author: SEAN C. GALLAGHER, J.:

text:
    IN RE: T.W., a Minor Child
    No. 106231
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: August 16, 2018
    Brian J. Smith, John A. Sivinski, Sivinski & Smith, L.L.C., 20545 Center Ridge Road, Suite 215, Rocky River, Ohio 44116, ATTORNEYS FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Jillian J. Snyder, Assistant Prosecuting Attorney, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    S.B., pro se, 212 Lincoln Drive, Port Clinton, Ohio 43452, For Mother
    H.W., pro se, 4914 Lindsey Lane, Cleveland, Ohio 44143, For Father
    BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.:

{¶ 1} T.W. appeals a delinquency adjudication for acts constituting: (1) kidnapping by force, threat, or deception under R.C. 2905.01(A)(4) ; (2) gross sexual imposition under R.C. 2907.05(A)(4), as the lesser included offense of statutory rape under R.C. 2907.02(A)(1)(b) ; and (3) forcible rape under R.C. 2907.02(A)(2). That adjudication is not sustained by sufficient evidence.

{¶ 2} This case presents a particularly difficult review in light of the fact that it involves a minor child as the named victim. Despite our concern for this child, or any child victim, we nevertheless must apply the law to the facts of the case, and accept the end result of the analysis.

{¶ 3} The only evidence in support of the delinquency adjudication is the child's disclosure made to her mother and father (who disagreed as to the extent and nature of that disclosure) and the child's statements to an emergency, pediatric social worker employed by the hospital where treatment was sought. The child's statements describing the alleged sexual acts were introduced under Evid.R. 807(A). The child disclosed to her mother and the social worker that T.W., the child's brother, asked her to perform fellatio on him and the victim placed her mouth on T.W.'s genitals. Both the mother and the social worker clarified that the child spoke of no force or compulsion. Father offered a more benign version of the disclosure, essentially claiming that the child was tattling on T.W. for saying "suck" and that any sexual connotation was injected through mother's questioning. There is no medical evidence or other physical evidence confirming the sexual abuse.

{¶ 4} In addition, the child's mother testified that she observed a behavioral change in the four-year-old toward the end of 2014 - the child exhibited disruptive and "clingy" behavior and began wetting her bed. The state claimed that the trier of fact could infer from the behavioral changes that a sexual assault occurred, but concedes that the mother could not explain the possible causes of the behavioral change or whether the behavioral characteristics were indicative of sexual abuse. T.W. presented an expert who testified that the behavioral characteristics observed by the mother were not unique to abuse victims.

{¶ 5} We acknowledge that additional evidence was presented at an interlocutory evidentiary hearing conducted under Evid.R. 807, such as the testimony of Shannon Sneed from the Cuyahoga County Department of Child and Family Services (who did not testify at the adjudicatory hearing) and the investigating police officer Gregory Patterson (who did testify in a limited capacity, limited by Confrontation Clause issues). The trial court expressly precluded either of those witnesses from substantively testifying to the sexual misconduct or the child's statements during the final adjudicatory hearing.

{¶ 6} We cannot consider the evidentiary hearing evidence for the purpose of determining whether there is sufficient evidence in support of the adjudication of delinquency. The state could have appealed that interlocutory decision to suppress the evidence under R.C. 2945.67(A) in advance of the hearing if such evidence was necessary to a successful prosecution. In re M.M. , 135 Ohio St.3d 375, 2013-Ohio-1495, 987 N.E.2d 652, ¶ 48. As a result, there are two pieces of evidence used to adjudicate T.W. delinquent - the child's statements admitted under Evid.R. 807(A) through the mother's, father's, and a hospital social worker's testimony, and mother's statement that the victim exhibited behavioral changes at the end of 2014.

{¶ 7} In Ohio, Evid.R. 807 provides an exception to the general inadmissibility of hearsay uttered by a child under the age of 12 that describes any sexual act performed by, with, or on the child. This exception applies if (1) the court finds that the totality of the circumstances around the making of the statement provides a particularized guaranty of trustworthiness comparable at least to Evid.R. 803 and 804 ; (2) the child's testimony is not reasonably obtainable by the proponent of the statement; (3) there is "independent proof" of the sexual act; and (4) the proponent of the statement has notified all other parties of the content of the statement at least ten days before the trial or hearing. Evid.R. 807(A)(1)-(4). The rule is stated in the conjunctive. In order for the out-of-court statements to be admitted under the rule, the proponent must demonstrate all of the above.

{¶ 8} In this case, there is no independent proof of the sexual act as a foundation for the evidence admitted at the adjudicatory hearing. The only substantive evidence of a sexual act not derived from the child's out-of-court statements, according to the state, is the mother's observation that the child exhibited a behavioral change toward the end of 2014, approximately a year before she disclosed the alleged misconduct to the adults. Sneed and Officer Patterson were precluded from testifying about their conversations with the child.

{¶ 9} Without expert testimony, the mother's observations of the child's behavioral changes are not independent proof as contemplated under Evid.R. 807(A)(3). In State v. Stowers , 81 Ohio St.3d 260, 262, 690 N.E.2d 881 (1998), it was recognized that expert testimony in sexual abuse cases is admissible to demonstrate that such behavior is consistent with those observed in sexually abused children in general. That expert testimony is permitted because a lay person lacks any specialized knowledge about behavioral characteristics of child abuse victims and is unaware of how sexually abused children respond to sexual or other physical abuse. Id. , quoting State v. Boston , 46 Ohio St.3d 108, 128, 545 N.E.2d 1220 (1989) (" 'Incest is prohibited in all or almost all cultures and the common experience of a juror may represent a less-than-adequate foundation for assessing whether a child has been sexually abused.' "). Although mother's observations regarding her child's behavioral characteristics are admissible, the relevancy of such testimony is limited absent an expert qualified to explain the significance of the noted observations.

