State v. Dunlap
129 Ohio St. 3d 461
| Ohio | 2011Background
- Dunlap was convicted at trial of two counts of gross sexual imposition under R.C. 2907.05(A)(4) involving victims under 13 and one count of disseminating obscene matter to juveniles; he was sentenced to two years for the former counts and 16 months for the obscenity count, with Tier III sex-offender classification.
- The indictment tracked the language of R.C. 2907.05(A)(4) and stated the victims’ ages as under 13 and that the offender knew or did not know the age; the sexual-contact element was defined by R.C. 2907.01(B).
- R.C. 2907.05(A)(4) makes age a strict-liability element while the sexual-contact element requires a mens rea of purpose.
- The trial court instructed the jury on sexual-contact as defined in R.C. 2907.01(B).
- The Court remanded for application of Williams to determine proper sex-offender status and reversed the SB 10 retroactivity ruling as applied to Dunlap; the court affirmed the indictment and jury instructions on mens rea, holding the evidence satisfied the required mens rea.
- The case trajectory involved prior holdings in Bodyke and the overruled Colon I/II lines of analysis, culminating in Horner’s guidance that indictment language tracking the statute can provide adequate notice, and Williams to address retroactivity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What mens rea applies to sexual-contact element of R.C. 2907.05(A)(4)? | Dunlap: no mens rea for sexual contact; strict liability overall. | Dunlap contends lack of recklessness mens rea; indictment/instruction deficient. | Purpose (not recklessness) mens rea applies to sexual-contact element. |
| Is the indictment/instruction sufficient where it tracks R.C. 2907.05(A)(4) but omits recklessness mens rea? | Indictment tracks statute; HORNER supports adequacy. | Jury instruction should include recklessness for defects. | Indictment and instructions provided adequate notice; no structural error. |
| Whether SB 10 retroactivity issue was correctly resolved given Williams? | SB 10 retroactive application should stand. | SB 10 retroactivity constitutional. | Remand to apply Williams; SB 10 as applied to pre-enactment offenses violates Ohio Constitution. |
Key Cases Cited
- State v. Williams, 129 Ohio St.3d 344 (2011-Ohio-3374) (retroactivity under SB 10 violates Ohio Constitution)
- State v. Bodyke, 126 Ohio St.3d 266 (2010-Ohio-2424) (sex-offender classifications post-S.B. 10 require Williams analysis)
- State v. Horner, 126 Ohio St.3d 466 (2010-Ohio-3830) (indictment tracking statute can suffice for notice when mens rea omitted)
- State v. Colon I, 118 Ohio St.3d 26 (2008-Ohio-1624) (structural error analysis about mens rea in multi-clause statutes)
- State v. Colon II, 119 Ohio St.3d 204 (2008-Ohio-3749) (continued Colon framework on mens rea)