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Ohio Supreme Court Rules That Child-Enticement Statute is Unconstitutional.

The Ohio Supreme Court has held that Ohio’s child-enticement statute is unconstitutionally overbroad because it sweeps within its prohibitions a significant amount of constitutionally protected activity.


The case is State v. Romage, Slip Opinion No. 2014-Ohio-783.


The Defendant in this case was charged with criminal child enticement after he asked a child to carry some boxes to his apartment in exchange for money.


The Statute, R.C. 2905.05(A), provides:


No person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner, including entering into any vehicle or onto any vessel, whether or not the offender knows the age of the child, if both of the following apply:

(1) The actor does not have the express or implied permission of the parent, guardian, or other legal custodian of the child in undertaking the activity.

(2) The actor is not a law enforcement officer, medic, firefighter, or other person who regularly provides emergency services, and is not an employee or agent of, or a volunteer acting under the direction of, any board of education, or the actor is any of such persons, but, at the time the actor undertakes the activity, the actor is not acting within the scope of the actor’s lawful duties in that capacity.


A law can be found to be unconstitutional if it is so broadly written that it may have a deterrent effect on free expression.  The United States Supreme Court has held that for a statute to be facially invalid on overbreadth grounds, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Members of Los Angeles City Council v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).

The Ohio Supreme Court observed that the purpose of the child enticement statute is to prevent child abductions or the commission of sexual acts with children. However, this admirable goal was not sufficient to save the statute.  The court wrote:

Certainly, the safety and general welfare of children is even more deserving of governmental protection. But a statute that defines criminal conduct should not include what is constitutionally protected activity. Even though the state has a legitimate and compelling interest in protecting children from abduction and lewd acts, a statute intended to promote legitimate goals that can be regularly and improperly applied to prohibit protected expression and activity is unconstitutionally overbroad. R.C. 2905.05(A) is such a statute. Although the statute uses the word “knowingly,” the word modifies “solicit.” The statute fails to require that the prohibited solicitation, coaxing, enticing, or luring occur with the intent to commit any unlawful act.

The court noted that many innocent acts would seem to fall under the language of the statute, including, “a primary-school coach offering to drive a team member home to retrieve a forgotten piece of practice equipment; a parent at a community facility offering to drive another’s child home so she does not have to walk; a senior citizen offering a 13-year-old neighborhood child money to help with household chores; a 14-year-old asking his 12-year-old friend to go for a bike ride.”

In summary, the court held that the statute was unconstitutional because “There is no requirement that the offender be aggressive toward the victim. One need not have intent to commit a crime.”

Justice French, dissenting, suggested that the word “solicit” in the statute could be read narrowly “with its neighboring operative verbs—‘coax, entice, or lure’” so that “one can reasonably find a more sinister connotation.”

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Tape of Encounter with Undercover Officer Sufficient for Sex Crime Conviction

The Ohio Twelfth District Court of Appeals has held that a man caught in a sting operation at a park could be convicted of a sex offense when there is sufficient corroborating evidence to sustain the conviction.

The case is State v. Seelenbinder, 2013-Ohio-337.

The Defendant was charged in Mason Municipal with the offense of sexual imposition.  Officers had set up an undercover operation at a park.

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OH Supreme Court Rules That Evidence of Prior Sexual Abuse By Defendant Is Admissible To Show “Grooming” of Victims

The Ohio Supreme Court has held that the Rules of Evidence precludes the admission of evidence of other crimes, wrongs, or acts offered to prove the character of an accused in order to show that the accused acted in conformity therewith, but does not preclude admission of that evidence for other purposes.

The case is State v. Williams, Slip Opinion No. 2012-Ohio-5695.

The Defendant was convicted of rape, gross sexual imposition, kidnapping, and unlawful sexual conduct with a minor.  The Defendant had met a juvenile at an East Cleveland church and “became a mentor to him.”  In 2008, when the victim was 14, the defendant began to sexually abuse him.

The state sought to admit evidence that the Defendant had had a similar relationship with a different teenage boy.  The state argued that this “indicated a course of conduct constituting a common plan, demonstrated a distinct pattern of sexual conduct constituting a modus operandi, and, by reasonable inference, tended to prove [the defendant’s] intent to achieve sexual gratification with teenage males.”   The trial judge admitted this evidence, but cautioned the jury that the evidence would be “for a limited purpose.”

