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State v. Mole

Court of Appeals of Ohio, Eighth District

July 18, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MATTHEW T. MOLE DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-557737

ATTORNEYS FOR APPELLANT Richard J. Perez Rosplock & Perez Interstate Square Bldg. John A. Fatica.

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor Daniel T. Van Jesse W. Canonico Assistant County Prosecutors.

BEFORE: Jones, J., Stewart, A.J., and Celebrezze, J.

JOURNAL ENTRY AND OPINION

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 R.C. 2907.04(A) and one count of sexual battery in violation of R.C. 2907.03(A)(13). He filed a motion to dismiss the sexual battery charge, which the trial court denied.

{¶ 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 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.

{¶ 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 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 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 R.C. 2907.03(A)(13) violates the Equal Protection Clauses of the United States and Ohio constitutions.

{¶7} R.C. 2907.03(A)(13) prohibits sexual battery and states that "[n]o person 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."

{¶ 8} 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. 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. ofEdn., 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, ¶19, citing Buchman v. Wayne Trace Local School Dist. Bd. ofEdn., 73 Ohio St.3d 260, 267, 1995-Ohio-136, 652N.E.2d952.

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 burden to negate every conceivable basis that might support the legislation.'" Id.

13} We are reminded that Ohio courts grant substantial deference 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 R.C. 2907.03(A)(13) rationally advances a legitimate state interest.

{¶ 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 shoulders the cloak of authority of the state. For them to command the 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 department." (Emphasis added.) Jennings at id, citing Jones at id. "[I]t is ...


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