Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2011 CR 0740.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee).
George G. Keith, (For Defendant-Appellant).
DIANE V. GRENDELL, J.
(¶1} Defendant-appellant, Larry Blair, appeals his conviction for Sexual Battery following the entry of a no contest plea. The issue before this court is whether a defendant may be convicted of Sexual Battery against a stepchild after the dissolution of the marriage that created the affinity by the death of the mother. For the following reasons, we reverse and remand the decision of the court below.
(¶2} On November 29, 2011, the Portage County Grand Jury returned an Indictment against Blair, charging him with two counts of Sexual Battery, felonies of the third degree in violation of R.C. 2907.03(A)(5) and (B). Both counts provided:
(¶3} LARRY BLAIR on or about 25 JULY 2011 in the County of Portage * * * did * * * engage in sexual conduct with T.J. not the spouse of said LARRY BLAIR when said LARRY BLAIR was said T.J.'s natural or adoptive parent or a stepparent, or guardian, or custodian, or person in loco parentis of said T.J.
(¶4} On December 9, 2012, Blair was arraigned and entered a plea of not guilty. The case was scheduled for trial on September 6, 2012.
(¶5} On September 6, 2012, counsel for Blair made an oral motion to dismiss the Indictment on the grounds that Blair was not T.J.'s stepparent at the time of the sexual conduct charged in the Indictment. Counsel argued that the stepparent relationship between Blair and T.J. dissolved upon the death of T.J.'s mother and that, at the time of the sexual conduct, T.J. was an adult and had completed high school.
(¶6} The trial court denied the motion to dismiss.
(¶7} Thereupon, Blair entered a plea of no contest to one count of Sexual Battery; the State moved to dismiss the second count. The prosecutor read the following stipulated facts into the record:
(¶8} That the victim in this case * * * was born on or about the 29th day of December, 1992. That as an infant, she was adopted by Rosemary Johnson, who became her mother. * * * [T]hat on or about August 20, 22, 2002, Larry Blair and Rosemary Johnson became married and at that time, Larry Blair became stepfather to T.J. * * * who * * * would have been a juvenile at the time they were married. * * * Rosemary Johnson, the mother of T.J. and the wife of Larry Blair, passed away from cancer on or about May 10, 2009. ** * Rosemary Johnson had arranged for the two daughters, T.J. and her other younger daughter, to go with another family member, but that factually the daughters * * * continued to live with and reside with Larry Blair, * * * the person they knew as their stepfather. At that time, the alleged victim * * * was still a juvenile and would have been approximately fifteen or sixteen years of age. ** * [O]n or about December 29 of 2010 * * *, the alleged victim * * * turned eighteen years of age and at that time she was living in Streetsboro with Larry Blair and her younger sister. Both sides will then stipulate, that while living in the home, on or about the 25th day of July, 2011, * * * the Defendant, Larry Blair, engaged in sexual conduct with T.J.
(¶9} The trial court found Blair guilty of Sexual Battery.
(¶10} On October 10, 2012, the trial court issued an Order and Journal Entry, memorializing Blair's sentence. The court sentenced Blair to a two-year term of imprisonment (stayed pending appeal); imposed a fine of $300 plus costs; designated him a Tier III Sex Offender; and advised him that he ...