{¶ 10} The state nevertheless argues that the trier of fact is capable of inferring that the behavioral changes were caused by the sexual misconduct without expert testimony. If the state's argument was true, however, Stowers would not have permitted the use of expert testimony to explain the significance of the behavioral observations. Expert testimony is permitted only if the testimony "relates to matters beyond the knowledge or experience possessed by lay persons or it dispels a misconception common among lay persons." Evid.R. 702(A). If a lay person were capable of inferring the causal connection between sexual abuse and observed behavioral traits, no expert testimony would be permitted because the lay person was capable of formulating a conclusion based on the evidence presented without the assistance of expert testimony. State v. Garcia , 8th Dist. Cuyahoga No. 79917, 2002-Ohio-4179, 2002 WL 1874535, ¶ 44 ; Reynolds v. Bauer , 2d Dist. Montgomery No. 21179, 2006-Ohio-2912, 2006 WL 1574754, ¶ 21 (the justification for expert testimony is concerned with the jury's ability to "draw proper inferences" from the facts in evidence). The foundation of the Stowers decision precludes us from accepting the state's argument, and tellingly, the state has not cited a case in which any court has held that a lay person may infer sexual or physical abuse from a victim's behavior without an expert opinion.

{¶ 11} On this point, the state cites State v. Robertson , 9th Dist. Summit No. 19072, 2000 WL 141073, *5-6 (Feb. 2, 2000), claiming that a trier of fact can infer the occurrence of a sexual assault from behavioral changes without expert testimony. In that case, however, the state presented expert testimony to draw the necessary connection, and more important, the offender had confessed to the misconduct, rendering the need for further independent proof irrelevant. Id. at *, 2000 Ohio App. LEXIS 276 at *14 (noting that the state presented a psychologist to testify that the victim's behavior was indicative of sexual abuse); accord In re S.H.W. , 2d Dist. Greene No. D44918, 2016-Ohio-841, 2016 WL 853694, ¶ 37. A confession to committing a crime constitutes independent proof. See, e.g., State v. Hand , 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151 (under the independent proof prong of Evid.R. 801(D)(2)(e) for the purposes of proving a conspiracy, defendant's statements admitting to the conspiracy were independent proof of the conspiracy for the purposes of introducing the coconspirator's statements at defendant's trial).

{¶ 12} In this case, there is no expert testimony demonstrating that the observed behavioral characteristics are independent proof of a sexual act having occurred and there is no confession. In response, the state claims that the child's behavioral changes can be interpreted in conjunction with her statements describing the sexual act under the Evid.R. 807(A)

analysis. See, e.g., State v. Owens , 2d Dist. Montgomery No. 17394, 2000 WL 217219, *13 (Feb. 25, 2000) (victim's behavior when "compounded" with the victim's statements regarding the sexual acts considered "independent" proof of the sexual acts); In re A.K. , 2d Dist. Montgomery No. 26199, 2015-Ohio-30, 2015 WL 132426, ¶ 16 (relying on Owens ); State v. Hall , 9th Dist. Summit No. 20089, 2001 WL 57178, *5 (Jan. 24, 2001) (victim's statements about the sexual act using anatomically correct dolls constituted "independent" proof of the sexual acts); but see State v. Singleton, 2016-Ohio-4696, 69 N.E.3d 118, ¶ 23 (8th Dist.) (sexual assault nurse's examination revealing physical evidence of sexual abuse constituted independent proof of the sexual act). We decline to adopt the proposition that an alleged victim's statements describing the sexual act can provide the context necessary to demonstrating the "independent proof."

{¶ 13} Proof of the sexual act must be independent of the child's statements describing the sexual act. The term "independent proof" under Evid.R. 807(A)(3)"is comparable to the independent proof requirement of the co-conspirator exception under Evid.R. 801(D)(2)(e)." 1991 Staff Notes, Evid.R. 807(A)(3). Traditionally, the "bootstrapping rule" from Evid.R. 801(D)(2)(e) precludes the state from presenting evidence of a conspiracy by admitting statements of a coconspirator that established the conspiracy in the first place. Bourjaily v. United States , 483 U.S. 171, 177, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). Likewise, the state cannot offer "independent proof" of a sexual assault having occurred that is solely based on an inference that exists through consideration of the child's statements describing the sexual act, statements that would otherwise be inadmissible without the independent proof.

{¶ 14} The mother's behavioral observations standing alone cannot be considered independent proof of a sexual assault having occurred, especially considering the state's argument that the mother only testified as to her observations but could not explain what caused the change or the significance of the characteristics noted. On this point, expert testimony was required to establish the causal connection because a lay person would ordinarily be unaware of how sexually abused children might respond to sexual or other physical abuse and because a lay person does not possess the specialized knowledge or training to determine which behavioral characteristics would be indicative of an assault. Stowers , 81 Ohio St.3d at 262, 690 N.E.2d 881. Further, by using the child's statements as the context within which to consider the behavioral observation testimony, the state is bootstrapping - relying on the child's statements as the foundation of independent proof of the sexual act before determining the admissibility of those statements. The state failed to demonstrate the admissibility of the child's out-of-court statements describing the sexual act, and those statements should have been excluded.

{¶ 15} The emphasis and detail the dissent places on the veracity of the child suggests that the child should have been deemed competent to testify in this case. The child's "detailed account" proffered through hearsay, is not relevant to the issues preserved for this appeal, which focuses on the admissibility of the child's statements under Evid.R. 807. "A hearsay statement of a child declarant can be admitted under Evid.R. 807 without a determination of the child's competence to testify." State v. Silverman , 121 Ohio St.3d 581, 2009-Ohio-1576, 906 N.E.2d 427, syllabus. Thus, the child's ability to truly relate her impressions of the facts and transactions is irrelevant to the admissibility of the hearsay. Although the record is unclear as to the reason, the trial court deemed the child incompetent to testify at trial under Evid.R. 601 after conducting an in camera interview of the child and the state did not timely appeal that decision. We have not been asked to review the competency determination.

