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,
O'Brien, Prosecuting Attorney, and Katherine J. Press,
R. Venters, Public Defender, and George M. Schumann, for
Katherine J. Press.
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.
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. 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
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.
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 rights waiver was voluntary.
[II.] The juvenile court erred in admitting the child's
statements of penile penetration in the absence of a corpus
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