In re North Dakota

182 N.E.3d 470

IN RE: N.D., a Minor Child

No. 21 CA 0040

21 CA 0041

Court of Appeals of Ohio, Fifth District, Licking County.

DATE OF JUDGMENT ENTRY: December 17, 2021

WILLIAM HAYES, LICKING CO. PROSECUTOR, PAULA M. SAWYERS, 20 South Second St., Fourth Floor, Newark, OH 43055, For Plaintiff-Appellee.

OFFICE OF THE OHIO PUBLIC DEFENDER, LAUREN HAMMERSMITH, Assistant State Public Defender, 250 East Broad St., Suite 1400, Columbus, OH 43215, For Defendant-Appellant.

JUDGES: Hon. W. Scott Gwin, P.J., Hon. Patricia A. Delaney, J., Hon. Earle E. Wise, Jr., J.

OPINION

Delaney, J. {¶1} Appellant N.D. appeals from the April 30, 2021 Judgment Entry of the Licking County Court of Common Pleas, Juvenile Division. Appellee is the state of Ohio.

{¶2} The instant appeals are related but not consolidated. This matter arose from two separate juvenile court case numbers: A20170439 and A20170471. The briefs and sole assignment of error in both cases are identical.

FACTS AND PROCEDURAL HISTORY

{¶3} In case number A20170471, appellant was adjudicated to be a delinquent child upon three counts of gross sexual imposition (G.S.I.), all felonies of the third degree pursuant to R.C. 2907.05(A)(4), and one count of G.S.I. pursuant to R.C. 2907.05(A)(1), a felony of the fourth degree. In case number A20170439, appellant was adjudicated to be a delinquent child upon one count of G.S.I., a felony of the third degree pursuant to R.C. 2907.05(A)(4). Each count is a "sexually oriented offense" pursuant to R.C. 2950.01(A)(1). Four of the counts are subject to discretionary classification pursuant to R.C. 2152.83(B).

{¶4} A single count--Count VII in case number A20170471—rendered appellant subject to mandatory classification pursuant to R.C. 2152.83(A)(1) because the offense occurred between the dates of September 1, 2016 to March 1, 2017, when appellant was 16 to 17 years old.

{¶5} A dispositional hearing was held on November 3, 2017, and appellant was classified as a Tier II juvenile sex offender registrant for a period of 20 years with in-person verification every 180 days.

{¶6} On January 9, 2020, appellant's classification was modified following a classification review hearing after his discharge from a secure facility. Appellant was then classified as a Tier I juvenile sex offender registrant for a period of 10 years with in-person verification annually.

{¶7} Appellant was released from parole on September 16, 2020.

Motion and hearing for declassification

{¶8} Appellant filed a motion for declassification pursuant to R.C. 2152.84 and the matter proceeded to an evidentiary hearing on April 29, 2021. The following evidence is adduced from the record of the hearing.

{¶9} The trial court noted the following evidence submitted by the parties:

* * * *.

I've recently reviewed the contents of each of the files before me, including the motion filed on behalf of [appellant], each progress review summary, the release decision summary, and discharge decision summary all previously submitted to the Court by the Ohio Department of Youth Services regarding [appellant]. I have also reviewed all written reports submitted to this Court by the Probation Department included in the written report of Probation Officer Lindsay Rogers filed on April 27th, 2021, recommending a continuation of [appellant's] current classification requirements.

And I have reviewed the notice of supplemental exhibit to motion for declassification that was filed by [defense trial counsel] on April 28th, 2021, being an email from [appellant's] former parole officer, * * * [and] a letter from [appellant's] treatment provider at Osterlen? * * * *.

T. 10-11.

{¶10} Appellee reiterated its position that it opposed appellant's declassification. T. 12.

{¶11} Appellant's probation officer appeared and stated that in addition to the written report she submitted, allegations existed that appellant contacted two of the victims upon his release from detention and was dating a minor child as of the hearing date. T. 12.

{¶12} The Victim Advocate noted the victims report ongoing trauma from appellant's offenses, and also stated appellant contacted two of the victims upon his release from detention. The victims and their families collectively opposed appellant's declassification. T. 14.

{¶13} Appellant's guardian ad litem (G.A.L.) opined appellant was statutorily ineligible for declassification, but added that if the trial court deemed him eligible, she supported declassification. The G.A.L. stated:

* * * *.