{¶ 16} Generally, any error with the admission of evidence would result in a new trial. See, e.g., State v. Creech , 150 Ohio St.3d 540, 2016-Ohio-8440, 84 N.E.3d 981, ¶ 40 (affirming appellate remand for a new trial without the tainted evidence). However, even if the problems with Evid.R. 807(A) were ignored, the evidence presented at the adjudicatory hearing was insufficient to prove that T.W. committed acts constituting kidnapping by force, threat, or deception under R.C. 2905.01(A)(4), gross sexual imposition under R.C. 2907.05(A)(4), or forcible rape under R.C. 2907.02(A)(2) as a matter of law.

{¶ 17} The standard of review for questions involving the sufficiency of the evidence in delinquency adjudications is the same applied for felony defendants: the evidence and all reasonable inferences are reviewed in favor of the state to determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. In re D.C. , 8th Dist. Cuyahoga, 2018-Ohio-163, 104 N.E.3d 121, ¶ 3, citing In re Washington , 81 Ohio St.3d 337, 339, 691 N.E.2d 285 (1998), and In re J.S. , 8th Dist. Cuyahoga No. 102800, 2015-Ohio-4990, 2015 WL 7777976, ¶ 13. With respect to the kidnapping and rape charges, the state was required to demonstrate some element of force. But, there is no evidence that T.W. forced or compelled his sister to perform fellatio, or otherwise restrained her liberty in the process. The evidence, considered in the light most favorable to the state, established that T.W. asked his sister to perform fellatio, and she performed the sexual act. Sneed and Officer Patterson were precluded from testifying as to the child's statements and, thus, cannot be considered in determining whether the state presented sufficient evidence.

{¶ 18} The state contends that the force or restraint aspect of the delinquency adjudication was demonstrated based on the principle established in State v. Eskridge , 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), and State v. Dye , 82 Ohio St.3d 323, 695 N.E.2d 763 (1998). See, e.g., State v. Eads , 8th Dist. Cuyahoga No. 87636, 2007-Ohio-539, 2007 WL 416928, ¶ 12 (relying on Eskridge and its progeny as a basis to find that the state demonstrated force). In that line of cases, a person may be convicted of rape with force under R.C. 2907.02(A)(2) without evidence of the express or overt threat of harm or without evidence of significant physical restraint, if the offender is in a position of authority over the victim. Id. at 329, 695 N.E.2d 763. The element of force can be implied if the state demonstrates that the victim's will was overcome by fear or duress based on the offender's position of authority. Id. at 327, 695 N.E.2d 763. In this case, the state failed to demonstrate the applicability of Eskridge and its progeny.

{¶ 19} In In re L.R.F. , 2012-Ohio-4284, 977 N.E.2d 138, ¶ 22 (8th Dist.), a ten-year-old cousin was accused of "forcing" his six-year-old relative to perform fellatio on him. The older relative threatened to tell the victim's parents that the younger victim kissed another boy. Id. at ¶ 3. Similar to the current circumstances, there was no evidence of overt or psychological force, no evidence of a filial relationship between the offender and alleged victim, and no evidence of the offender having authority over the alleged victim. Id., citing In re N.K. , 8th Dist. Cuyahoga No. 82332, 2003-Ohio-7059, 2003 WL 23009113, and In re D.L. , 3d Dist. Crawford No. 3-11-08, 2012-Ohio-1796, 2012 WL 1392366, ¶ 27. The only evidence presented was that the offender, who was under the age of 13, "asked" the alleged victim to perform fellatio and she complied. Id. This was deemed insufficient to sustain the rape with force conviction. Id. The state maintained that force was implied under Dye and its progeny, but that argument was rejected based on the age of the offender and the state's inability to demonstrate that the older relative held a position of authority over the younger one. Id. at ¶ 22.

{¶ 20} In this case, the mother claimed that the child exhibited behavioral changes before T.W.'s 13th birthday. The state attempted to demonstrate the sexual conduct in part based on that evidence. As a result, the state cannot rely on Eskridge or its progeny in demonstrating that force was proven beyond a reasonable doubt. In In re L.R.F., the court declined to extend the holdings from Eskridge and Dye to offenders under the age of 13 at the time of the alleged misconduct.

{¶ 21} Regardless, even if T.W. was older than 13 at the time of the alleged misconduct, there was no evidence that he was in a position of authority over his younger sister for the purposes of implying force. We cannot create a per se rule, as the state suggests, that "force" under R.C. 2907.02(A)(2) is demonstrated whenever sexual assaults are committed by an older relative. There must be some evidence, for instance, that the offender has inherent power through his position of authority over the victim, or that the force used was subtle and psychological stemming from the filial-like relationship.

{¶ 22} In this case, the mother testified that the two children were always supervised by adults. This demonstrates that T.W. was not burdened with the responsibility of caring for or watching over his sister. Further, the sister was not told that T.W. was an authority figure. See, e.g., Dye , 82 Ohio St.3d 323, 328, 695 N.E.2d 763, citing Eskridge , 38 Ohio St.3d 56, 526 N.E.2d 304 (the absence of parental relationship is not dispositive; the state can demonstrate psychological force when the state demonstrates the offender is an authority figure and the parents tell the victim to listen to the offender in the parents' absence). The state failed to introduce any evidence that T.W.'s sister was forcibly compelled to perform fellatio, was forcibly restrained in the process, or had submitted to the sexual act through psychological or implied force as defined in Eskridge and its progeny.

{¶ 23} Finally, the trial court improperly considered gross sexual imposition as a lesser included offense of statutory rape under R.C. 2907.02(A)(1)(b), which is unconstitutionally vague when applied against an offender who is under the age of 13 at the time of the alleged misconduct.

In re D.B. , 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528, syllabus. We acknowledge that gross sexual imposition may be a lesser included offense to statutory rape. State v. Lynch , 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶¶ 83-86. Consideration of the lesser included offense is required, however, "only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense." Ohio v. Thomas , 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two of the syllabus.

