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In re C.B.

Court of Appeals of Ohio, Fifth District, Ashland

December 5, 2019


          Appeal from the Ashland County Court of Common Pleas, Juvenile Court Division, Case No. 20142293

          For Plaintiff-Appellee CHRISTOPHER R. TUNNELL Ashland County Prosecuting Attorney By: COLE F. OBERLI Assistant Prosecuting Attorney

          For Defendant-Appellant ABIGAIL CHRISTOPHER

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.


          BALDWIN, J.

         {¶1} C.B. appeals the Ashland County Common Pleas Court, Juvenile Division's decision to classify him as a Tier II Sex Offender. Appellee is the State of Ohio.


         {¶2} This matter was before this court in In re C.B., 5th Dist. Ashland No. 15-COA-027, 2016-Ohio-4779, and while we remanded the case for redetermination of Appellant's Juvenile Offender Registration status, the facts remain unchanged, so we restate the facts and the case as described within that case.

         {¶3} On October 23, 2014, E.O., a nine year-old student in Ashland City Schools, met with Officer Kim Mager of the Ashland Police Department. Kris Manley, a Principal in the Ashland City School District, called the Ashland Police Department to report E.O. alleged she had been the victim of repeated sexual assaults by two neighbors, C.B., and his brother, M.B.

         E.O. Interview with Detective Mager

         {¶4} Detective Mager first interviewed E.O. on October 23, 2014, when she was in the fourth grade. E.O. understood the purpose of the interview was to discuss her neighbors, C.B. and M.B.

         {¶5} E.O. informed Officer Mager M.B., her fifteen year old neighbor, touched her vaginal area, which she referred to as her "bottom." E.O. told Officer Mager M.B. and his brother, C.B., touched her vaginal area behind the shed at the rear of M.B.'s residence. E.O. related both M.B. and C.B. inserted their fingers inside her vagina on numerous occasions. E.O. said M.B. digitally penetrated her "five to ten times ... I'm not sure, but he does it a lot." She said the incidents with M.B. almost always ended with his fingers inside her vagina. She said the incidents always occurred behind the shed.

         {¶6} E.O. estimated the incidents began in first grade, about three years prior, putting her at age six. She averred M.B. and C.B. both touched her vagina on the outside of her clothes and put their hands up her shirt.

         {¶7} E.O. described an incident during which S.B., M.B. and C.B.'s mother, witnessed M.B. touching her. She stated the incident occurred "right before school started," she believes in late August, 2014, when she was playing in the backyard. E.O. said M.B. told her to "come here," and while they were trying to "spy" on someone, M.B. was "touching me with his fingers inside me." C.B. was "watching to make sure nobody saw it." E.O. stated at the same time, S.B. appeared behind the shed and saw her with her pants and panties down and M.B. sitting in front of her. M.B. had his fingers inside her. E.O. stated S.B. saw M.B. with his fingers inside her because "I was right there where she looked and I saw her looking at me." S.B. yelled at M.B., stating, "That's it! You're grounded and you can't play with her anymore!

         {¶8} E.O. also described incidents during which M.B. and C.B. attempted to take videos of her with their cell phones while touching her vaginal area.

         {¶9} Detective Mager wrote a narrative summarizing her interview with E.O.

         C.B. Interview with Lieutenant Icenhour

         Initial Interview

         {¶10} On October 23, 2014, Lieutenant Joel Icenhour of the Ashland Police Department met with C.B., a sixteen year-old student at Ashland High School. Assistant Principal Jon Walter removed C.B. from class and escorted him to his office, where Lieutenant Icenhour was waiting. Principal Walter sat behind the desk, while C.B. and Lieutenant Icenhour sat in two chairs in front of Principal Walter. C.B. was told Lieutenant Icenhour was there to talk to him, he was not under arrest, he didn't have to talk to him if he didn't want to, and he was free to leave. Principal Walter did not engage in the interview, but remained present according to school board policy. C.B. orally consented to the interview with Lieutenant Icenhour.

         {¶11} Lieutenant Icenhour informed C.B. he was at the school to discuss allegations made by E.O. concerning inappropriate sexual contact with C.B. and M.B. C.B. denied ever touching E.O., but admitted E.O. would come close to him and "rub up against him." He stated M.B. played often with E.O.

         {¶12} C.B. became emotionally upset during the interview, again reiterating E.O. would sometimes get close to him and "rub up against him." He stated he didn't like it and would just walk away. He stated she would often walk around showing her underwear. He repeatedly stated he would never commit this type of offense because he feared the consequences. He said he would never commit a sex offense as it would impede his future plans, including going to the military and a career in law enforcement. He also feared juvenile detention.

         {¶13} As the interview concluded, Lieutenant Icenhour told C.B. to take some time alone before returning to class. Lieutenant Icenhour informed C.B. he intended to interview his brother, M.B., and may need to speak with him again.

         M.B. Interview with Lieutenant Icenhour

         {¶14} Lieutenant Icenhour then interviewed M.B. M.B. stated his date of birth was September 28, 1999. Lieutenant Icenhour told M.B. he had come to the high school to discuss statements made by E.O. M.B. indicated he knew E.O., she was his neighbor, and he knew her age. He stated they were friends, and often played together, until he was told he should not be playing with her because he was "in high school."

         {¶15} M.B. initially denied sexual conduct with E.O., but eventually admitted to touching E.O.'s vaginal area behind the shed. M.B. said C.B. acted as the look-out playing basketball in front of the shed, while he engaged in the touching. He denied C.B. ever witnessed him touching E.O.

         {¶16} When asked about C.B.'s role in the conduct, M.B. initially indicated he knew nothing about any of the incidents, but then described his role as the "undergoer" or "side operation." He stated E.O. told him C.B. touched her, but he did not talk to C.B. about the incidents.

         {¶17} M.B. guessed C.B. engaged in touching E.O. "five or six times" based on the accounts E.O. related to him.

         C.B. Second Interview with Lieutenant Icenhour

         {¶18} Following his interview with M.B., Lieutenant Icenhour then called C.B. back to the interview room. He informed C.B. he had talked to M.B. and M.B. had indicated C.B. had a role in M.B.'s conduct with E.O., and M.B. had indicated C.B. ...

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