Under Ohio law – both the Rules of Evidence and the Revised Code — evidence that an accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused’s propensity or inclination to commit crime or that he acted in conformity with bad character.  However, the statute permits the admission of evidence where motive or intent, absence of mistake or accident, or scheme, plan, or system in doing an act is material.  The Rule more generally provides discretion to the trial judge to admit evidence for these purposes.

The Supreme Court instructed trial courts to use a three step process.

First, the court should consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

Second, the court should consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose.

Third, the court should consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice.

In this case, the evidence was relevant because it tended to show the motive the defendant had and the preparation and plan he exhibited of targeting, mentoring, grooming, and abusing teenage boys.  The court was satisfied that the evidence was not admitted to show that abusing children was in the defendant’s character, based in part on the limiting instruction given by the judge.  The court also believed that the evidence was not unduly prejudicial, also mostly because the trial court instructed the jury that this evidence could not be considered to show that the defendant had acted in conformity with a character trait.

Evidence Rule 404(B) provides that evidence of other crimes, wrongs, or acts of an accused may be admissible to prove intent or plan, even if the identity of an accused or the immediate background of a crime is not at issue.  The court held that evidence that the defendant had engaged in sexual relations with a teenage boy on previous occasions may be admissible to prove that the defendant “had a plan to target vulnerable teenage boys, to mentor them, and to groom them for sexual activity with the intent of sexual gratification.”  The court explained that the Rule “affords the trial court discretion to admit other acts evidence for any other purpose.”


Plea is Valid Even When Sex Offender Should Be Classified under Megan’s Law, Not Adam Walsh Act

The Ohio Court of Appeals for Miami County has held that a defendant may not be classified as a sexual offender under the Adam Walsh Act if his crime occurred before the effective date of the Act.  Instead, the defendant should have been classified under Megan’s Law.

The case is State v. Cruea, 2012-Ohio-5209.

The defendant had been indicted on multiple felony sex crime charges.  He pled no contest to one count of rape and two counts of Gross Sexual Imposition and was sentenced to eight years in prison.

One of the arguments raised on appeal by the defendant was that the trial court failed to properly advise him with respect to how his no contest plea would affect his sexual offender reporting requirements.  Specifically, the defendant argued that the trial court failed to advise him of his specific reporting responsibilities once he was designated as a sexual offender.

The trial court incorrectly designated the defendant as a Tier II sexual offender under the Adam Walsh Act.  This was incorrect because the rape occurred before the Adam Walsh Act took effect.  In a previous decision, the Ohio Supreme Court had ruled that constitution prohibits the application of the Adam Walsh Act to any sex offender who committed the underlying sex offense before the Act’s effective date.

Instead, the defendant in this case should have been classified under Megan’s Law, which was in effect at the time of the offense.  Under Megan’s  Law, a sex offender classification hearing must be held to determine if a defendant convicted of a sexually oriented offense has a community reporting responsibility.   If a defendant is classified as a sexual predator, he would have community reporting responsibilities.  If a defendant is classified as a habitual sexual offender, the trial court has the discretion to make the defendant subject to community reporting responsibilities.  Finally, under Megan’s law, if the defendant is classified as a sexually oriented offender, the defendant would not have any community reporting duties.

In this case, the trial court correctly informed the defendant during his plea hearing that “based upon your classification status, the Sheriff may have to – may be required to notify victims, neighbors, schools, churches and other institutions of your name, address and the offense.”  Accordingly, the plea hearing did not violate any of the Defendant’s rights and the guilty finding was affirmed.  The case was remanded for a new a sex offender classification hearing under Megan’s law.


Improper Use of Statements Made by Alleged Child Sexual Abuse Victim to Child Advocacy Center is not Grounds for Reversal

The case of State v. Just, 2012-Ohio-4094, contains an interesting discussion of the use of statements may by an alleged child victim of sexual abuse to social workers at a Child Advocacy Center.

The facts of this case started in May 3, 2011.  At that time, the alleged victim wrote a note stating that the defendant, who lived next-door, had sexually abused her.  The alleged victim was eight years old at the time.

The alleged victim met with an intake worker from Wayne County Children Services as well as a sexual assault nurse examiner.  She described multiple incidents of abuse spanning over several years.

