State v. LoweState v. Lowe
- Reporters:
- Before:
- Edwards, Boggins, Hoffman
OPINION
{¶ 1} Defendant-appellant Paul Lowe appeals his conviction and sentence from the Stark County Court of Common Pleas on one count of sexual battery. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶ 2} On April 9, 2004, the Stark County Grand Jury indicted appellant on one count of sexual battery in violation of
{¶ 3} Thereafter, on June 18, 2004, appellant filed a Motion to Dismiss, arguing that the facts alleged in the indictment, even if proven, did not constitute an offense under
{¶ 4} Subsequently, on July 1, 2004, appellant entered a plea of no contest to one count of sexual battery. As memorialized in a Judgment Entry filed on August 18, 2004, appellant was sentenced to one hundred twenty (120) days in jail and was placed on three years of community control under specified terms and conditions. In addition, the trial court classified appellant as a sexually oriented offender and ordered him to have no contact with his victim.
{¶ 5} Appellant now raises the following assignments of error on appeal:
{¶ 6} “I. THE TRIAL COURT ERRED BY RULING THAT
{¶ 7} “II. THE TRIAL COURT ERRED BY FAILING TO DISMISS THE INDICTMENT AS BEING UNCONSTITUTIONAL AS APPLIED IN THIS CASE.”
I
{¶ 8} Appellant, in his first assignment of error, argues that the trial court erred in holding that
{¶ 9}
{¶ 10} Under a statutory analysis, the paramount goal is to ascertain and give effect to the legislature‘s intent in enacting the statute. Brooks v. Ohio State Univ. (1996), 111 Ohio App.3d 342, 349, 676 N.E.2d 162. In so doing, however, the court must first look to the plain language of the statute itself to determine the legislative intent. Burrows v. Indus. Comm., 78 Ohio St.3d 78, 81, 1997-Ohio-310, 676 N.E.2d 519; In re Collier (1993), 85 Ohio App.3d 232, 237, 619 N.E.2d 503. Thus, if the language used in a statute is clear and unambiguous, the statute must be applied as written and no further interpretation is necessary. Burrows at 81. “It is only where the words of a statute are ambiguous, uncertain in meaning, or conflicting that a court has the right to interpret a statute.” Brooks at 349.
{¶ 11} As noted by the court in State v. Hargrove, Hamilton App. No. C-810352, 1982 WL 4697, ”
{¶ 12} Based on the foregoing, appellant‘s first assignment of error is overruled.
II
{¶ 13} Appellant, in his second assignment of error, contends that the trial court erred in failing to dismiss the indictment against appellant since
{¶ 14} As for the constitutionality of
{¶ 15} Appellant specifically contends that
{¶ 16} However, appellant does not have a constitutionally protected right to engage in sex with his stepdaughter. In State v. Benson (1990), 81 Ohio App.3d 697, 612 N.E.2d 337, the court held that
{¶ 17} “Furthermore, the Act is not unconstitutional as applied to appellant. The fact that appellant was not permitted to assert the defense that Bretta [the stepdaughter] consented to the sexual conduct did not make the Act unconstitutional as it applied to him since no fundamental constitutional right exists to engage in such conduct.” Id. at 701. See also State v. Freeman, 155 Ohio App.3d 492, 2003-Ohio-6730, 801 N.E.2d 906, in which the court held that the appellant did not have a constitutionally protected right to engage in incest with his consenting adult daughter and that
{¶ 18} Based on the foregoing, appellant‘s second assignment of error is overruled.
{¶ 19} Accordingly, the judgment of the Stark County Court of Common Pleas is affirmed.
Edwards, J., Boggins, P.J. and Hoffman, J. concur.
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to appellant.