STATE OF OHIO, PLAINTIFF-APPELLEE, v. ANGELA K. MOORE, DEFENDANT-APPELLANT.
CASE NO. 13-17-07
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
June 19, 2017
2017-Ohio-4358
Appeal from Seneca County Common Pleas Court, Trial Court No. 16-CR-0077, Judgment Affirmed
APPEARANCES:
John M. Kahler, II for Appellant
Stephanie Reed
PRESTON, P.J.
{¶1} Defendant-appellant, Angela K. Moore (“Moore“), appeals the February 2, 2017 judgment entry of sentence of the Seneca County Court of Common Pleas. Moore challenges the constitutionality of
{¶3} On August 5, 2016, Moore filed a motion to dismiss the indictment arguing that
{¶4} On November 28, 2016, Moore withdrew her pleas of not guilty and entered a plea of no contest with consent to a finding of guilty to one count of the indictment. (Doc. No. 51). In exchange for her change of plea, the State agreed to dismiss the other count of the indictment. (Doc. Nos. 50, 51, 52). The trial court accepted Moore‘s plea of no contest, found her guilty, dismissed the other count of the indictment, and ordered a presentence investigation. (Doc. Nos. 52, 60). The trial court filed its judgment entry of conviction on November 29, 2016. (Doc. No. 52). The trial court held a sentencing and sex-offender registration hearing on February 1, 2017. (Doc. Nos. 58, 59). The trial court sentenced Moore to 24 months in prison. (Doc. No. 58). The trial court also classified Moore as a Tier III sex offender. (Doc. No. 59). The trial court filed its judgment entries of sentence and sex-offender classification on February 2, 2017. (Doc. Nos. 58, 59).
{¶5} On February 28, 2017, Moore filed her notice of appeal. (Doc. No. 66). She raises one assignment of error for our review.
Assignment of Error
The Trial Court Erred When it Denied Appellant‘s Motion to Declare O.R.C. §2907.03(A)(5) Unconstitutional.
{¶6} In her assignment of error, Moore argues the trial court erred by denying her motion to dismiss the indictment because
{¶7} We review de novo a trial court‘s decision to dismiss all or any part of an indictment based on the constitutionality of the statute under which the defendant is indicted. State v. Carnes, 1st Dist. Hamilton No. C-150752, 2016-Ohio-8019, ¶ 7. We also review de novo the determination of a statute‘s constitutionality. State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27, citing City of Akron v. Callaway, 162 Ohio App.3d 781, 2005-Ohio-4095, ¶ 23 (9th Dist.) and Andreyko v. City of Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, ¶ 11 (1st Dist.). ”De novo review is independent, without deference to the lower court‘s decision.” Id., citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992).
{¶8}
{¶9} “‘It is difficult to prove that a statute is unconstitutional.‘” State v. Stoffer, 2d Dist. Montgomery No. 26268, 2015-Ohio-352, ¶ 8, quoting Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, ¶ 25. “‘All statutes have a strong presumption of constitutionality. * * * Before a court may declare unconstitutional an enactment of the legislative branch, “it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.“‘” Id., quoting Arbino at ¶ 25, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus.
{¶10} “A party may challenge the constitutionality of a statute with either a facial challenge or an as-applied challenge.” Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118, ¶ 20. “A facial challenge asserts that there is no conceivable set of circumstances in which the statute would be valid.” Id. “An as-applied challenge, on the other hand, alleges that application of the statute in a particular factual context is unconstitutional.” Id. “A holding that a statute is unconstitutional as applied prevents future application of the statute in a similar context, but it does not render the statute wholly inoperative.” Id. “A party raising an as-applied constitutional challenge must prove by clear and convincing evidence that the statute is unconstitutional when applied to an existing set of facts.” Id. at ¶ 22. In this case, Moore is challenging the constitutionality of the sexual-battery statute as it was applied to her. That is, she argues that
{¶11} We will first address Moore‘s substantive-due-process argument.
{¶12} “There are two tests used to assess the constitutionality of a statute under the Due Process Clause: strict scrutiny or rational-basis scrutiny.” State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, ¶ 18. “‘When reviewing a statute on due-process grounds, we apply a rational-basis test unless the statute restricts the exercise of fundamental rights.‘” Stoffer, 2015-Ohio-352, at ¶ 9, quoting Arbino, 2007-Ohio-6948, at ¶ 49. Moore concedes that the statute does not impinge a fundamental right. See Lowe at ¶ 24 (concluding “that a rational-basis test should be used to analyze [Ohio‘s incest] statute” because it does not impinge a fundamental right). Under the rational-basis test, “a statute will be upheld if it is rationally related to a legitimate government purpose and it is not unreasonable or arbitrary.” Stetter at ¶ 71. See also Lowe at ¶ 18. “‘In conducting this review, we must consider whether
{¶13} The Supreme Court of Ohio previously addressed the constitutionality of Ohio‘s incest statute. Lowe at ¶ 4. In that case, Supreme Court of Ohio analyzed
{¶14} This point is best illustrated by the Supreme Court‘s discussion of the General Assembly‘s intent in codifying Ohio‘s incest statute. In discussing the relationship between Ohio‘s incest statute and the State‘s interest in protecting the family unit, the Supreme Court of Ohio explained that because “[a] sexual relationship between a parent and child * * * is especially destructive to the family unit,” the General Assembly enacted
{¶15} Further, by the plain language of the statute, the General Assembly prohibited sexual conduct with a victim when the offender is the natural parent of the victim. Unlike the Supreme Court‘s statement in dicta in Lowe that “[t]he statute would no longer apply” to Lowe if he “divorced his wife and no longer was a stepparent to his wife‘s daughter, the stepparent-stepchild relationship would be dissolved,” the termination of parental rights does not dissolve a person‘s designation as a natural parent. See Lowe at ¶ 26. Rather, similar to the Supreme Court‘s determination that “parents do not cease being parents—whether natural parents, stepparents, or adoptive parents—when their minor child reaches the age of majority” when concluding that Ohio‘s incest statute applies to sexual conduct involving adult children, a natural parent does not cease being a parent simply because his or her parental rights were terminated. See id. at ¶ 25.
{¶16} Accordingly, we conclude that
{¶17} Therefore, the application of
{¶18} Moore also challenges the constitutionality of Ohio‘s incest statute as applied to her under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Ohio‘s Equal Protection Clause under
{¶19} Because this case does not involve a fundamental right or suspect classification, the parties do not dispute that a rational-basis review applies. Accordingly, we are required to uphold the statute under equal-protection review if the statute is rationally related to a legitimate governmental purpose. Mole, 2016-Ohio-5124, at ¶ 26. “Under rational-basis review, we grant ‘substantial deference’ to the General Assembly‘s predictive judgment.” Simpkins at ¶ 47, quoting Arbino, 2007-Ohio-6948, at ¶ 58.
{¶20} Moore argues that
{¶22} The trial court did not err by denying Moore‘s motion to dismiss the indictment. Moore‘s assignment of error is overruled.
{¶23} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
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