At trial, the court permitted to jury to hear a recording of the alleged victim’s interview with an intake worker from Wayne County Children Services.  The Defendant argues that the recording constitutes hearsay and also that its admission violated his rights under the Confrontation Clause.

[Full disclosure:  While working as a prosecutor, I helped write an amicus curiae brief on the Confrontation Clause in Davis v Washington, which is cited by the appeals court here, for the District Attorney’s Association for the U.S. Supreme Court.]

The Rules of Evidence permit the introduction of out of court statements – hearsay —  in certain limited circumstances.  One of these is when statements are “made for purposes of medical diagnosis or treatment.”

In this case, the interviewer testified that she is employed by Wayne County Children Services and acts as the supervisor for the intake unit assigned to sexual abuses cases.  She interviewed the alleged victim at Wooster Community Hospital’s Child Advocacy Center.  The interview was conducted while a sexual assault nurse examiner observed.  The interviewer claimed that the intake interview was conducted to aid the subsequent medical exam that will take place.

The court noted that an “interview at a child-advocacy center may serve dual purposes: one that is intended to elicit medical information for diagnosis and treatment, and one that is intended to gather forensic information for the purposes of prosecution.”  The Ohio Supreme Court has previously noted that child advocacy centers conduct interviews with the purpose of gathering as much information as possible in a single setting to reduce the trauma child-abuse victims may suffer  as a result of having to recount their abuse multiple times.  As a result, the interview may provide both medical information and non-medical information that is useful to the prosecution.

The court found that while the alleged victim made many statements for the purpose of medical diagnosis and treatment, she also “made statements, however, regarding the details of the circumstances surrounding the abuse.”  Because they were not necessary for medical treatment, the statements are not admissible as statements for medical diagnosis and also are subject to the Confrontation Clause.

The Confrontation Clause was not implicated in this case, however.  First, statements for medical diagnosis, because they are not “testimonial” – or meaning intended for legal proceedings — may be admitted without offending the Confrontation Clause.  Second, the Confrontation Clause guarantees the right of cross-examination and is not violated when, as in this case, the victim appears in court and testified.

The court concluded that even though the out of court statements were improperly admitted under the medical treatment exception to the hearsay rule, this did not justify a reversal of the defendant’s conviction.  This is because the alleged victim “testified at trial to the same events that she described in her interview.”  The court applied a rule that when hearsay testimony is essentially cumulative to a declarant’s in-court testimony, any resulting error is harmless.



Conviction of Female Teacher Who Had Sex With Male Students Affirmed Despite Lack of Specific Dates

An Ohio Appeals Court has upheld the conviction of a teacher for having sexual relations with students.  The court held that the state presented sufficient evidence and di not need to provide exact dates of the sexual encounters.

The case is State v. Covic, 2012-Ohio-3633.

The defendant was a teacher of a special program for at-risk kids.  She obtained permission from the principal to give out her personal cell phone number to her students so that she could stay in touch by text messaging regarding homework assignments and truancy issues.

The defendant had invited groups of students to her house to drink alcohol and play poker late at night when her husband was not home.  Two male students testified that, when they went to her house, she gave them alcohol and engaged in sexual conduct with them.  Later, the defendant received a series of text messages a male student who had graduated from the school demanding $4000 or he would tell police that she had raped him.

The defendant later admitted to other teachers that she had done “something very inappropriate.”

One of the young males testified that he went to the defendant’s house at least 30 times.  He said that he always took a friend with him to play poker and drink alcohol and that they would often stay at the house all night.  He also said that the defendant had sex with him.  Three other former students testified that they went. to the defendant’s house to drink alcohol and play poker.  The defendant testified that she never had sex with any of her students and that she never gave any students alcohol.

The jury convicted her of contributing to the delinquency of a minor and sexual battery.  The trial court sentenced her to serve three years in prison for sexual battery and a concurrent six months for contributing to the delinquency of a minor.

On appeals, the defendant argued that the testimony of the students was not credible because both are juvenile delinquents and  admitted liars.  In particular, both boys “admitted to having lied to the school principal and/or other authorities, even police officers, when the allegations were first brought to light through teachers at the school.”   The court rejected this argument noting that the child had testified “that he denied all the allegations initially because he did not want to get her in trouble, but he felt he had to tell the truth later because it was the right thing to do.”  The court also noted that the other teachers’ testimony about her alleged confessions was corroorbated by the different statements and the fact that the defendant husband worked 24-hour shifts as a fireman, leaving him off for 48 hours in between.