{¶ 24} The evidence introduced in this case demonstrated that the child performed fellatio on T.W. Rape is defined in terms of a person engaging in sexual conduct with another, which is further defined to include vaginal or anal penetration, cunnilingus, or fellatio. R.C. 2907.01(A). Gross sexual imposition is defined in terms of sexual contact, meaning the touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person. R.C. 2907.01(B). The acts of rape do not constitute acts of gross sexual imposition. State v. Hlavsa , 8th Dist. Cuyahoga No. 93810, 2011-Ohio-3379, 2011 WL 2650944, ¶ 21, citing State v. Johnson , 36 Ohio St.3d 224, 522 N.E.2d 1082 (1988) ; State v. Reid , 8th Dist. Cuyahoga No. 83206, 2004-Ohio-2018, 2004 WL 859172.

{¶ 25} A defendant is not entitled to seek a jury instruction on the lesser included offense of gross sexual imposition when the evidence indicates that a rape occurred. Lynch at ¶¶ 83-86. In Lynch , for example, the state demonstrated that the defendant vaginally penetrated the victim. Id. The defendant sought an instruction on gross sexual imposition, arguing that the jury could find that no penetration occurred when the defendant kissed and touched the victim's genitals. Id. The defendant, however, confessed to investigating officers that there was slight penetration. Id. In light of that evidence, the Ohio Supreme Court concluded that the lesser included offense of gross sexual imposition was not supported by the evidence. Id. Thus, although it is conceivable that some sexual contact could occur in facilitating the sexual conduct, there must be evidence of the sexual contact. Acts constituting sexual conduct are not considered acts constituting sexual contact. To hold otherwise would invalidate every case in which a defendant was denied the opportunity to have the trier of fact consider gross sexual imposition during a rape trial for the want of evidence establishing sexual contact. See, e.g., Lynch .

{¶ 26} In this case, the only evidence presented involved allegations of the child performing fellatio on T.W., generally defined as a "sexual act in which the mouth or lips come into contact with the penis." State v. Warman , 12th Dist. Butler No. CA2016-02-029, 2017-Ohio-244, 2017 WL 283422, ¶ 36, citing State v. Vansickle , 12th Dist. Fayette No. CA2013-03-005, 2014-Ohio-1324, 2014 WL 1356681, ¶ 88 ; State v. Carson , 8th Dist. Cuyahoga No. 103286, 2016-Ohio-1126, 2016 WL 1071438, ¶ 18. There was no evidence demonstrating any form of sexual contact, as defined under R.C. 2907.01(B). The state presented an all-or-nothing case for rape as defined under R.C. 2907.01(A)(1)(b), and in this case, consideration of gross sexual imposition as a lesser included offense of statutory rape was improper. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, at ¶ 86. Since the trial court acquitted T.W. of statutory rape and there was no evidence demonstrating any sexual contact having occurred, the adjudication of delinquency for acts constituting gross sexual imposition cannot be sustained.

{¶ 27} As a result of the foregoing, we reverse and the case is remanded to the trial court to vacate the delinquency adjudication.

LARRY A. JONES, SR., J., CONCURS;

EILEEN T. GALLAGHER, P.J., DISSENTS WITH SEPARATE OPINION

{¶ 28} I respectfully dissent because I believe T.W.'s delinquency adjudication is supported by sufficient evidence and is not against the manifest weight of the evidence. I also believe T.W.'s hearsay statements were admissible under Evid.R. 807.

{¶ 29} For clarity's sake, it should be mentioned that T.W. raised the following five assignments of error:

1. The trial court erred to the prejudice of T.W. when it allowed [Mother] to testify regarding behaviors of J.W. that she believed were not normative or that were evidence of sexual abuse without establishing that [Mother] had the requisite knowledge to identify such behaviors or their relation to sexual abuse and without a state expert to do so.
2. The trial court erred to the prejudice of T.W. when it permitted into evidence hearsay statements of J.W. contrary to Evid.R. 807.
3. The trial court's conviction of forcible rape and kidnapping lacked evidentiary support and was contrary to both the sufficiency and manifest weight of the evidence.
4. The trial court erred in convicting T.W. of gross sexual imposition, which is constitutionally vague, is not a lesser included offense of statutory rape in these circumstances, and which is contrary to both the sufficiency and manifest weight of the evidence.
5. The trial court failed to merge allied offenses of similar import.

The majority's decision to reverse the trial court's judgment is based primarily on the third assignment since the majority believes the evidence presented at the adjudicatory hearing was inadequate to sustain T.W.'s delinquency adjudications.

{¶ 30} However, before addressing the manifest weight and sufficiency arguments, the evidentiary issues in the case should be addressed in order to avoid confusing the evidentiary questions under Evid.R. 807 with the state's burden of proof at the adjudicatory hearing. T.W. argues in the second assignment of error that the trial court erred in allowing witnesses to testify about out-of-court statements J.W. made regarding the abuse. The trial court concluded that J.W.'s statements were admissible under Evid.R. 807 after holding an evidentiary hearing exclusively on that issue.

{¶ 31} It is important to note that we review the trial court's decision to admit hearsay under Evid.R. 807 for an abuse of discretion. State v. Singleton , 8th Dist. Cuyahoga, 2016-Ohio-4696, 69 N.E.3d 118, ¶ 21. When applying the abuse of discretion standard, a reviewing court may not substitute its judgment for that of the trial court. Vannucci v. Schneider , 8th Dist. Cuyahoga, 2018-Ohio-1294, 110 N.E.3d 716, ¶ 22.

{¶ 32} Under Evid.R. 807, an out-of-court statement made by a child who is under 12 years of age at the time of trial describing any sexual act performed by, with, or on the child is not excluded as hearsay where (1) the child's testimony is not reasonably obtainable by the proponent of the statement, (2) there is independent proof of the sexual act, and (3) the court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted pursuant to the rules providing the general hearsay exceptions. Evid.R. 807(A) ; Singleton at ¶ 21.

{¶ 33} The majority found that J.W.'s hearsay statements failed to meet the requirements for admissibility under Evid.R. 807 because there was no independent proof of the sexual act. Notably, the trial court found that "J.W.'s clinginess, outbursts of anger, and disturbed sleep" provided independent proof of sexual assault. I agree with the majority that these behaviors, by themselves, are not enough to establish independent proof, particularly in the absence of expert testimony to explain their significance. The record nevertheless contains independent proof of sexual abuse beyond the alleged changes in J.W.'s behavior.

{¶ 34} J.W.'s knowledge of the appearance and functioning of male sexual organs is enough to satisfy the independent proof requirement of Evid.R. 807. Shannon Sneed ("Sneed"), a social worker with CCDCFS, testified at the Evid.R. 807 evidentiary hearing that she interviewed J.W. approximately two weeks after J.W. disclosed the abuse to her parents. Sneed questioned J.W. by herself in the kitchen of her home while her parents waited in the basement. Regarding the interview, Sneed testified, in part:

Then I said, why did she go to the hospital? And she said that [T.W.] makes her suck him. And at that point I got a forensic drawing of a male and asked her where she sucked and she said - she pointed to the penis and said she put her mouth on that part of the body.
* * *
She said that they go in the basement and he pulls his pants down and she sucks him. She said this happened five to seven times, but she couldn't remember exactly how many. And she said that it always happens in the basement. And she also said that he told her not tell anyone, but she wanted - but she told her family anyway.

(Sept. 21, 2016 tr. 105.)

{¶ 35} Sneed explained there are five factors she considers in making a disposition on allegations of sexual abuse and that there are three possible dispositions. A disposition is "unsubstantiated" if there is no evidence that the abuse or neglect occurred. A disposition is "substantiated" if there is medical evidence, such as DNA evidence, to substantiate the allegations. In this case, Sneed determined that J.W.'s allegations were "indicated," meaning that although there was no medical evidence corroborating the claims, the allegations were reported consistently, and the victim was credible. (Sept. 21, 2016 tr. 109-110.)

{¶ 36} With respect to the factors considered in making a disposition, Sneed explained:

There are five key factors that we base our disposition on. There is access, the access that the alleged perpetrator has to the victim. Number two is strategy for enticement or force, does it match up with what the victim is saying. Three, secrecy. Whether or not the alleged perpetrator told the victim not to tell anyone or threatened him or her in any way. Number four is the detail of the disclosure that the victim is able to provide. And five is the social context of what the child is describing.

(Sept. 21, 2016 tr. 108-109.)

{¶ 37} Applying these factors, Sneed explained that T.W. had access to J.W. because they were unsupervised in the basement of their home. T.W.'s strategy was to take advantage of the unsupervised access in the basement. Sneed found the secrecy factor was met because T.W. instructed J.W. not to tell anyone. Although J.W. was only five years old, she provided a detailed account of the abuse. And finally, Sneed found it plausible that the abuse occurred in the basement because they were left unsupervised in the basement for periods of time. (Sept. 21, 2016 tr. 105.)

{¶ 38} In addition to Sneed's testimony, Officer Patterson testified that during his investigation, he asked J.W. if anything came out of [T.W.] while she was sucking, and she told him that "[T.W.] peed." (Sept. 21, 2016 tr. 81.) Thus, although J.W. was only five years old, she demonstrated an awareness of the appearance and sexual function of male genitalia that was not appropriate for her age.

{¶ 39} Furthermore, there was no evidence that J.W. had a motive to lie or to fabricate accusations against T.W., and J.W. spontaneously reported the abuse to her parents. A five-year-old child could not spontaneously tell her parents that her brother made her suck his penis, describe the act with detail, and know the sexual function of the penis unless she had a sexual experience with it. Therefore, I believe this evidence was sufficient independent proof of a sexual act.

{¶ 40} I also disagree with the majority's conclusion that the adjudications finding T.W. delinquent of rape and kidnapping were not sustained by sufficient evidence and were against the manifest weight of the evidence.

{¶ 41} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 12. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 42} In contrast to sufficiency, "weight of the evidence involves the inclination of the greater amount of credible evidence." State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). While "sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the evidence addresses the evidence's effect of inducing belief." State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387, 678 N.E.2d 541. "In other words, a reviewing court asks whose evidence is more persuasive - the state's or the defendant's?" Id. The reviewing court must consider all the evidence in the record, the reasonable inferences, and the credibility of the witnesses to determine " 'whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

{¶ 43} T.W. was adjudicated delinquent for having committed an act that would constitute kidnapping in violation of R.C. 2905.01(A)(4), if committed by an adult. R.C. 2905.01(A)(4), provides, in relevant part:

No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen * * *, by any means, shall * * * restrain the liberty of the other person, * * * [t]o engage in sexual activity, as defined in [ R.C. 2907.01 ], with the victim against the victim's will[.]

T.W. argues there was no evidence that T.W. either removed J.W. to the basement or restrained her liberty for the purposes of engaging in sexual activity. He asserts the only evidence was that T.W. asked J.W. to perform the activity.

{¶ 44} However, the force and violence necessary to commit the crime of rape depends upon the age, size, and strength of the parties, and their relation to each other. Ohio v. Eskridge , 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), paragraph one of the syllabus. Ohio courts have held that proof of physical restraint is not required in cases involving the rape of small children where the child's liberty may be restrained through the inherent social or psychological pressures of a "trusted family member" who is "bigger and older than the child." State v. May , 8th Dist. Cuyahoga No. 94075, 2010-Ohio-5841, 2010 WL 4892815, ¶ 19 ; see also State v. Weems , 8th Dist. Cuyahoga No. 102954, 2016-Ohio-701, 2016 WL 763101, ¶ 25. Therefore, the lack of physical restraint, by itself, does not establish insufficient evidence of kidnapping in this case.

{¶ 45} T.W. was adjudicated delinquent of rape in violation of R.C. 2907.02(A)(1), which states that "[n]o person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force." R.C. 2907.01(A) defines "sexual conduct" as including fellatio. As previously stated in relation to kidnapping, the physical force element of rape need not be overt because a small child can be overcome by subtle, psychological forces. Eskridge at 58-59, 526 N.E.2d 304. Although T.W. was not J.W.'s father, he was older and had significantly more power than J.W.

