State v. MoleState v. Mole
{¶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
{¶3} The charges stemmed from a single sexual encounter that 36-year-old Mole, 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.
{¶4} 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 а 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.
{¶5} It is from the conviction for sexual 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 where
R.C. 2907.03(A)(13) is unconstitutional on its face in violation of theFourteenth Amendment to the United States Constitution andArticle I, Sections 2 and16 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 andFourteenth Amendments to the United States Constitution andArticle I, Sections 10 and16 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 R.C. 2907.03(A)(13)
{¶6} In the first assignment of error, Mole argues that the trial court erred in denying his motion to dismiss because
{¶7}
{¶8} The Equal Protection Clause of the
{¶9} Both equal-protection provisions are functionally equivalent and require the same analysis. Eppley v. Tri-Valley Local School Dist. Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 11.
{¶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, 49 Ohio St.3d 27, 29, 550 N.E.2d 181 (1990). The parties do not dispute that this case does not involve a fundamental right or suspect classification; thus, a rational-basis review applies.
{¶11} “The rational-basis test involves a two-step analysis. We must first 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, 2005-Ohio-6505, 839 N.E.2d 1, ¶9, citing Buchman v. Wayne Trace Local School Dist. Bd. of Edn., 73 Ohio St. 3d 260, 267, 1995-Ohio-136, 652 N.E.2d 952.
{¶12} Pursuant to a rational-basis review, the state “‘has no obligation to produce evidence to sustain the rationality of a statutory classification.‘” Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 20, quoting Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, at ¶ 91. The party challenging the constitutionality of a law ‘“bears the
{¶13} We are reminded that Ohio courts grant substantial dеference to the legislature when conducting an equal-protection rational-basis review. State v. Williams, 88 Ohio St.3d 513, 531, 2000-Ohio-428, 728 N.E.2d 342. Classifications will be invalidated only if they “‘bear no relation to the state‘s goals and no ground can be conceived to justify them.‘” State v. Peoples, 102 Ohio St.3d 460, 2004-Ohio-3923, 812 N.E.2d 963, ¶ 7, quoting State v. Thompkins, 75 Ohio St.3d 558, 561, 1996-Ohio-264, 664 N.E.2d 926.
{¶14} In this case, the challenge to the statute‘s constitutionality is a facial 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, 35 Ohio St.3d 229, 231, 520 N.E.2d 188 (1988).
A. Valid State Interest
{¶15} Therefore, in considering the first prong of the rational-basis test, we must determine whether
{¶16} The Ohio Supreme Court has noted that “police officers are held to a higher standard of conduct than the general public.” Warrensville Hts. v. Jennings, 58 Ohio St.3d 206, 207, 569 N.E.2d 489 (1991), citing Jones v. Franklin Cty. Sheriff, 52 Ohio St.3d 40, 43, 555 N.E.2d 940 (1990). “Law enforcement officials carry upon their
{¶17} Because a police officer may be held to a higher standard of conduct than an ordinary citizen, even when the police officer is off duty, prohibiting sexual relationships between police officers and minors may therefore rationally advance a legitimate state interest, we think, especially if the police officer uses his or her occupation to influence the minor into the relationship.
{¶18} But
{¶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 state‘s method or means of achieving its interest is rationаl.
{¶21} Unlike the other subsections of the sexual battery statute,
{¶22} 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 ordinary resolution.
(2) The offender knows that the other person‘s ability to apрraise 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
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) The other person is a minor, the offender is а 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.
{¶23}
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{¶27} The state argues that the legislature‘s intent was to protect minors from exposure to certain types of sexual conduct and in order to achieve that interest, it was necessary to hold peace officers to a higher standard by expanding the statutе to encompass situations where there is “even the possibility of influence over a child with no requirement that the relationship arise while the peace officer was performing official duties.”
{¶28} It appears from a review of the legislative history that the amendment to the 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 Fabеr‘s speech 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
{¶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.
{¶30} But
{¶31} The legislature‘s intent in originally enacting
{¶32} This appears to be a case of first impression in Ohio. Moreover, we were 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 means of achieving its interest is not rational,
{¶36} In sum, while the state may have a legitimate interest in protecting minors from those who might use their undue influence over them in order to pursue sexual relationships, Mole has been able to show that
{¶37} Therefore, we find that
{¶38} The first assignment of error is sustained.
III. Remaining Assignments of Error Moot
{¶39} In the second assignment of error, Mole argues that the trial court should have grantеd 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.
{¶40} Accordingly, judgment reversed.
{¶41} The case is remanded with instructions to grant Mole‘s motion to dismiss 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.
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:
{¶42} I concur with the disposition of the appeal, but do so for reasons different than those offered by the majority opinion.
{¶43} Although the statutory definition of a “peace officer” is sеemingly 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.
{¶44} I do agree with the majority that Mole was prosecuted under
{¶45} The fundamental premise behind
{¶46} But the goal of protecting minors from capitulating to sexual coerciоn 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
{¶47} Apart from the statute criminalizing conduct that it was not designed to 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.
{¶48} 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:
{¶49} Respectfully, I dissent from the majority‘s holding that
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).
{¶51} 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
{¶53} This is a key distinguishing factor for peace officers frоm the other categories of those affected by
{¶54} The majority takes issue with the use of “peace officer” in the statute rather than a more narrow class of individuals that would be more closely related to the state‘s gоal. 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.
{¶55} The statute is not an arbitrary or discriminatory embodiment of these dual goals. The majority takes issue with the fact that
{¶56} Appellant cannot carry the burden of demonstrating that this statute is 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