[Cite as In re T.A. , 2020-Ohio-3613.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

IN RE: T.A. C.A. No. 19CA0025-M

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 2018 06 DQ 0163

DECISION AND JOURNAL ENTRY Dated: July 6, 2020

TEODOSIO, Presiding Judge. {¶1} Appellant, T.A., appeals from the judgment of the Medina County Court of Common Pleas, Juvenile Division, adjudicating him delinquent fo r committing gross sexual imposition (“GSI”) in violati on of R.C. 2907.05(A)(4). This Co urt affirms.

I. {¶2} The 9-year-old victim (“K.M.”) in this matter lived in a Medina apartment with her mother, her siblings, and T.A.’s father. In April of 2018, 13- year-old T.A. was visiting his father for the weekend and slept overnight at the apartment. The chil dren all slept in the living room downstairs while the adults slept in an upstairs bedroom. Acco rding to K.M., she woke up in the middle of the night with her shor ts pulled down while T.A. was touching her buttocks and pulling her closer to him. K.M. got up and sat on the couch for a minu te, but the incident bothered her, so she went upstairs and told her m other. After T.A. would not an swer the mother’s questions, and

she was unsatisfied with his fat her’s response, she called the police.2

{¶3} The State filed a complaint alle ging that T.A. was a delinquent child for committing GSI. Following an adjudicatory hearing, a magistrate adjudicat ed T.A. to be a delinquent child. T.A. timely filed objections to the magistrate’s decision and r equested findings of fact and conclusions of law. The magistra te then filed its findings of fact and conclusions of law. The juvenile court held a hearing on the objections, denied the obj ections, adopted the magistrate’s decision, and adjudicated T.A. a delinquent child. At the disp osition hearing, the court committed T.A. to the Ohio Department of Youth Services in a secure facil ity for an indefinite term consisting of a minimum of six months and a maximum period not to exceed h is 21st birthday. The court suspended the sentence, howev er, and placed T.A. on indefinite probation with various terms and

conditions. {¶4} T.A. now appeals from the judgment of the juvenile court and ra ises two assignments of error for this Court’s review. Because T.A. cho se to consolidate and argue his assignments of error together i n his merit brief , we have likew ise consolidated the assignments of error and will address them together.

II.

ASSIGNMENT OF ERROR ONE

THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE JUVENILE COURT’S FINDING AND ADJUDICATION OF DELINQUENCY-GROSS SEXUAL IMPOSITION.

ASSIGNMENT OF ERROR TWO APPELLANT’S ADJUDICATION FOR DELINQUENCY-GROSS SEXUAL IMPOSITION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.3

{¶5} In his assignments of error, T.A. argues that his delinquency a djudication was not based on sufficient evidence and was against the manifest weigh t of the evidence. We disagree with both propositions. {¶6} The matter before us is an appeal from the trial court’s judgme nt overruling T.A.’s objections to the magistrate’s decision, adopting the magistrat e’s decision, and adjudicating him a delinquent child. In reviewing T.A.’s objections below, the ju venile court conducted an independent review of the recor d pursuant to Juv.R. 40(D)(4)(d) . This Court generally reviews a trial court’s action with respect to a magistrate’s decision fo r an abuse of discretion. In re L.W. , 9th Dist. Summit No. 24632, 2009-Ohio-5543, ¶ 16. “Under this standard, we must determine

whether the trial court’s deci sion was arbitrary, unreasonable, or unconscionable—not merely an error of law or judgment.” Id. , citing Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). {¶7} In so doing, however, we consider the trial court’s action with reference to the nature of the underlying matter. Id. at ¶ 17, citing Tabatabai v. Tabatabai , 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-3139, ¶ 18. “A lthough juvenile delinquen cy cases are technically civil in nature, this Court applies th e same sufficiency and manifest weight standards of review in a juvenile delinquency case that it applies in an adult criminal appeal due to the ‘inherently criminal aspects’ of delinquency proceedings * * *.” In re L.F. , 9th Dist. Lorain No. 10CA09880, 2012- Ohio-302, ¶ 6, quoting In re R.D.U. , 9th Dist. Summit No. 24225, 2008-Ohio-6131, ¶ 6. “A challenge to the sufficiency of the evidence concerns the State ’s burden of production, while a challenge to the manifest weight of the evidence concerns the S tate’s burden of persuasion.” In re

R.H. , 9th Dist. Summit No. 28319, 2017-Ohio-7852, ¶ 25, citing State v. Thompkins , 78 Ohio St.3d 380, 390 (1997) (Cook, J., concurring).4

{¶8} Whether an adjudication of deli nquency is supported by sufficie nt evidence is a question of law, which thi s Court reviews de novo. See Thompkins at 386. An appellate court’s function when reviewing the sufficiency of the evidence to support [an adjudication of delinquency] is to examine the evid ence admitted at trial to determine whether such evidence, if believed, would co nvince the average mind of the defendant’s guilt beyond a reasonable doubt. The r elevant inquiry is whether, after viewing the evidence in a light most favorable t o the prosecution, any rational trier of fact could have found the essential eleme nts of the crime proven beyond a reasonable doubt.