It's my opinion that he has gone above and beyond what's been asked of him. He successfully completed treatment. He's become employed. He completed parole successfully; in fact, that he had no violations. And I believe that if there had been some sort of contact with the victim, I would have to believe that that would have been reported to the parole officer upon his release from DYS.

So at this time, I would be in support of that if the Court deems that he is eligible.

* * * *.

T. 14-15.

{¶14} Appellant's Father testified on his behalf. Father said appellant lives alone in an apartment in Columbus, and Father and son for the same communications firm. They install Wi-Fi and internet service. Someone observed appellant working in a children's hospital and reported him to security because they were aware of the instant case. The employer did not fire appellant but instead transferred his work location. When cross-examined about appellant's current girlfriend, Father said she was 18 years old.

Exhibit: probation officer's report of April 27, 2021

{¶15} Appellant's probation officer testified at the hearing and provided a written report dated April 27, 2021. The report is in the record for our review and we note the following pertinent facts.

{¶16} Appellant applied for judicial release while committed to DYS, but his request was denied because appellant was engaged in a consensual sexual relationship with another youth in the facility, resulting in his removal from the program and not having completed Phase 2 of substance abuse training.

{¶17} Appellant's parole officer told probation that appellant did "fantastic" and successfully completed parole, including graduating from high school, beginning an apprenticeship with a heating and cooling provider, and engaging in aftercare services to address problematic sexual behaviors.

{¶18} Appellant first became involved in the juvenile justice system in 2015 when he was placed on diversion for possession of criminal tools. The nature of the offense was sending nude photos of himself and receiving photos of a peer-aged female. Appellant was found to be in violation of the diversion contract when he was found in possession of a cell phone which he used to access Facebook, send more nude photos to a female via Snapchat, and to send a sexually-explicit note to a female at school.

These offenses occurred while appellant was on court supervision. Diversion was terminated and he was placed on probation.

{¶19} In the instant G.S.I. cases, appellant offended against five victims ranging in age from 5 years old to 15 years old. Appellant self-reported that each victim was victimized two to three times with the exception of one.

{¶20} An element of physical force was involved in terms of appellant preventing smaller victims from resisting such as grabbing the victim's arm and forcing her to touch his penis.

{¶21} Appellant did complete sex-offender-specific programming while at DYS. He also continued in aftercare and worked on addressing problematic sexual behaviors.

{¶22} Appellant reported that he forced others to engage in sexual encounters. His older victims asked him to stop on several occasions however their pleas were ignored. He used physical force with at least one victim by forcefully taking that victim's hand and placing it on his penis. He did not consider how this made his victims feel and the long-term effects that his actions could cause.

{¶23} Appellant displayed a history of sexual abuse and acting out as evidenced by his prior court contact. During his court supervision his level of risk increased and then continued when in a secured facility by engaging in a sexual relationship with another youth knowing that it was against the policy causing him to be removed from the program. He has only recently begun to display any remorse or empathy for his actions/victims.

{¶24} The report concludes:

* * * *.

At this time due to information above such as the age of all but one of the victims being under the age of 13, the number of times the abuse occurred, [the] fact that he has a history of inappropriate sexual behaviors leading to multiple delinquency adjudications, acting out sexually while in a secure placement, and displaying little victim empathy, Probation Department would recommend that [appellant] continued to register as a TIER I Juvenile Sex Offender Registrant at this time.

* * * *.

Exhibit: parole officer's email dated April 26, 2021

{¶25} Appellant offered an email from his parole officer as an exhibit at the hearing. The email states the following in pertinent part:

* * * *.

My name is Kyle L. Dickinson Parole Officer for the Ohio Department of Youth Services and I was the parole officer for [appellant] from co 12/21/19 to 9/16/20. During that period of time [appellant] complied with any and all that was requested of him. Upon release [appellant] was placed in Springfield, Ohio, living with his mother. [Appellant] enrolled in OIC and completed class work allowing him to obtain his diploma. [Appellant] contacted Oesterlen for Youth and was involved in Sex Offender counseling. His counselor was Bob Hayes and he attended the entire time he lived in Springfield and was terminated successfully by Mr. Hays. Bob said that [appellant] was very knowledgeable concerning his flags and triggers and had a solid plan of prevention and thought process not to re-offend. [Appellant] was registered as a tier one sex offender in Clark Co. he [sic ] signed up with Andria Trego SORN Officer with Clark

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