State v. MoleState v. Mole
Case Information
*1
[Cite as
State v. Mole
,
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No.98900
STATE OF OHIO
PLAINTIFF-APPELLEE vs.
MATTHEW T. MOLE
DEFENDANT-APPELLANT JUDGMENT:
REVERSED Criminal Appeal from the
Cuyahoga County Court of Common Pleas Case No. CR-557737
BEFORE: Jones, J., Stewart, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: July 18, 2013 *2 ATTORNEYS FOR APPELLANT
Richard J. Perez
Rosplock & Perez
Interstate Square Bldg. I
4230 State Route 306, Suite 240
Willoughby, Ohio 44094
John A. Fatica
The Standard Building
1370 Ontario Street
Suite 1810
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Jesse W. Canonico
Assistant County Prosecutors
The Justice Center, 8 th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Matthew Mole, appeals his conviction for sexual battery. We reverse.
I. Procedural History
{¶2}
In 2012, Mole was charged with one count of unlawful sexual conduct with a
minor in violation of
who was a police officer for the city of Waite Hill, had with 14-year-old J.S. Mole met J.S. in an online chat room; J.S. told Mole he was in high school but 18 years of age. J.S. did not know Mole was a police officer. The matter proceeded to a jury trial on the unlawful sexual conduct charge
and a bench trial on the sexual battery charge. The jury was unable to return a verdict on the unlawful sexual conduct charge so the court declared a mistrial. The trial court subsequently found Mole guilty of sexual battery, sentenced him to two years in prison, and classified him as a Tier III sex offender. The state elected not to retry Mole on the unlawful sexual conduct charge and dismissed the charge without prejudice. It is from the conviction for sеxual battery that Mole appeals, raising the
following assignments of error:
[I]. The trial court erred to the prejudice of the defendant-appellant when it denied the defendant-appellant’s motion to dismiss whereR.C. 2907.03(A)(13) is unconstitutional on its face in violation of the Fourteenth Amendment to the United States Constitution and Article I, Sections 2 and 16 of the Ohio Constitution.
[II]. Whether the trial court erred to the prejudice of the defendant-appellant when it overruled his motion to dismiss the defective indictment in violation of his right to indictment and due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.
[III]. The trial court independently erred by automatically classifying appellant as a Tier III sex offender without a hearing, pursuant to the mandate of Ohio’s Adam Walsh Act.
II. Constitutionality of
shall engage in sexual conduct with another, not the spouse of the offender when * * * the other person is a minor, the offender is a peace officer, and the offender is more than two years older than the other person.” The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution provides, “no State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” Ohio’s Equal Protection Clause, Section 2, Article I of the Ohio Constitution, states, “all political power is inherent in the people. *5 Government is instituted for their equal protection and benefit * * *.”
{¶9}
Both equal-protection provisions are functionally equivalent and require the
same analysis.
Eppley v. Tri-Valley Local School Dist. Bd. of Edn.,
{¶10}
If a statute does not implicate a fundamental right or a suspect classification,
courts employ a “rational basis” standard of review, and a statute will not violate
equal-protection principles if it is rationally related to a legitimate government interest.
Id.
at ¶ 15, citing
Menefee v. Queen City Metro,
identify a valid state interest. Second, we must determine whether the method or means
by which the state has chosen to advance that interest is rational.”
McCrone v. Bank One
Corp.
, 107 Ohio St.3d 272,
evidence to sustain the rationality of a statutory classification.”’
Pickaway Cty. Skilled
Gaming, L.L.C. v. Cordray
,
challenge; Mole is challenging the statute as a whole, not as the statute was personally
applied to him. A facial challenge to the constitutionality of a statute is decided by
considering the statute without regard to extrinsic facts.
President & Bd. of Trustees of
Ohio Univ. v. Smith
, 132 Ohio App.3d 211, 224, 724 N.E.2d 1155 (4th Dist.1999);
Cleveland Gear Co. v. Limbach
,
A. Valid State Interest
{¶15}
Therefore, in considering the first prong of the rational-basis test, we must
determine whether
officer.” Under Ohio law, a “peace officer” includes traditional police officer
categories: a sheriff, deputy sheriff, marshal, deputy marshal, municipal police officer,
metropolitan housing authority police officer, regional transit authority police officer,
state university law enforcement officer, enforcement agent of the department of public
safety, veterans’ home police officer, port authority police officer, township police
constable or officer, and airport police officer.