State v. Jenks , 61 Ohio St.3d 259 (1991), paragrap h two of the syllabus. {¶9} Weight of the evidence concerns whether the greater amount of c redible evidence produced at trial supports one s ide over the other side. Thompkins at 387. When reviewing a manifest weight challenge, an appellate court must review the entire record, weigh the evi dence and all reasonable inferences, consider the credibility of witnesses an d determine whether, in resolving conflicts in the evidence, the trier of fact clear ly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the c onflicting testimony.” State v. Tucker , 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This dis cretionary power “should be exercised only in the exceptional case in which the evidence we ighs heavily against the

conviction.” Thompkins at 387, quoting State v. Martin , 20 Ohio App.3d 172, 175 (1st Dist.1983).

See also Otten at 340. {¶10} T.A. was adjudicated a delinquent child for violating R.C. 2907 .05(A)(4), which provides: “No person shall have s exual contact with another, no t the spouse of the offender * * * when * * * [t]he other person * * * is less than thirteen years of age, whether or not the offender5

knows the age of that person.” “Sexual contact” includes “any touching of an erogenous zone of another, including without limitation the * * * buttock * * * f or the purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B). “A person acts purposely when it is the person’s specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender in tends to accomplish thereby, it is the offender’s specific intention to engage in conduct of that natu re.” R.C. 2901.22(A). “Purpose can be established by circumstantial evidence and may be ascertaine d from the surrounding facts and

circumstances of the case.” North Ridgeville v. Reichbaum , 112 Ohio App.3d 79, 85 (9th Dist.1996). A trier of fact may infer a purpose of sexual arou sal or gratification from the type, nature, and circumsta nces of the contact, a long with the person ality of the defendant. See State v.

Pistawka , 9th Dist. Summit No. 27828, 2016-Ohio-1523, ¶ 16. {¶11} We first note that T.A. has not i dentified which portions of hi s argument relate to sufficiency and which relate to manifest weight. See, e.g., State v. Hull , 9th Dist. Wayne No. 14AP0025, 2015-Ohio-4001, ¶ 21. Upon review, it appears T.A.’s sufficiency argument is limited to simply offering a list of things he claims K.M. did not test ify to or could not answer at trial; e.g.,

he claims she did not understand a question about whether T.A. sleeping over made her feel uncomfortable, she did not recall what time she fell asleep, sh e did not know how her pants came to be pulled down, she did not immediately tell her mother, she watched a video on her tablet after telling her mother, and she “lacked any specific detail” when t estifying as to the incident. We cannot agree with T.A. that these arguments demonstrate his del inquency adjudication was not supported by sufficient evidence. {¶12} K.M. was only 9 years old on April 29, 2018. She testified tha t she slept on the living room floor next to both he r sister and T.A. that night, while T.A’s sister slept on the couch.6

She testified that she was awake ned in the middle of the night by T.A. “touching [her] butt and bringing [her] closer to him.” Her shorts were “down halfway[, ]” but she had not pulled them down herself. She got up and sat on the couch for “like a minu te,” but “it bothered [her],” so she went upstairs to tell her mother. {¶13} Her mother also testified at the hearing that K.M. woke her up that morning “[h]ysterically crying.” When she asked what was wrong, K.M. e xplained that “she woke up with * * * her shorts at her knees and [T.A.] was rubbing her butt c heeks and breathing in her ear.”

T.A.’s father then went downstairs while K.M.’s mother comforte d her and gave her a tablet to watch videos. Once she was able to calm K.M. down, the mother went downstairs to speak to T.A.

She testified that T.A. was on the couch and would not look at her. When she asked him about the incident, he told her, “That’s j ust weird. That’s just weird.” When she asked him where he was and what was going on, T.A. said, “I was on the floor. I was o n the couch.” Believing he was not answering her questions honestly, she turned around and left th e room in anger. She told T.A.’s

father that he had to take his son and get out. She testified that, after the incident, K.M. did not eat for a couple days and missed some school. K.M. now sleeps in her mother’s bed seven days a week and wakes up crying in the middle of the night. She is sc ared to play basketball now, especially when there are olde r boys around, and she has to see a counselor. {¶14} After reviewing the evidence presented in a light most favorabl e to the prosecution, we determine that the State presented sufficient evidence, if b elieved, to demonstrate that T.A. purposely engaged in sexual contact with K.M. when he touched h er buttocks. K.M. testified that she woke up with her shorts pulled down and T.A. touching her b uttocks, and the testimony of the victim in sex offense cases, if believed, is sufficient to supp ort a delinquency adjudication, even

without further corroboration. See State v. Martucci , 9th Dist. Summit No. 28888, 2018-Ohio-7