{¶ 46} In State v. Dye , 82 Ohio St.3d 323, 329, 695 N.E.2d 763 (1998), the Ohio Supreme Court held that "a person in a position of authority over a child under thirteen may be convicted of rape of that child with force * * * without evidence of express threat of harm or evidence of significant physical restraint." In reaching this conclusion, the court explained that "a child cannot be found to have consented to rape." Id. at 327, 695 N.E.2d 763.

{¶ 47} J.W. told Mother and Nakita Heard that T.W. wanted her to "suck him" and that she complied with his request. Because J.W. was only five years old, she was incapable of consenting to sexual conduct. Therefore, there was sufficient evidence that T.W. engaged in conduct that would be considered rape and kidnapping, if committed by an adult.

{¶ 48} And T.W.'s rape and kidnapping convictions are not against the manifest weight of the evidence. As previously stated, J.W. had no reason to fabricate the allegations of abuse and she reported the abuse spontaneously. Additionally, J.W.'s descriptions of the abuse were consistent every time she reported them. Nakita Heard, a social worker who interviewed J.W. at University Hospitals the day she reported the abuse to her parents, testified at the adjudicatory hearing about J.W.'s description of the abuse. She testified, in relevant part:

When she was telling me that he told her to suck it, she stood up and she pointed to her genitalia area and like pointing like he told me to suck it, and she stood up and pointed to that area.

{¶ 49} The consistency with which J.W. reported the abuse to her parents and health care providers at University Hospitals coupled with her spontaneous report of the abuse makes J.W.'s hearsay account of the abuse very credible. Moreover, there was no motive for this five-year-old girl to falsely accuse her brother of wrongdoing.

Therefore, I would find the delinquency adjudications are not against the manifest weight of the evidence, and I would affirm the delinquency adjudications.

      The state also references R.C. 2151.35(F) as a basis to admit the out-of-court statements made by the victim. "R.C. 2151.35(F) is inconsistent with Article VIII of the Ohio Rules of Evidence and, as such, has no force or effect."In re Coy , 67 Ohio St.3d 215, 616 N.E.2d 1105 (1993), paragraph one of the syllabus. Evid.R. 807 is the exclusive mechanism for the admissibility of out-of-court statements by a child under the age of 12 at the time of the trial or hearing.

      The dissent's reliance on Sneed's testimony as establishing the independent proof of the sexual act is misplaced. Sneed's assessment of the child's veracity cannot be a basis to affirm the adjudication. The child's veracity cannot be bolstered by another witness. Boston , 46 Ohio St.3d 108, 545 N.E.2d 1220, at syllabus. Further, as the dissent concedes, the conclusion that the state presented "independent proof" of the sexual act is entirely dependent on the child's statements describing the act in detail, statements that are not admissible without independent proof of the sexual act. The child's statements accurately describing the sexual acts of fellatio that form the basis of the charges do not constitute independent proof of the sexual act having occurred - those are still the child's statements "describing any sexual act performed by, with, or on the child * * *" that are precluded unless the state presents independent proof of the sexual act. Evid.R. 807(A).


source: Caselaw Access Project

author: Baldwin, J.

license: Public Domain

text:
    G. Grant GATSCHET, II, Plaintiff-Appellant v. WEST MANOR DEVELOPMENT GROUP, LLC, et al., Defendants-Appellees
    No. 2018CA00008
    Court of Appeals of Ohio, Fifth District, Stark County.
    DATE OF JUDGMENT: August 20, 2018
    BRIAN L. ZIMMERMAN, B. Zimmerman Law, 229 Third Street, NW, Canton, Ohio 44702, For Plaintiff-Appellant
    WM. SCOTT FOWLER, Comstock, Springer & Wilson Co., LPA, 100 Federal Plaza East, Suite 926, Youngstown, Ohio 44503-1811, For Defendant-Appellee Central Commons Homeowners Association
    JUDGES: Hon. William B. Hoffman, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
   Baldwin, J.

{¶ 1} Plaintiff-appellant G. Grant Gatschet, II appeals from the December 28, 2017 Judgment Entry of the Stark County Court of Common Pleas granting the Motion for Summary Judgment filed by defendant-appellee Central Commons Condominium Homeowners Association ("Central Commons").

STATEMENT OF THE FACTS AND CASE

{¶ 2} Appellant G. Grant Gatschet, II moved into his mother's condominium known as Central Commons in 2011. He and his mother usually exited and entered the condo through the garage, but appellant occasionally used the sidewalk leading to the front door of the condo. On April 3, 2015, appellant was using the front sidewalk to either take something to his car or retrieve something from his car when he tripped and fell. He used the same route when he went out to his car initially as when he was going back to the unit. When asked what happened, he testified that "I think my foot just got caught on the concrete." Appellant's Deposition at 93. According to him, the sidewalk was not level, which caused him to trip and fall. At the time of his fall, it was raining. Appellant testified that he was walking at a normal pace, that he was not carrying anything, and that he was not distracted as he was going back to the condo.

{¶ 3} Prior to his fall, appellant had not personally talked to anyone connected with the homeowner's association about the condition of the sidewalk outside his mother's condo unit and did not notice "much of anything" about the front sidewalk other than it was aging. Appellant's Deposition at 87. He was unaware of any problems with the sidewalk prior to his fall. He had never tripped on the sidewalk before and did not know if anyone else had. The following is an excerpt from appellant's deposition testimony:

{¶ 4} Q: All right. You did tell me previously, unless I misinterpreted something you said, that if you had things you were carrying directly up to your bedroom, you would go up and down the sidewalk?

{¶ 5} A: That's correct.

{¶ 6} Q: Okay. And in any of the previous times when you carried things from the driveway up to your bedroom, had you noticed any problems with the sidewalks? Did you see any cracks, any deviation in height, or anything like that?

{¶ 7} A: I did not notice anything.

{¶ 8} Appellant's Deposition at 87.

{¶ 9} After his fall, appellant took pictures of the sidewalk.

