382 N.E.2d 1171 | Ohio Ct. App. | 1978
Defendant-appellant Carl Brand (defendant) was indicted on three counts of gross sexual imposition (R. C.
The convictions arose out of incidents on October 8 and 9, 1975. Complainants Barbara Engle, Linda Marcella, and Angie Bell were all under the age of 13 at that time. This is the undisputed evidence:
On October 8, 1975, at about 4 p. m., the defendant approached Angie and Barbara at their school playground. He spoke to Angie and then sat on the edge of the slide. When Barbara slid down, he held her by the thigh and said, "Get a little closer." A few minutes later, Barbara told Angie that she wanted to go home and the two girls left.
The next afternoon, Angie and Linda were walking to Angie's house when the defendant called to them from the porch of his house. He made verbal advances to the girls and told them to come over. When they refused, he *272 came down to the sidewalk. He grabbed Linda by the breast. He also grabbed Angie by the thigh. Linda pulled Angie loose and they ran away. Angie's mother then called the police.
The record reveals that defendant and the complainants lived in the same neighborhood. The girls had occasionally talked with defendant when they passed his house on the way to school. Barbara testified that the defendant usually looked like he had been drinking and that he appeared to be drunk on October 8.
The police arrested defendant at his home on October 9, 1975. His attitude was very casual and he did not seem to recognize the seriousness of the offense which caused his arrest.
The trial court sentenced the defendant to 3-10 years on each count, with the sentences to be served consecutively. Defendant filed a timely appeal and assigned three errors.
Assignment of Error No. I:
"The Misconduct of the Prosecutor Denied Appellant a Fair Trial."
This assignment is based on two comments made by the prosecutor to the jury during closing arguments:
"* * * But it is my opinion that those acts [by the defendant] were of a very serious nature and that in fact the law in the State of Ohio is designed to protect the people from just exactly the kind of conduct that I believe we have proven beyond a reasonable doubt took place in this instance.
"I believe that the law is intended to protect the integrity of young girls' bodies from even a mere touching. * * * I don't think there is any doubt that those young girls were telling the truth." (Bracketed material added.)
Appellant contends initially that the last sentence prejudiced defendant's right to a fair trial because it was an expression of the prosecutor's personal belief on the issue of guilt.
The purpose of closing arguments is to aid the jury in analyzing the evidence that has been presented to them, State v.Cloud (1960),
One such extraneous issue is whether the prosecutor personally believes the defendant to be guilty. A comment to this effect is improper because it may lead the jury to speculate that the prosecutor is basing his opinion on additional information not brought out at trial, State v. Conrad (1969),
"* * * In those instances where personal opinions of guilt are predicated upon the evidence, though frowned upon, they arenot deemed to be prejudicially erroneous. Where opinions are expressed on facts outside the evidence, or are predicated on inferences based upon facts outside the evidence, such opinions have not been countenanced and the judgments in those cases have been reversed upon appeal." (Emphasis added.) State v.Stephens (1970),
In the instant case, the prosecutor did err in saying that he believed that the complainants had told the truth. The inference of such a comment is, of course, that the defendant was guilty. Under the rule of State v. Stephens, id., the error was not prejudicial because the prosecutor proceeded to make specific reference to the testimonv of the witnesses. This testimony was unrebutted.
Appellant's second contention is that the prosecutor improperly called for a conviction to vindicate the general interests of society when he stated that the law was intended to "* * * protect the integrity of young girls' bodies. * * *"
In State v. Carver (1971),
"* * * Did the remarks of the assistant prosecutor naturally *274 induce the jury to judge the case by considerations not presented in, or suggested by, the evidence? The remarks of the prosecuting attorney must be prejudicial to the defendant in order to be made the basis for a new trial. * * *"
The prosecutor's comment here was not such that it would "naturally induce" the jury to render a judgment based on outside factors. This conclusion is supported by the fact that the trial court gave a cautionary instruction to the jury both before and after the arguments that remarks of counsel were not evidence. On the basis of these facts, the comments did not constitute reversible error.
Assignment of Error No. I is not well taken.
Assignment of Error No. II:
"Appellant's Sentence Violates the Cruel and Unusual Punishment Clause."
One may solidly disapprove of sexual advances to children without justifying the possible 30-year sentence imposed in this case, see Coker v. Georgia (1977),
R. C.
On its face, this statutory scheme violates the Equal Protection Clause of the United States Constitution. The constitutional infirmity lies in the fact that persons convicted of certain sex offenses are entitled to pre-sentence psychiatric examination while other sex offenders do not have this right. We can perceive no rational basis for the distinction.
The classification found in R. C.
Moreover, the legislative distinction is not based on the age of the victim. R. C.
It is apparent that the statute provides for disparate *276
post-conviction treatment of sex offenders without having a rational basis for the discrimination. Because the
We are mindful, however, of the principle that a court must strain to uphold the constitutionality of a statute, UnitedStates v. Harriss (1954),
In the instant case, defendant-appellant's motion for apre-trial psychiatric examination was granted. The resulting report, if any, is not contained in the record. There is no indication that the trial court reviewed and considered any such report prior to sentencing. Accordingly, the defendant's sentence is vacated and the cause is remanded to the lower court so that the defendant may be referred for psychiatric examination prior to resentencing.
Assignment of Error No. II is well taken.
Assignment of Error No. III:
"Ohio Revised Code §
The defendant was charged and convicted under R. C.
" §
"(A) No person shall have sexual contact with another, not the spouse of the offender, when any of the following apply: * * *
"(3) The other person is less than thirteen years of age, whether or not the offender knows the age of such person."
The phrase "sexual contact" is defined in R. C.
" §
"(B) `Sexual contact' means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if such person is a female, a breast, for the purpose of sexually arousing or gratifying either person."
It is a basic tenet of Due Process that a statute must be sufficiently clear to give a person of ordinary intelligence adequate notice of the prohibited behavior, United States v.Harriss, supra at 617; Columbus v. Rogers (1975),
However, a statute that may skirt this principle will not be struck down in all factual situations. For
"* * * if the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise." United States v. Harriss, id., at 618.
The defendant argues that the phrase "erogenous zone" — Section
Assignment of Error No. III is not well-taken.
The sentence is vacated. Cause remanded for psychiatric report and re-sentencing thereafter.
Judgment reversed.
CORRIGAN, C. J., and KRENZLER, J., concur.
"(A) After conviction and before sentence, a trial court shall refer for examination all persons convicted of a violation of section
"Prior to sentence the court may refer for such examination any person who has been convicted of any felony except murder in the first degree where mercy has not been recommended, or any misdemeanor when it has been suggested or appears to the court that such person is mentally ill, or a mentally retarded offender or a psychopathic offender. * * *" *278