State v. Rober
Court of Appeals No. L-14-1168
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: December 30, 2015
2015-Ohio-5501
JENSEN, J.
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-14-1168
Appellee Trial Court No. CR0201301833
v.
Melinda Rober DECISION AND JUDGMENT
Appellant Decided: December 30, 2015
* * * * *
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Stephen D. Hartman, for appellant.
* * * * *
JENSEN, J.
I. Introduction
{¶ 1} Appellant Melinda Rober pled no contest to two counts of sexual battery in
violation of R.C. 2907.03(A)(7), both felonies in the third degree. The trial court found
appellant guilty and sentenced her to 12 months in prison as to each count, to be served
concurrently.
applied to her and that the trial court erred in finding that she “caused or threatened to
cause physical harm to a person.”
{¶ 3} For the reasons that follow, we find that appellant’s assignments of error are
not well-taken, and we affirm the judgment of the trial court.
II. Statement of Facts and Procedural History
{¶ 4} During all relevant times herein, appellant worked for Bay Park Community
Hospital in Oregon, Ohio. The hospital was under contract with Clay High School, also
in Oregon, to provide athletic training services. Pursuant to that contract, the hospital
assigned appellant to work at the school as an athletic trainer, assisting various athletic
teams throughout the school year. The record indicates that appellant worked in the
school for approximately 12 years.
{¶ 5} The state alleged that appellant had improper sexual encounters with a
17-year-old student between December of 2011 and May 31, 2012. Specifically, it
alleged that appellant engaged in fellatio (Count I) and sexual intercourse (Count II) with
the student. (L.C.C.P. case No. CR0201301833).
{¶ 6} On May 29, 2013, a Lucas County Grand Jury indicted appellant on two
counts of sexual battery, in violation of R.C. 2907.03(A)(7). Appellant filed an amended
motion to dismiss the charges, arguing that the statutory term “person in authority,” was
unconstitutionally vague and that she was not, in fact, a person in authority. The trial
court denied the motion.
sexual battery (L.C.C.P. case No. CR0201401297), involving a second victim, and the
two cases were consolidated.
{¶ 8} Thereafter, the parties reached a plea agreement, whereby appellant pled no
contest to both charges in the 2013 case, in exchange for the state entering a “nolle
prosequi” in the 2014 case.
{¶ 9} By judgment entry dated July 15, 2014, the trial court found appellant guilty
and sentenced her to 12 months in prison as to both counts, to be served concurrently.
The court also sentenced appellant to five years of mandatory postrelease control as to
both counts.
{¶ 10} Appellant appealed the judgment and moved this court for a stay of
execution of sentence. We granted the stay during the pendency of the appeal on the
condition that appellant post bond.
III. Appellant’s Assignments of Error
{¶ 11} Appellant presents two assignments of error for our review:
1. The trial court committed reversible error when it denied
Appellant’s Amended Motion to Dismiss, because the statute under which
Appellant was charged is unconstitutionally vague in violation of
Appellant’s right to due process under the fifth and fourteenth amendments
to the U.S. Constitution and article one of the Ohio Constitution.
Appellant “caused or threatened physical harm to a person,” because the
Court never made such a finding during sentencing and there is no evidence
in the record to support such a finding.
IV. Sexual Battery Under R.C. 2907.03(A)(7)
{¶ 12} Appellant was convicted of violating R.C. 2907.03(A)(7), which provides,
in part:
(A) No person shall engage in sexual conduct with another, not the
spouse of the offender, when any of the following apply: * * * (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.1
(Emphasis added).
{¶ 13} R.C. 2903.07(A)(7) does not specify any degree of culpability. Proof of a
culpable mental state to establish criminal liability is not required when the section
defining an offense does not specify any degree of culpability and plainly indicates a
purpose to impose strict criminal liability. R.C. 2901.21(B).
offenses omit a mens rea requirement because their overriding purpose is the protection
of the public welfare, imposing punishment for conduct prohibited by the statute,
irrespective of the actor’s intent. Where no degree of culpability is specified by a statute,
however, strict liability cannot merely be assumed. The court must find that the statute
plainly indicates the legislature’s purpose to impose strict liability. R.C. 2901.21(B);
State v. Moody, 104 Ohio St.3d 244, 2004-Ohio-6395, 819 N.E.2d 268, ¶ 6.
{¶ 15} This court has previously found that R.C. 2907.02(A)(7) is, in fact, a strict
liability offense. State v. Alridge, 6th Dist. Sandusky No. S-15-001, 2015-Ohio-4064, ¶ 6;
see also State v. Clay, 2d Dist. Miami No. 08CA33, 2009-Ohio-5608, ¶ 11-12.
V. Appellant’s Constitutional Challenge
{¶ 16} The determination of a statute’s constitutionality is a question of law to be
reviewed de novo. State v. Whites Landing Fisheries, 6th Dist. Erie No. E-13-021, 2014-
Ohio-1314, ¶ 13.
