State v. Parrish

Jul 18, 1984
No. 83-1950
Reporters:
, , ,
Before:
Brown

Lead Opinion

Per Curiam.

The issue presented in this appeal is whether these convictions, which were based solely on the uncorroborated testimonies of the participating undercover sheriffs deputies, must be reversed in light of R.C. 2923.03(D). Since we conclude that these deputies were not accomplices for purposes of the crime of prostitution, we hold that R.C. 2923.03(D) did not operate to bar these convictions.

R.C. 2923.03(D) reads as follows:

“No person shall be convicted of complicity under this section solely upon the testimony of an accomplice, unsupported by other evidence.”

In State v. Pearson (1980), 62 Ohio St. 2d 291 [16 O.O.3d 332], this court applied the foregoing statute to convictions for principal offеnses as well. Thus, in the case at bar, since it is undisputed that the participating deputies’ *124testimonies were uncorroborated, the narrow focus of our concern is whether these deputies were “accomplices.”

R.C. 2923.03(A) defines thе crime of “complicity,” in part, as follows: “No person, acting with the kind of culpability required ‍​​​​​‌​‌​​​​​​‌​‌​‌​‌‌‌‌‌‌‌‌​‌​​​‌​‌​​​​​‌​‌​​​‌‍for the commission of an offense, shall do any of the following:

“(1) Solicit or procure another to commit the offense;

“(2) Aid or abet another in committing the offense.” (Emphasis added.) R.C. 2907.25 defines the crime of “prostitution” as follows:

“(A) No person shall engage in sexual activity for hire.”

Appellees argue that R.C. 2907.25(A) sets forth a strict liability standard, i.e., no criminal intent is required of the person committing the crime. If this interpretation is correct, the deputies would then be accomplices. Appellant argues that this statute does not impose strict liability, and that the deputies herein lacked any requisite intent to commit a crime.

R.C. 2901.21(B) sets forth the requirements of a strict liability statutory offense:

“When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense.” (Emphasis added.)

R.C. 2907.25(A) does nоt “plainly indicate” an intention to impose strict liability. In State v. Adams (1980), 62 Ohio St. 2d 151 [16 O.O.3d 169], this court similarly held that ‍​​​​​‌​‌​​​​​​‌​‌​‌​‌‌‌‌‌‌‌‌​‌​​​‌​‌​​​​​‌​‌​​​‌‍the child endangering statute1 was not a strict liability offense. Examples of such a “plain indication” include R.C. 2915.02(A)(1),2 bookmaking, and R.C. 2915.03(A)(1),3 gambling house operation. See State v. Wac (1981), 68 Ohio St. 2d 84 [22 O.O.3d 299], paragraphs one and two of the syllabus. In each of thеse latter statutes the General Assembly has expressly differentiated degrees of culpability. The same is not true of R.C. 2907.25(A). Rather, the participants in the crime of prostitution addressed in R.C. 2907.25(A) must possess some degree of criminal intent4 to be found guilty of either the principal offense оr of complicity.

Appellees argue that since the legislature has expressly granted police immunity in other contexts, the failure to do so in the context of prostitution reflects a legislative intent to deny immunity. This argument, while super*125fiсially attractive, is not persuasive since legislative inaction can be attributed to many factors. (See Oliver v. Kaiser Community Health Found. [1983], 5 Ohio St. 3d 111, 115: “ ‘Legislаtive inaction is a weak reed upon which to lean in determining legislative intent’ see, also, State v. Barker [1983], 8 Ohio St. 3d 39, 41, at fn. 4.)

We thus find that the deputies hеrein were not accomplices ‍​​​​​‌​‌​​​​​​‌​‌​‌​‌‌‌‌‌‌‌‌​‌​​​‌​‌​​​​​‌​‌​​​‌‍for purposes of the corroboration requirement of R.C. 2923.03(D), since therе was no showing of criminal intent on their part.

