from Seneca County Common Pleas Court Trial Court No.
M. Kahler, II for Appellant
Stephanie Reed for Appellee
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.
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.
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).
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).
On February 28, 2017, Moore filed her notice of appeal. (Doc.
No. 66). She raises one assignment of error for our review.
Trial Court Erred When it Denied Appellant's Motion to
Declare O.R.C. §2907.03(A)(5) Unconstitutional.
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
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).
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 ...