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State v. Moore

Court of Appeals of Ohio, Third District, Seneca

June 19, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
ANGELA K. MOORE, DEFENDANT-APPELLANT.

         Appeal from Seneca County Common Pleas Court Trial Court No. 16-CR-0077

          John M. Kahler, II for Appellant

          Stephanie Reed for Appellee

          OPINION

          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 R.C. 2907.03(A)(5), Ohio's incest statute, as it was applied to her. For the reasons that follow, we affirm.

         {¶2} On April 27, 2016, the Seneca County Grand Jury indicted Moore on two counts of sexual battery in violation of R.C. 2907.03(A)(5), (B), third-degree felonies, as a result of engaging in sexual conduct with her adult biological daughter, A.S. (Doc. No. 1). On June 2, 2016, Moore appeared for arraignment and entered pleas of not guilty. (Doc. No. 13).

         {¶3} On August 5, 2016, Moore filed a motion to dismiss the indictment arguing that R.C. 2907.03(A)(5) is unconstitutional as applied to her. (Doc. No. 20). In particular, she argued that the State has no legitimate interest in regulating the consensual sexual conduct between Moore and A.S. because her parental rights were terminated when A.S. was three years old. (Id.). The State filed its memorandum in opposition to Moore's motion to dismiss the indictment on August 24, 2016. (Doc. No. 27). Moore filed a "stipulation of facts for purposes of hearing on motion for an order declaring O.R.C. §2907.03(A)(5) unconstitutional and to dismiss the indictment only." (Doc. No. 33). After a hearing on September 8, 2016, the trial court on September 9, 2016 denied Moore's motion to dismiss the indictment. (Doc. Nos. 34, 35).

         {¶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 R.C. 2907.03(A)(5) violates the Equal Protection and substantive Due Process Clauses of the United States and Ohio Constitutions.

         {¶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} R.C. 2907.03(A)(5) prohibits sexual battery and provides that "[n]o person shall engage in sexual conduct with another, not the spouse of the offender when * * * the offender is the other person's natural or adoptive parent, or a stepparent, or ...


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