We emphasize, however, that today’s ruling applies only to the facts оf this case, i.e., the deputies were not shown to have any criminal intent.

We also decline to adopt the so-called feigned accomplice rule as set forth in State v. Johnson (1960), 112 Ohio App. 124 [16 O.O.2d 51]. Adоption of such a rule, which would give police broad powers to participate in crimes that result in the subsequеnt convictions of the co-participants based solely on the uncorroborated testimony of the partiсipating officer, would constitute unwarranted judicial legislation. Participation in strict liability crimes, for instance, is a question left for another day.

The judgment of the court of appeals is hereby reversed.

Judgment reversed.

Celebrezze, C.J., Sweeney, Locher and Holmes, JJ., concur. W. Brown, C. Brown and J. P. Celebrezze, JJ., dissent.

Notes

R.C. 2919.22(B)(2).

R.C. 2915.02(A) reads, in pertinent part:

“No person shall:

“(1) Engage in bookmaking, or knowingly engage in conduct that facilitates bookmaking.”

R.C. 2915.03(A) reads, in pertinent part:

“No persоn, being the owner or lessee, or having custody, control, or supervision of premises, shall:

“(1) Use or occupy such premises for gambling * * *;

“(2) Recklessly permit such premises to be used or occupied for gambling * *

We decline at present to decide what ‍​​​​​‌​‌​​​​​​‌​‌​‌​‌‌‌‌‌‌‌‌​‌​​​‌​‌​​​​​‌​‌​​​‌‍degree of intent is required.



Dissenting Opinion

Clifford F. Brown, J.,

dissenting. R.C. 2923.03(D) provides:

“No person shall be convicted of complicity under this section solely upon the testimony of an accomplice, unsupported by other evidence.” The only evidence present in this case was that from the poliсe officers who participated in the crimes themselves. Such participation makes the officers “accomplices” pursuant to R.C. 2923.03.1, therefore, agree with the court of appeals that it was necessary to hаve independent evidence to support the testimony of the accomplices in order to convict the defendants. See State v. Myers (1978), 53 Ohio St. 2d 74 [7 O.O.3d 150]; State v. Vorys (1978), 56 Ohio St. 2d 107 [10 O.O.3d 302]; and State v. Pearson (1980), 62 Ohio St. 2d 291 [16 O.O.3d 332]. Because the stated language in R.C. 2923.03 contains no exception, a police officer is an accomplice whatever his motives or purposes might be. Therefore, I dissent.

It is significant that the legislature has not granted immunity to any person engaged in the act of prostitution. Silence by the legislature can only mean that no immunity was intended. Thus, with no statutory immunity, the lack of corroboration of the accomplice testimony leaves the state without proof that the appellees engaged in sexual activity for hire. The police of*126ficers in this action did “engage in sexual activity for hirе” in violation of R.C. 2907.25. The officers were, therefore, accomplices to the crime.

Cases such as Cleveland v. Leisinger (Apr. 8, 1982), Cuyahoga App. No. 43902, unreported, are distinguishable from the present case. In Leisinger the court found that the officer who is solicited by the defendant is not an accomplice. One who is the object of an offensе does not become an accomplice, as in the case of one who is solicited. However, solicitation is not the crime for which the defendants were charged. They were charged with violation of R.C. 2907.25 which provides that “[n]o person shall ‍​​​​​‌​‌​​​​​​‌​‌​‌​‌‌‌‌‌‌‌‌​‌​​​‌​‌​​​​​‌​‌​​​‌‍engage in sexual activity for hire.”

Any changes which should be made in the wording of R.C. 2923.03(D) should not be made by this court but rather by the legislature. Because the legislature carved out no exceptions to the accomplice provisions of R.C. 2923.03(D), I find it inappropriate for this court to do so today.

For the above-stаted reasons I would affirm the judgment of the court of appeals.

W. Brown and J. P. Celebrezze, JJ., concur in the foregoing dissenting opinion.