3471, ¶ 16. It can also be inferred from the surrounding circu mstances that T.A. touched K.M. for the purpose of sexual arousal or gratification, as her shorts w ere pulled down in the middle of the night while she was asleep and T.A. was touching her buttocks a nd pulling her closer. A minute later, K.M. went upsta irs and told her mother what happened whi le hysterically crying. K.M. was only 9 years old at the time of the incident, and the parties s tipulated for purposes of the record

that T.A. and K.M. were not married to each other. We therefor e conclude that a rational trier of

fact could have found all the el ements of GSI proven beyond a r easonable doubt. {¶15} Turning now to T.A.’s manifest weight argument, he challenges K .M.’s credibility and claims she had a “reputation for untruthfulness” because he r mother admitted K.M. has told lies in the past to get what she wants and T.A.’s sister testif ied that K.M. would lie to get others in trouble, including T.A. He furthe r argues there were inconsist encies in the trial testimony because both K.M. and her mother claimed the children got along togethe r, while T.A. and his sister claimed they did not. He argues that the testimony also differ ed as to whether the tablet was located upstairs or downstairs. Finally, T.A. argues that both K.M. and her mother had a motive to make false allegations against him because (1) T.A.’s sister testified that she saw K.M. patting T.A.’s buttocks while he was asleep and told her to stop, and ( 2) T.A. found marijuana in the mother’s apartment before the unde rlying incident allegedly occ urred. {¶16} T.A.’s 11-year-old sister testified that she did not get along with K.M. and they would fight a lot. She referred to K.M. as both “annoying” and a “crybaby,” and testified that K.M. lied about her in the past and tried to get her in trouble . She recalled seeing K.M. “patting [T.A.’s] butt” after he fell asleep that night and telling K.M. to stop. Still, T.A.’s sister admitted she was asleep during the alleged incident later that night whe n T.A. was touching K.M. She admitted she does not get along w ith K.M.’s mother and claimed the mother treats both her and8

T.A. like they are not part of the family, as if they are “noth ing, basically.” She testified that she

believes K.M.’s mother does not w ant her and T.A. around becaus e they are always fighting with her own children, who are “always complaining” and “always tell ing.” {¶17} T.A. also testified on his own be half at the hearing. He refer red to K.M. as “spoiled” and a “crybaby.” He te stified that she has lied abou t him in the past, but neglected to provide any details. He testifie d that, on the night of the in cident, his sister fell asleep first. He denied K.M.’s allegations that he touched her, and claimed that she instead woke him up when she got up and moved to the couch. According to T.A., K.M. was on the couch for five seconds before she went upstairs. T.A. then moved to the couch because his hi p was hurting. His dad soon came downstairs and asked what was wrong with him, so T.A. told him what happened. He testified

that he could not recall what K.M.’s mother said when she came downstairs to talk to him, but she did not ask him any questions or accuse him of anything. Yet, he recalled responding to her comments with, “Why would I do th at? That’s weird” and “Dad, c an we get a lawyer?” T.A. also testified that he does not get a long with K.M.’s mother. He cl aimed K.M.’s mother is aware that, one year before this alleged GSI, he was looking for candy and found some “stuff” in her apartment, including a razor blad e and some crack cocaine on a plate in the top of her closet and some marijuana in a tin on her dresser. He admitted that the m other’s children were unaware of his discovery. He did not testif y as to how he could identify these items as illicit drugs or how he confirmed they belonge d to K.M.’s mother. {¶18} We find no merit in T.A.’s argu ment that his delinquency adjudi cation was against the manifest weight of the evidence. The magistrate was presen ted with conflicting stories at trial as to whether T.A. woke K.M. up tha t night by touching her butt ocks and pulling her closer while her shorts were pulled down. She was free to find K.M. to be a competent, credible witness, and9

free to find T.A. to be not credible, as the trier of fact is f ree to believe all, part, or none of the testimony of each witness. See State v. Clark , 9th Dist. Wayne No. 14AP0002, 2015-Ohio-2978, ¶ 24 (involving a jury as trier of fact); Prince v. Jordan , 9th Dist. Lorain No. 04CA008423, 2004- Ohio-7184, ¶ 35 (involving a jury as trier of fact). The magis trate was best able to view the