The defendant also argued that she was “prejudiced by the lack of specific dates in the bill of particulars and discovery responses provided by the State.”  The court noted that specific dates are not necessary in prosecutions of sexual abuse of juveniles.  The court noted that in cases of child sexual abuse, young victims often are unable to remember exact dates when the offenses occurred. quoting  State v. Carey, 2d Dist. No. 2002-CA-70, 2003-Ohio-2684, ¶ 8.

The court concluded that the “record does not indicate that the State had details about the dates of the alleged conduct that it refused to provide to the defense via a bill of particulars or discovery prior to trial.”  In part, this was because the defendant generally denied the allegations and did not pursue an alibi defense.  A concurring judge emphasized that the defendant “has not shown that her ability to prepare and present a defense was materially affected by the lack of information.”  This judge was concerned that “the main opinion could be read to suggest that the defendant’s] failure to file a notice of alibi or failure to present evidence of the same is, in and of itself, fatal to her argument that the lack of information was material to her ability to prepare and present a defense, I write separately to make clear that I do not believe that to be the case.”


Arrest for Public Indecency for Urinating on the Side of the Road Improper

An Ohio Court of Appeals has held that a defendant cannot be arrested for public indecency when he is observed urinating on the side of the road after the defendant had been improperly denied permission to leave the scene.

The case is State v. Wilcox, 2012-Ohio-3400.

The facts of this case started when a Springfield Police Officer observed a car driving past him in the opposite direction, with the horn blowing continuously.  The officer turned his cruiser around and stopped the vehicle to investigate whether the horn was blowing for an emergency or a malfunction.  Another officer responded within one or two minutes to assist.

As the officer approached the stopped vehicle, the driver exited and said that the horn was stuck.  The officer determined that the driver’s license had been suspended.  Because the driver would not be permitted to leave with the car, the officer went to the passenger side of the vehicle, where the Defendant was seated.  The Defendant was unresponsive and had slurred speech.  The Defendant was uncooperative and unwilling to identify himself so the officer ordered him to step out of the vehicle and patted him down.

The court described the scene:

While The Defendant was outside the vehicle, he informed the officers that he needed to urinate and made numerous requests  to use a restroom.  The Defendant attempted to  unzip his pants several times in order to urinate, but the officers stopped him and told him to return to the stopped vehicle. . . . The officers cautioned The Defendant that,  if he urinated in public, he would be arrested.  The Defendant was not under arrest at this point, but he was repeatedly told to sit inside the stopped vehicle.   . . . A short time later, . . .  the Defendant was urinating on the curb and grass while standing in the open door of the stopped car.  [The officer] approached the Defendant, saw his exposed genitals, and arrested him for public indecency.

A subsequent search incident to arrest of the defendant revealed illegal drugs.{¶ 8}  The Defendant sought to suppress the evidence found on his person, arguing that the officers had “provoked the crime” for which they arrested him by refusing to allow him to urinate privately, and that the search conducted incident to his arrest was unlawful.  The court accepted this argument:

The Defendant stated on numerous occasions that he needed a restroom to urinate.  It is unclear whether he expressly asked to leave, but the officers testified that they repeatedly ordered him back into the car while [working] worked on issuing a citation to the driver.  A few minutes later, The Defendant urinated alongside the car. . . .

While the officers acted lawfully in stopping the car and asking basic questions of The Defendant, the passenger, they violated his constitutional rights when they insisted that he remain in the car or at the scene of the traffic stop while the driver’s citation was issued.

In short, the arrest was unlawful because “the Defendant should have been allowed to walk away from the scene when he expressed a need to do so.”


Ohio Court Appears Uncomfortable Reviewing Explicit Facebook Messages

Need a good chuckle?  Check out this entertaining opinion from the Twelfth District Court of Appeals on Monday.  It is fun to watch the judges try to “translate” an explicit Facebook chat into polite, publishable, and formal English.  The court’s grasp of the obvious here, despite the generation gap between the judges and the Defendant and victim, is also fun and impressive.

The case is State v. Paul, 2012-Ohio-3205.


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