{¶ 10} In November of 2014, Central Common had had sent a newsletter to condo unit owners, stating, in relevant part, as follows:

The Board is repairing the sidewalks that are uneven at the present time. This work will be done within the next week or two. Unit's getting repaired at this time will be 1311, 1313, 1315, 1321, 1323, 1325, 1406 and 1420. This work will help with getting the sidewalks leveled and being safe.

{¶ 11} Appellant's unit was listed as one of the units to receive the repairs. Appellant testified that, to his knowledge, he had not seen the newsletter before, but acknowledged that he and his mother previously had received copies of the newsletters from appellee Central Commons at their unit. In the affidavit attached to his memorandum in opposition to the Motion for Summary Judgment, he stated that he had never seen the newsletter.

{¶ 12} On March 29, 2017, appellant filed a complaint against appellee Central Commons Condominium Homeowners Association and West Manor Development, the owner, manager and/or operator of the condominium development. Appellant filed an amended complaint adding Harry W. Giltz, II, Harry W. Giltz, III and Grant Giltz as defendants on April 20, 2017. He alleged that the three new defendants were owners /operators of appellee Central Commons.

{¶ 13} West Manor Development Group LLC filed an answer to the complaint on April 27, 2017. West Manor Development Group LLC and Harry W. Giltz II, Harry W. Giltz III and Grant Giltz filed an answer to the amended complaint on May 17, 2017. Appellee Central Commons Condominium Homeowners Association filed an answer to the amended complaint on May 25, 2017.

{¶ 14} On July 11, 2017, appellant filed a voluntary dismissal with prejudice of West Manor Development Group LLC and, on July 17, 2017, filed a voluntary dismissal with prejudice of Harry W. Giltz, II, Harry W. Giltz, III and Grant Giltz.

{¶ 15} Thereafter, on November 21, 2017, appellee Central Commons filed a Motion for Summary Judgment. Appellant filed a memorandum in opposition to the motion on November 21, 2017 and appellee Central Commons filed a reply on December 8, 2017.

{¶ 16} The trial court, as memorialized in a Judgment Entry filed on December 28, 2017, granted the Motion for Summary Judgment. The trial court found that the condition of the sidewalk was "an open and obvious condition that was readily observable" by appellant and also that appellant's claim was barred by the two-inch rule.

{¶ 17} Appellant now appeals, raising the following assignment of error on appeal:

{¶ 18} "I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT CENTRAL COMMONS HOMEOWNERS ASSOCIATION."

SUMMARY JUDGMENT STANDARD

{¶ 19} Civil Rule 56(C), in reviewing a motion for summary judgment, provides, in pertinent part, as follows:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed mostly strongly in the party's favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

{¶ 20} A trial court should not enter a summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts. Hounshell v. Am. States Ins. Co. , 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc. , 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the applicable substantive law. Russell v. Interim Personnel, Inc. , 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist. 1999).

{¶ 21} When reviewing a trial court's decision to grant summary judgment, an appellate court applies the same standard used by the trial court. Smiddy v. The Wedding Party, Inc. , 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter de novo. Doe v. Shaffer , 90 Ohio St.3d 388, 738 N.E.2d 1243 (2000).

{¶ 22} The party moving for summary judgment bears the initial burden of informing the trial court of the basis of the motion and identifying the portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the non-moving party's claim. Dresher v. Burt , 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). Once the moving party meets its initial burden, the burden shifts to the non-moving party to set forth specific facts demonstrating a genuine issue of material fact does exist. Id. The non-moving party may not rest upon the allegations and denials in the pleadings, but instead must submit some evidentiary materials showing a genuine dispute over material facts. Henkle v. Henkle , 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).

I

{¶ 23} Appellant, in his sole assignment of error, contends that the trial court erred in granting the Motion for Summary Judgment filed by appellee Central Commons. We disagree.

{¶ 24} The issue in this case is whether Central Commons was negligent. In order to establish a claim for negligence, a plaintiff must show: (1) a duty on the part of defendant to protect the plaintiff from injury; (2) a breach of that duty; and (3) an injury proximately resulting from the breach. Jeffers v. Olexo , 43 Ohio St.3d 140, 539 N.E.2d 614 (1989).

{¶ 25} There is no dispute between the parties that on April 3, 2015, appellant was an invitee. An invitee is a person who rightfully enters and remains on the premises of another at the express or implied invitation of the owner and for a purpose beneficial to the owner. Carpenter v. Mount Vernon Gateway, Ltd. , 5th Dist. Knox No. 13CA6, 2014-Ohio-465, 2014 WL 548166. The owner or occupier of the premises owes the invitee a duty to exercise ordinary care to maintain its premises in a reasonably safe condition, such that its invitees will not unreasonably or unnecessarily be exposed to danger. Paschal v. Rite Aid Pharmacy, Inc. , 18 Ohio St.3d 203, 480 N.E.2d 474 (1985). A premises owner must warn its invitees of latent or concealed dangers if the owner knows or has reason to know of the hidden dangers. Id. However, a premises owner is not an insurer of its invitees' safety against all forms of accident that may happen. Id. Invitees are expected to take reasonable precautions to avoid dangers that are patent or obvious. Sidle v. Humphrey , 13 Ohio St.2d 45, 233 N.E.2d 589 (1968).

OPEN & OBVIOUS

{¶ 26} As is stated above, under Ohio law, a business owner owes no duty to protect an invitee from dangers that are known to the invitee or are so obvious and apparent to the invitee that he or she may be reasonably expected to discover them and protect him or her against them. Sidle v. Humphrey , 13 Ohio St.2d 45, 233 N.E.2d 589 (1968).