{¶ 17} All enacted legislation enjoys a strong presumption of constitutionality.
State v. Dorso, 4 Ohio St.3d 60, 61, 446 N.E.2d 449 (1993). This presumption remains
unless the challenger proves beyond a reasonable doubt that the legislation is clearly
unconstitutional. State v. Williams, 88 Ohio St.3d 513, 521, 728 N.E.2d 342 (2000).
Thus, we begin with the presumption that R.C. Chapter 2307.03(A)(7) is constitutional.
{¶ 18} Appellant argues that R.C. 2307.03(A)(7) is unconstitutionally vague in
violation of her due process rights under the federal and Ohio constitutions. The void-
them. State v. Anderson, 57 Ohio St.3d 168, 171, 566 N.E.2d 1224 (1991). “Under the
tenets of due process, an ordinance is unconstitutionally vague under a void-for-
vagueness analysis when it does not clearly define what acts are prohibited under it.”
State v. Varsel, 6th Dist. Fulton No. F-13-006, 2014-Ohio-1899, ¶ 12, quoting Viviano v.
Sandusky, 6th Dist. Erie No. E-12-058, 2013-Ohio-2813, ¶ 13.
{¶ 19} In order to survive a void-for-vagueness challenge, the statute at issue must
be written so that a person of common intelligence is able to determine what conduct is
prohibited, and the statute must provide sufficient standards to prevent arbitrary and
discriminatory enforcement. Chicago v. Morales, 527 U.S. 41, 56-57, 119 S.Ct. 1849,
144 L.Ed.2d 67 (1999); see also State ex rel. Rear Door Bookstore v. Tenth Dist. Court of
Appeals, 63 Ohio St.3d 354, 358, 588 N.E.2d 116 (1992). A statute will not be declared
void, however, merely because it could have been worded more precisely. Roth v. United
States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Mathematical
precision is not required. Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72
S.Ct. 329, 96 L.Ed. 367 (1952).
{¶ 20} A legislative enactment may be unconstitutional on its face or as applied in
a specific case. Facial-vagueness challenges are generally allowed only where the statute
is vague in all of its applications. Anderson at 173, fn. 2, citing Village of Hoffman
Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-495, 102 S.Ct. 1186, 71
L.Ed.2d 362 (1982). This means that the statute does not supply a definitive standard by
survives a facial challenge, a litigant may succeed on a vagueness claim only by
demonstrating that the statute is impermissibly vague as applied to him or her. Williams
{¶ 21} If the statute is being challenged as applied to the circumstances of a
particular case, the challenger “contends that application of the statute in the particular
context in which [s]he has acted * * * [is] unconstitutional.” State v. Lowe, 112 Ohio
St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 17.
{¶ 22} In this case, appellant alleges that R.C. 2307.03(A)(7)’s use of
“person in authority” is unconstitutional as it was applied to her. She complains
that the statute fails to “describe what authority that person must have” and that
“without a definition of which other school employees are ‘person[s] in authority’
the statute is left subject to arbitrary and discriminatory enforcement.”
{¶ 23} Contrary to appellant’s suggestion otherwise, the statute’s failure to
define “person in authority” does not, ipso facto, render the term
unconstitutionally vague. Rather, the words must be construed according to the
rules of grammar and common usage. State ex rel. Rose v. Ohio Dept. of Rehab
and Corr., 91 Ohio St.3d 453, 455, 746 N.E.2d 1103 (2001).
{¶ 24} The trial court and the parties referred to the Merriam-Webster.com
definition of “authority” which defines the word as follows: “the power to give
something.”
{¶ 25} Appellant’s job description included a broad variety of activities,
necessitating frequent, if not daily, one-to-one interactions with student athletes. Many
of those interactions, by virtue of the position, involve the power to make decisions
affecting the student athlete and/or to direct his or her movements. For example,
appellant was specifically required to instruct students how to operate training equipment
and to act as a liaison between the athlete and the physical therapist(s). Appellant’s job
duties included but were not limited to:
Safeguard the health and well-being of students in athletic activities;
Prevent injuries;
Supervise and monitor protocols as prescribed by the physician and
or physical therapist;
Instruct patients in physical therapy activities and use of equipment;
Attend meetings to report patient progress.
{¶ 26} We find that persons of ordinary intelligence would understand that the
statute’s prohibition of sexual contact between students and “persons of authority” would
include an athletic trainer with appellant’s job description who was assigned to work in
the school.
lacked the “ultimate power to keep an athlete out of a sport” and/or because she had no
disciplinary authority over students.
{¶ 28} We disagree. The absence of any modifying language to the term “person
in authority” indicates an intention by the legislature that it apply broadly. Contrast R.C.