witnesses and observe t heir demeanor, gest ures, and voice infle ctions, and use those observations in weighing the credibility of the proffered testimony. See State v. Taylor , 9th Dist. Summit No. 29058, 2019-Ohio-3253, ¶ 15 (involving a jury as trier of fact) . “‘[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.’” State v. Haydon , 9th Dist. Summit No. 27737, 2016-Ohio-4683, ¶ 28, quoting State v. DeHass , 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The magistrat e could further reasonably infer from the circumstances that T.A.’s act of touching K.M.’s butto cks was done to achieve sexual arousal or gratification. See In re T.A.F. , 9th Dist. Medina No. 09CA0046-M, 2010-Ohio-3000, ¶ 32. The magistrate was aware of the non-specific testimony tha t K.M., a 9-year-old girl, has lied sometime in the past, and was able to consider it when weighing her credibility. The magistrate was also aware of the conflicting testimony as to whether the c hildren typically got along and whether the tablet was located upstairs or downstairs that nigh t. She was free to give little or no weight to T.A.’s sister’s testimony that she saw K.M. patting T .A.’s buttocks while he was asleep, especially in light of T.A.’s own testimony that his sister was the first one to fall asleep that night. The magistrate was also free to give little or no weight to T.A .’s self-serving allegation that he found drugs in the mother’s apartment one year earlier, which s upposedly gave the mother and the

unaware K.M. some type of motive to lie about T.A. and make false alle gations against him. “This Court has consistently held t hat ‘[w]e will not overturn a conv iction as being against the manifest weight of the evidence simply because the trier of fact chose t o believe the State’s version of events10

over another version.’” Taylor at ¶ 15, quoting State v. Fry , 9th Dist. Medina No. 16CA0057-M, 2017-Ohio-9077, ¶ 13. {¶19} In reviewing the entire record, weighing the evidence and all r easonable inferences, and considering the credibility of witnesses, we cannot say tha t the magistrate, in resolving any conflicts in the evidence, clearly lost her way and created a m anifest miscarriage of justice in adjudicating T.A. delinquent for committing GSI. See Otten at 340. T.A. has also not demonstrated how this is an exceptional case where the evidence presented weighs heavily in his favor and against delinquency adjudication. See Thompkins at 387. Accordingly, the juvenile court did not err in overruling T.A.’s objections, adopting the magistrate’s decision, and adjudicating T.A. delinquent bec ause the magistrate’s decision was supported by sufficient evidence and was not against the manifest weight of the evidenc e. See In re T.A.F. at ¶ 32, citing

Blakemore , 5 Ohio St.3d at 219; In re E.A. , 9th Dist. Summit No. 28106, 2016-Ohio-7281, ¶ 13. {¶20} T.A.’s first and second assignmen ts of error are overruled.

III. {¶21} T.A.’s first and second assignments of error are both overruled . The judgment of the Medina County Court of Comm on Pleas, Juvenile Division, is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27.11

Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

THOMAS A. TE ODOSIO FOR THE COURT

CALLAHAN, J. CONCURS. CARR, J. CONCURRING IN PART, AND DISSENTING IN PART. {¶22} I concur in the majority’s resolution of the first assignment o f error because the evidence at trial, when viewed in the light favorable to the St ate, would be sufficient to sustain T.A.’s adjudication. {¶23} I respectfully dissent in regard to the majority’s resolution o f the second assignment of error. The credibility determinations in this matter were p ivotal as there were legitimate questions as to the reliability of the testimony of several key witnesses, most notably the alleged victim. While a juvenile court ma y give deference to a magistr ate’s credibility findings, the court has a duty to independently review the evidence underpinning th e magistrate’s decision. In re

J.W. , 9th Dist. Lorain No. 10CA009939, 2011-Ohio-3744, ¶ 24. In th is case, T.A. raised witness credibility issues in his objections. T.A. specifically argued that the alleged victim’s account of12

the incident was “inconsistent ” and “incomplete.” In response, the trial court simply stated that it “[would] not disturb the Magistrate’s findings of credibility” because the trier of fact was in the best position to resolve any issu es in that regard. The trial court further noted t hat it was the right of the trier of fact to place significant weight on the testimo ny of the alleged victim. The trial court did not directly respond to the issues raised by T.A. {¶24} Furthermore, the scope of this Court’s review should be limited to the trial court’s action on a magistrate’s decision. See Tabatabai v. Tabatabai , 9th Dist. Medina No. 08CA0049- M, 2009-Ohio-3139, ¶ 17. Although the trial court did not unde rtake a substantive review of the credibility concerns, I would refrain from undertaking a direct review of the magistrate’s decision.

Given that the trial court di d not address the credibility issu es raised in T.A.’s objections, I would

reverse and remand for the trial court to resolve these credibi lity challenges in the first instance.

APPEARANCES: ERIC D. HALL, Attorney at Law, for Appellant. S. FORREST THOMPSON, Prosecuting Attorney, and KORY J. WIITA, A ssistant Prosecuting Attorney, for Appellee.