{¶19} Thus, while the state may have a valid interest in creating a law prohibiting sexual conduct between traditionally-defined police officers and minors because police officers are held to a higher standard than ordinary citizens, we question whether the same should be said for each classification of peace officer.
B. Rational Method or Means
{¶20}
Our greater concern is with the second prong of the test: whether the stаte’s
method or means of achieving its interest is rational.
Unlike the other subsections of the sexual battery statute,
(A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply:
(1) The offender knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinаry resolution.
(2) The offender knows that the other person’s ability to appraise the nature of or control the other person’s own conduct is substantially impaired.
(3) The offender knows that the other person submits because the other person is unaware that the act is being committed.
(4) The offender knows that the other person submits because the other person mistakenly identifies the offender as the other person’s spouse.
(5) The offender is the other person’s natural or adoptive parent, or a *9 stepparent, or guardian, custodian, or person in loco parentis of the other person.
(6) The other person is in custody of law or a patient in a hospital or other institution, and the offender has supervisory or disciplinary authority over the other person.
(7) The offender is a teacher, administrator, coach, or other person in authority employed by or serving in a school for which the state board of education prescribes minimum standards pursuant to division (D) of section 3301.07 of the Revised Code, the other person is enrolled in or attends that school, and the offender is not enrolled in and does not attend that school. (8) The other person is a minor, the offender is a teacher, administrator, coach, or other person in authority employed by or serving in an institution of higher education, and the other person is enrolled in or attends that institution.
(9) The other person is a minor, and the offender is the other person’s athletic or other type of coach, is the other person’s instructor, is the leader of a scouting troop of which the other person is a member, or is a person with temporary or occasional disciplinary control over the other person.
(10) The offender is a mental health professional, the other person is a mental health client or patient of the offender, and the offender induces the other person to submit by falsely representing to the other person that the sexual conduct is necessary for mental health treatment purposes.
(11) The other person is confined in a detention facility, and the offender is an employee of that detention facility.
(12) Thе other person is a minor, the offender is a cleric, and the other person is a member of, or attends, the church or congregation served by the cleric.
(13) The other person is a minor, the offender is a peace officer, and the
offender is more than two years older than the other person.
offender had a certain state of mind when he or she committed the crime.
[1]
minor. In each of these subsections, there is a relationship requirement or occupational
connection.
*11
{¶26}
sexual battery statute prohibiting sexual conduct between peace officers and minors, as originally introduced in the Ohio House of Representatives, did not include a relationship requirement or element. See State Senator Keith Faber’s spеech to the Ohio Senate, http://www.ohiochannel.org/medialibrary/media.aspx?fileId=117520 . The bill was subsequently amended in the Ohio Senate to include a relationship clause to make it *12 “consistent with the other sections of the sexual battery [statute] * * * based on the position of trust between the victim and the offender.” Id.
{¶29}
But the relationship language was subsequently removed by amendment in
the Ohio Senate because the bill’s sponsor was concerned about the state’s ability to
prosecute offenders “under that language.”
Id.
But
induced the victim “to submit by falsеly representing to the other person that the sexual
conduct is necessary for mental health treatment purposes.” Clearly, subsection (A)(10)
requires more than a mere professional-patient relationship.
The legislature’s intent in originally enacting
sexual conduct ‘“in a variety of situations where the offender takes unconscionable
advantage of the victim.”’
State v. Funk
, 10th Dist. No. 05AP-230,
unable to find a similar law in any other state in the nation. In looking at other equal
protection challenges to Ohio’s sexual battery statute, the Ninth District Court of Appeals
upheld such a challenge to
{¶33} In Shipley , the court found the statute was “rationally related to its intended purpose of preventing teachers from taking unconscionable advantage of students by using their undue influence over the students in order to pursue sexual relationships.” Id. at ¶ 81. The court noted the connection between the offense and the occupation of the offender, i.e., that it is unlawful when teachers use their undue influence over students to pursue sexual relationships, and held that the state had a legitimate interest in protecting minors from their teachers who might take advantage of them. Id.
{¶34}
Likewise, in this case, the state might have a legitimate interest in protecting
minors from police officers who use their profession to pursue inappropriate sexual
relationships. But there exists no occupational connection or relationship requirement in
{¶35}
Consequently, because the state’s method or meаns of achieving its interest
is not rational,
Clauses of the Ohio and United States constitutions. The trial court erred in denying Mole’s motion to dismiss.