2907.03(A)(7) to the preceding subsection, (A)(6), which criminalizes sexual conduct
between a person in a penal, hospital or other institution and a person with “supervisory
or disciplinary authority over the other person.” If the legislature intended to limit
criminal liability in Section (A)(7) to those with supervisory or disciplinary authority, it
could have done so.
{¶ 29} Thus, appellant need not have had either ultimate authority, or disciplinary
authority over student athletes for her to fall within the parameters of the statute. “It is
not a ‘prerequisite’ to the statute ‘that the person actually make or enforce rules,’ rather,
‘[i]t is sufficient for the person acting* * * to be an authority figure, with the ability to
exercise an inherent parent-like power over a vulnerable child.’” (Emphasis sic.) State v.
Thomas, 8th Dist. Cuyahoga No. 88844, 2007-Ohio-4064, ¶ 29 (“Thomas II”), quoting State v.
Vaught, 9th Dist. Summit No. 22846, 2006-Ohio-4727, ¶ 12.
{¶ 30} State v. Thomas involved two appeals before the Eighth Appellate District.
In the first, the court held that R.C. 2907.03(A)(7) is not unconstitutionally vague as
applied to a school security guard and that the security guard was a person of authority
under the statute. State v. Thomas, 8th Dist. Cuyahoga No. 85155, 2005-Ohio-2631
conviction, he appealed.
{¶ 31} In the second appeal, the appellate court found that the manifest weight of
the evidence supported the security guard’s conviction. It found,
The statute “can clearly be understood by ordinary people” to
prohibit “any person in a position of authority over a minor * * * from
taking advantage of his position * * *. Ordinary common sense informs an
individual when he is in a position of authority and has disciplinary control,
whether temporary or occasional, over a minor.” State v. Gorenflo, 3rd
Dist. Marion No. 9-2000-101, 2001 WL 542113 (May 23, 2001). The trial
court reasonably conclude, based upon the evidence, that [the security
guard’s] sexual encounter with a student occurred because he used his
position to “take advantage.” Thomas II at ¶ 32.
{¶ 32} That appellant had no authority to discipline students or to prevent them
from competing in this case is not dispositive.
{¶ 33} Finally, appellant complains that the trial court failed to address her
arguments with regard to whether school custodians, cafeteria workers, nurses and/or
maintenance workers would be considered “persons in authority.” We offer no opinion
as to appellant’s hypothetical arguments. We decide today only whether the statute is
unconstitutionally vague as applied to her. We find that it is not.
2907.03(A)(7) is unconstitutionally vague as applied to her.
{¶ 35} Under the facts of this case, we find that R.C. 2907.03(A)(7) provides
sufficient notice that sexual contact between a school athletic trainer and a student at the
same school would constitute sexual battery and that the statute provides sufficient
standards to prevent arbitrary and discriminatory enforcement. Appellant’s first
assignment of error is not well-taken.
VI. Appellant’s Postrelease Control Challenge
{¶ 36} In appellant’s second assignment of error, she argues that the trial court
erred in sentencing her to five years of postrelease control as to both counts.
{¶ 37} The trial court’s sentencing entry states, in part,
The Court further finds that defendant caused or threatened physical
harm to a person. It is further ORDERED the defendant is subject to 5
years mandatory post-release control as to count 1, 5 years mandatory post-
release control as to count 2, after defendant’s release from imprisonment
pursuant to R.C. 2967.28 and 2929.14.
{¶ 38} Appellant argues that there is no evidence in the record to support the
conclusion that appellant caused or threatened to cause physical harm to another.
Appellant surmises that the trial court’s “finding is apparently what caused the Court to
determine that Appellant is subject to a mandatory five year period of post release
control, as to each of the two counts of sexual battery.”
2307.03(B). The trial court found appellant guilty on two counts of violating the sexual
battery statute and sentenced her to two five-year terms of mandatory postrelease control.
The trial court’s imposition of postrelease control was mandatory, and the five-year term
is dictated by statute. R.C. 2967.28 provides, in part,
(B) Each sentence to a prison term * * * for a felony sex offense
* * * shall include a requirement that the offender be subject to a period of
post-release control imposed by the parole board after the offender’s release
from imprisonment. * * * [A] period of post-release control required by this
division for an offender shall be of one of the following periods:
For * * * a felony sex offense, five years; * * *
{¶ 40} Thus, the imposition of two five-year sentences was mandatory based upon
appellant’s felony sex offense convictions, and not based upon whether or not she
inflicted, or attempted to inflict, physical harm.
{¶ 41} Appellant’s second assignment of error is not well-taken.
{¶ 42} Having found no error prejudicial to appellant, the judgment of the trial
court is affirmed, and appellant’s bond is revoked. Pursuant to App.R. 24, costs are
assessed to appellant.
Judgment affirmed.
C.A. No. L-14-1168
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Stephen A. Yarbrough, P.J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.