{¶ 27} In Armstrong v. Best Buy Company, Inc. , 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, the Ohio Supreme Court found a premises owner owes no duty to persons entering the premises regarding dangers that are open and obvious. The rationale of the open and obvious doctrine is that the open and obvious nature of the hazard itself serves as a warning, so that owners reasonably may expect their invitees to discover the hazard and take appropriate measures to protect themselves against it. Simmers v. Bentley Constr. Co. , 64 Ohio St.3d 642, 597 N.E.2d 504 (1992). Therefore, when a danger is open and obvious, a premises owner owes no duty of care to individuals lawfully on the premises. Armstrong v. Best Buy Co., Inc. , 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088. When applicable, the open and obvious doctrine obviates the duty to warn and acts as a complete bar to any negligence claim.

Aycock v. Sandy Valley Church of God , 5th Dist. Tuscarawas No. 2006AP090054, 2008-Ohio-105, 2008 WL 115829.

{¶ 28} The law uses an objective, not subjective, standard when determining whether a danger is open and obvious. Freeman v. Value City Dept. Store , 5th Dist. Stark No. 2010 CA 00034, 2010-Ohio-4634, 2010 WL 3766806. The fact that a particular appellant himself or herself is not aware of the hazard is not dispositive of the issue. Id. It is the objective, reasonable person that must find the danger is not obvious or apparent. Id. The determinative issue is whether the condition is observable. Aycock v. Sandy Valley Church of God , 5th Dist. Tuscarawas No. 2006AP090054, 2008-Ohio-105, 2008 WL 115829.

{¶ 29} The trial court found, and we agree, that the condition of the sidewalk was open and obvious. During his deposition, appellant testified that he was not carrying anything or otherwise distracted when he fell. He further testified that he had walked on the same sidewalk when going from his car to the condo and did not have any problems and that he noticed the uneven sidewalk after he fell.

{¶ 30} As is stated above, the trial court also found that appellant's claim was barred by the two-inch rule. The Ohio Supreme Court has declined to hold property owners and occupiers liable as a matter of law for injuries due to minor or trivial imperfections that were not unreasonably dangerous, are commonly encountered, and to be expected. In Kimball v. Cincinnati , 160 Ohio St. 370, 116 N.E.2d 708 (1953), the Ohio Supreme Court held that a height variation in pavement levels less than two inches is a slight defect as a matter of law that precludes a finding of negligence. In Helms v. American Legion, Inc. , 5 Ohio St.2d 60, 213 N.E.2d 734 (1966), the Ohio Supreme Court reaffirmed its holding in Kimball and extended the two-inch rule to privately owned or occupied properties.

{¶ 31} In Cash v. Cincinnati , 66 Ohio St.2d 319, 421 N.E.2d 1275 (1981), the Ohio Supreme Court again reviewed the two-inch rule. The Court clarified the two-inch rule and stated courts must also consider any attendant circumstances in determining whether liability exists for trivial defects. Thus, in Cash , the Ohio Supreme Court established that a height difference of two inches or less is insubstantial as a matter of law, unless attendant circumstances are shown to elevate the defect to an unreasonably dangerous condition. Id.

{¶ 32} There is no precise definition of attendant circumstances. Mulcahy v. Best Buy Stores, LP , 5th Dist. Delaware No. 13CAE060051, 2014-Ohio-1163, 2014 WL 1340657. Attendant circumstances are factors that contribute to a fall and are beyond the injured person's control. Id. The analysis of attendant circumstances also uses an objective test and the court should not consider the particular actions of the parties in the case. Id. Attendant circumstances do not include any circumstances existing at the moment of a fall, unless the individual was distracted by an unusual circumstance created by the property owner. Id.

{¶ 33} As noted by the court in Long v. Speedway, L.L.C. , 2nd Dist. Montgomery No. 26851, 2016-Ohio-3358, 2016 WL 3219642, ¶ 10 :

"Attendant circumstances" have not been and probably cannot be precisely defined, but the term has been held to include any distraction that would come to the attention of a pedestrian in the same circumstances and reduce the degree of care an ordinary person would exercise at the time. "Both circumstances contributing to and those reducing the risk of the defect must be considered. The totality of the circumstances of each case must be examined to determine if, as a whole, they create a substantial defect." Stockhauser [v. Archdiocese of Cincinnati , 97 Ohio App.3d 29], at 33 [646 N.E.2d 198 (2d Dist. 1994) ], citing France v. Parliament Park Townhomes, 2d Dist. Montgomery No. 14264, 1994 WL 151658 (Apr. 27, 1994). To render a minor defect substantial, attendant circumstances must not only be present, but must create "a greater than normal, and hence substantial, risk of injury." Id. , citing Turner v. Burndale Gardens Co., 2d Dist. Montgomery No. 12807, 1991 WL 270662 (Dec. 18, 1991). The attendant circumstances must, taken together, divert the attention of the pedestrian, significantly enhance the danger of the defect, and contribute to the injury. Id., citing France, Turner, and others.

{¶ 34} In the case sub judice, as noted by the trial court "the evidence is undisputed that the uneven portion of the sidewalk where [appellant] claims to have fallen is less than two inches..." Appellant asserts that the two-inch rule was rebutted by attendant circumstances in this case. Appellant specifically contends that the admission of appellee Central Commons in its newsletter that it knew of the condition of the sidewalk and was planning on repairing the same and that a photograph taken by appellant after his fall that, according to appellant, show that the defect was not readily observable from a standing position, are attendant circumstances.

{¶ 35} However, we find that the above are not attendant circumstances because they are not circumstances that "divert the attention of the pedestrian, significantly enhance the danger of the defect, and contribute to the injury." As noted by the trial court, appellant has not identified any evidence of attendant circumstances "to elevate the defect in the sidewalk to an unreasonably dangerous condition." Appellant testified that he was not carrying anything when he fell and was not otherwise distracted and that he had walked on the same sidewalk when going from his car to the condo and did not have any problems.

{¶ 36} Based on the foregoing, we find that the trial court did not err in granting the Motion for Summary Judgment filed by appellee Central Commons Condominium Homeowners Association.

{¶ 37} Appellant's sole assignment of error is, therefore, overruled.

{¶ 38} Accordingly, the judgment of the Stark County Court of Common Pleas is affirmed.

Hoffman, P.J. and Delaney, J., concur.