{¶38} The first assignment of error is sustained.
III. Remaining Assignments of Error Moot
In the second assignment of error, Mole argues thаt the trial court should
have granted his motion to dismiss due to a defective indictment. In the third
assignment of error, Mole challenges his classification as a Tier III sex offender. Due to
our disposition of the first assignment of error, the second and third assignments of error
are moot.
with respect to his claim declaring
It is ordered that appellant recover from appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
MELODY J. STEWART, A.J., CONCURS IN
JUDGMENT ONLY WITH SEPARATE OPINION;
FRANK D. CELEBREZZE, JR., J., DISSENTS
WITH SEPARATE OPINION
MELODY J. STEWART, A.J., CONCURRING IN JUDGMENT ONLY: I concur with the disposition of the appeal, but do so for reasons different than those offered by the majority opinion. Althоugh the statutory definition of a “peace officer” is seemingly broad, the
legislature was acting within its prerogative when so defining that term. The legislature
could rationally find that any person imbued with police authority, regardless of that
person’s specific duties, fell within a class of persons who could abuse a position,
particularly in relation to minors. In any event, the majority’s concerns regarding the
overbreadth of the peace officer classification are not present in this case because Mole
was, in fact, a police officer. So concerns about whether the definition of a peace officer
is overbroad because it includes more esoteric positions like “forest officer” and
“department of taxation investigator” is immaterial.
I do agree with the majority that Mole was prosecuted under
divisions of
brought about by abuses of police authority cannot be a factor when the minor is unaware
that the other person is a police officer. Crucial to this case is the uncontested fact that
Mole’s position as a police officer had nothing to do with the sexual activity he engaged
*17
in with the victim: Mole did not tell the victim he was a police officer and the victim
testified that he had no idea that Mole was a police officer. The evil to be preventеd by
prevent, the age distinction employed by the statute is arbitrary. The age requirement that the offender be “more than two years older than the other person” seemingly contradicts the stated intent of the statute. While it seems unlikely that a person under the age of 20 could be named a peace officer, it is possible. So the statute rather contradictorily does not criminalize sexual conduct between a peace officer and a minor who is two years younger or less than the peace officer, even if the peace officer actually did intend to coerce the victim’s capitulation through the authority of the office. Mole’s sexual conduct with a minor was reckless. But he was not found
guilty of that offense under
FRANK D. CELEBREZZE, JR., J., DISSENTING:
Respectfully, I dissent from the majority’s holding that
is unconstitutional on its face.
As the majority recognizes, a sexual relationship between a minor and an
adult is unprotected conduct in this instance, and a peace officer is not a suspect class.
Therefore, rational basis review is to be applied. Here, that means the statute will be
upheld as constitutional if it bears some rational relationship to a legitimate governmental
interest.
State v. Williams,
Under the Equal Protection Clause, a legislative distinction need only be created in such a manner as to bear a rational relationship to a legitimate state interest. These distinctions are invalidated only where “they are based solely on reasons totally unrelated to the pursuit of the State’s goals and only if no grounds can be conceived to justify them.” Id ., quoting Clements v. Fashing , 457 U.S. 957, 963, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982). Review of the statute requires us to determine whether the statute is
rationally related to a legitimate government interest. That interest, based on the
location of
as a response to a sexual relationship between a minor and a police officer that caused a
loss of respect for the officer and his department among the local community. While
other portiоns of
categories of those affected by
rather than a more narrow class of individuals that would be more сlosely related to the state’s goal. However, each of the officials listed in the definition of “peace officer” are granted a great deal of power and authority over the public in their respective bailiwicks. *20 “For them to command that respect of the public, it is necessary then for these officers even when off duty to comport themselves in a manner that brings credit, not disrespect, upon their departments.” Jones v. Franklin Cty. Sheriff , 52 Ohio St.3d 40, 43, 555 N.E.2d 940 (1990). The statute is not an arbitrary or discriminatory embodiment of these dual
goals. The majority takes issue with the fact that
unconstitutional. The state’s interest in maintaining a respected policing arm, coupled
with its interest in protecting children, is achieved by the statute. A facial challenge
must fail. Therefore, I find the statute constitutional and would uphold appellant’s
conviction for sexual battery and his classification as a Tier III sex offender as required
by
Notes
[1] “ A person acts knowingly, regardless of his purpose, when he is aware that his conduct will
probably cause a certain result or will probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances probably exist. ”