THE STATE OF OHIO, APPELLEE, v. DUNLAP, APPELLANT.
No. 2009-0477
Supreme Court of Ohio
August 23, 2011
129 Ohio St.3d 461, 2011-Ohio-4111
PFEIFER, J.
Submitted December 16, 2009
CUPP, J., concurs in judgment only.
Maxwell D. Kinman, for appellant.
Donald W. White, Clermont County Prosecuting Attorney, and David H. Hoffmann, Assistant Prosecuting Attorney, for appellees.
Erik L. Smith, urging reversal for amicus curiae, Erik L. Smith.
PFEIFER, J.
{¶ 1} In this case, we identify the mens rea requirement of
{¶ 2} After a jury trial, defendant-appellant, Thomas Dunlap, was convicted of two counts of gross sexual imposition involving victims under the age of 13, in violation of
{¶ 3} The court of appeals affirmed Dunlap‘s convictions, rejecting his arguments that
Sex-Offender Classification
{¶ 4} Dunlap had been indicted on July 26, 2007, on the charges upon which he eventually was convicted. He was sentenced under S.B. 10 on March 4, 2008. Dunlap argues that thе application of S.B. 10 to offenders whose crimes occurred before its effective date of January 1, 2008, violates the Ex Post Facto Clause of the United States Constitution and the Retroactivity Clause of the Ohio Constitution.
{¶ 5} In regard to Dunlap‘s sex-offender classification, this case was originally held for a decision in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753. However, having determined that this court‘s decision in Bodyke did not resolve the classification issue in Dunlap‘s case, we subsequently held this case for a decision in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. In our recent decision in Williams, we held that S.B. 10, “as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws.” Id. at syllabus.
{¶ 6} We therefore reverse that portion of the court of appeals’ judgment that upheld the application of S.B. 10 to Dunlap and remand this case to the trial cоurt for an application of Williams.
R.C. 2907.05 Issues
{¶ 7}
{¶ 8} “No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sеxual contact
{¶ 9} “* * *
{¶ 10} “(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.”
{¶ 11} Dunlap claims that the indictment failed to set forth the mens rea for the
{¶ 12} In the jury instructions regarding gross sexual imposition, the trial court instructed the jury as to the element of “sexual contact,” as defined in
{¶ 13} “Sexual contact. Sexual contact means any 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.”
{¶ 14} Dunlap concedes that
{¶ 15} Dunlap appealed his convictions to the Eighth District Court of Apрeals, which rejected his mens rea argument, holding that gross sexual imposition involving a child under the age of 13 “is a strict liability offense and requires no precise culpable state of mind. All that is required is a showing оf the proscribed sexual contact.”
{¶ 16} The cause is before this court upon the acceptance of a discretionary appeal.
{¶ 17} During the pendency of Dunlap‘s appeаl, this court overruled Colon I and overruled Colon II in part, holding that “when an indictment fails to charge a mens rea element of the crime, but tracks the language of the criminal statute describing the offense, the indictment provides the defendant with adequate notice of the charges against him and is, therefore, not defective.” State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 45. Dunlap‘s indictment tracked the language of
{¶ 18} Thеre is no question that the victim‘s age is a strict-liability element of an
{¶ 19} The parties agree that the “sexual contact” element of
{¶ 20} ” ‘Sexual contact’ means any 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 рurpose of sexually arousing or gratifying either person.”
{¶ 21} Dunlap argues that there is no stated mens rea for the “any touching” language in the first phrase of
{¶ 22} The state, on the other hand, argues that
{¶ 23} We agree with the state that the mens rea of purpose applies to the whole of
{¶ 24} “A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prоhibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.”
{¶ 25} Through the definition of sexual contact in
{¶ 26} Grammatically, the phrase “for the purpose of sexually arousing or gratifying either person” modifies “any touching of an erogenous zone of another.”
{¶ 27} The indictment here tracked the language of the charged offenses as set forth in
Conclusion
{¶ 28} Although the court of appeals affirmed the judgment of the trial court, it erred in finding that
Judgment affirmed in part and reversed in part, and cause remanded.
O‘CONNOR, C.J., and LUNDBERG STRATTON, O‘DONNELL, LANZINGER, and CUPP, JJ., concur.
MCGEE BROWN, J., not participating.
William D. Mason, Cuyahoga County Prosecuting Attorney, and T. Allan Regas, Assistant Prosecuting Attorney, for appellee.
Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellant.