarily waive his constitutional rights during the July 30th interview, the August 11th polygraph examination, or the August 12th telephone interview. D.B. argued all of his statements should have been suppressed for lack of knowing, intelligent, and voluntary waiver of his constitutional rights. In his fourth objection, D.B. asserted his statements should have been inadmissible due to lack of corpus delicti of the charges involving penetration of A.B. with his penis.

         {¶ 11} On January 3, 2017, the juvenile court issued a judgment entry overruling D.B.'s four objections. With respect to D.B.'s second objection, the juvenile court reaffirmed its December 11, 2015 decision, which held that no constitutional rights warning was required during the July 30th interview or the August 12th telephone interview because D.B. was not in custody, and that D.B. knowingly, intelligently, and voluntarily waived his constitutional rights during the August 11th polygraph examination. With respect to D.B.'s fourth objection, the juvenile court concluded A.B.'s statements were sufficient to satisfy the corpus delicti requirement, such that D.B.'s statements admitting to penile penetration of A.B. were properly admitted at trial. The juvenile court adopted the magistrate's April 27, 2016 decisions dismissing certain charges and adjudicating D.B. a delinquent on other charges as an order of the court.

         II. Assignments of Error

         {¶ 12} Appellant appeals and assigns the following two assignments of error for our review:

[I.] The juvenile court erred in finding that the child's Miranda[2] rights waiver was voluntary.
[II.] The juvenile court erred in admitting the child's statements of penile penetration in the absence of a corpus delicti.

         III. Discussion

         {¶ 13} When objections are filed to a magistrate's decision, the juvenile court must undertake an independent de novo review of the matters objected to in order to "ascertain [whether] the magistrate has properly determined the factual issues and appropriately applied the law." Loc.R. 40(D)(4)(d) of the Franklin County Court of ...


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