State v. Curtis, 2009 Ohio 192 (Ohio App. 1/20/2009)

Decision Date20 January 2009
Docket NumberNo. CA2008-01-008.,CA2008-01-008.
Citation2009 Ohio 192
PartiesState of Ohio, Plaintiff-Appellee, v. Bruce A. Curtis, Defendant-Appellant.
CourtOhio Court of Appeals

Robin N. Piper, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011-6057, for plaintiff-appellee.

Samuel D. Borst, Fred S. Miller, Baden & Jones Building, 246 High Street, Hamilton, OH 45011, for defendant-appellant.

OPINION

YOUNG, J.

{¶1} Defendant-appellant, Bruce A. Curtis, appeals his convictions in the Butler County Court of Common Pleas for attempted sexual battery and sexual imposition. For the reasons outlined below, we affirm.

{¶2} On August 1, 2007, appellant, a pastor at Community Friendship Church in Hamilton, Ohio, was indicted on one count of attempted sexual battery in violation of R.C. 2923.02 and R.C. 2907.03(A)(12), a felony of the fourth degree, and one count of sexual imposition in violation of R.C. 2907.06(A)(1), a third-degree misdemeanor, after it was alleged that he engaged in unlawful sexual contact with then 17-year-old M.B., on or about February 21, 2007.1

{¶3} Appellant's trial on the charges was held on December 3-4, 2007. At trial, M.B. testified that she had known appellant as both her godfather and pastor for several years since becoming a member of Community Friendship in 1996. The state presented evidence that at the time of the incident, appellant had been counseling M.B. on a personal situation involving an ex-boyfriend, and was making visits to her home.

{¶4} According to M.B., on the date of the incident her mother was working and she was home alone. Appellant called M.B. in the morning and asked if anyone was home with her and whether he could stop by and bring her breakfast. M.B. agreed and after delivering breakfast, appellant asked to come inside the house.

{¶5} M.B. testified that once inside, appellant began discussing his marital problems, and the conversation quickly turned to issues regarding sex and sexual acts. According to M.B., appellant told her that his wife did not want to engage in certain sex acts with him. M.B. stated that she repeatedly told appellant that she felt uncomfortable about his statements, but did not "want to be rude and tell him to stop talking about [sex and sexual acts]," because he was her pastor and she trusted him. M.B. testified that at one point, appellant asked her whether she thought "if a man entered a woman, and he didn't move, would that be sex?" M.B. replied that she thought it would be sex. M.B. also testified that appellant asked her to demonstrate the "doggie-style" sexual position.

{¶6} According to M.B., appellant then began discussing fellatio, stating that it was "another thing that his wife didn't want to do." He asked M.B. if she would perform fellatio on him. M.B. testified that appellant took off his coat, "rushed" over to an ottoman in the room, and pulled down his pants and underwear, holding his penis and exposing it to M.B.. Appellant asked M.B. to come over to him. According to M.B., she turned her head away because she "didn't want to see [his penis]," and told appellant that she did not want to perform fellatio on him. Appellant then pulled up his pants and walked over to M.B.. He told her that he was sorry, and that he loved her. Appellant asked M.B. to hug him, and to let him "hold" her. M.B. testified that she told appellant she felt uncomfortable hugging him because he was her pastor.

{¶7} According to M.B., appellant then told her that a covenant in the Bible required both of them to touch each other's "private parts" in order for them "to be ashamed like we were both keeping a secret." At that point, appellant placed his hand down the front of M.B.'s pants beneath her underwear and touched her stomach and pubic hair. M.B. stated that appellant told her that it would be better if she "just touched him back." She testified that she pulled appellant's wrist away and told him to stop.

{¶8} M.B. informed her mother of the incident and reported it to the Fairfield Police Department. Detective Sandra Sears interviewed both M.B. and appellant. Prior to questioning, Detective Sears gave appellant his Miranda warnings and appellant signed a waiver of his rights. Appellant then completed a written statement, which was admitted without objection at trial. In the statement, appellant admitted to being at M.B.'s house on the day in question, and stated that their conversation "got intense about sex [and] drugs." According to appellant, he asked M.B. if she wanted to perform fellatio on him "because of the way she was talking." He also admitted to touching her stomach to "make an agreement that this was over and it would never happen again." Detective Sears testified that during the interview, appellant admitted to pulling down his pants, but denied exposing his penis to M.B. According to Sears, appellant also admitted to touching M.B.'s pubic hair.

{¶9} Appellant was tried by a jury and convicted of the attempted sexual battery and sexual imposition charges. The trial court sentenced him to 15 months imprisonment on the attempted sexual battery charge, and 30 days imprisonment on the sexual imposition charge. The trial court ordered the sexual imposition sentence to run concurrently with the sentence for attempted sexual battery.

{¶10} Appellant appeals his convictions, raising four assignments of error for our review. For ease of discussion, appellant's assignments of error will be addressed out of order.

{¶11} Assignment of Error No. 1:

{¶12} "THE TRIAL COURT VIOLATED [THE] SUBSTANTIAL RIGHTS OF DEFENDANT-APPELLANT BY FAILING TO SUSTAIN HIS PRETRIAL CRIM.R. 12(B) MOTION(S) FOR DISMISSAL WHERE A DEFECTIVE INDICTMENT WHICH LACKS [THE] ESSENTIAL ELEMENTS OF THE OFFENSES FAILED TO CHARGE AN OFFENSE."

{¶13} In his first assignment of error, appellant argues that his constitutional rights were violated because the trial court failed to sustain his pretrial motion to dismiss the indictment pursuant to Crim.R. 12(B). Specifically, appellant contends that count one of the indictment for attempted sexual battery under R.C. 2923.02 and R.C. 2907.03(A)(12) was defective because the state omitted "knowingly" as the requisite intent element of attempt, and omitted "recklessly" as the requisite intent element of sexual battery.

{¶14} The Ohio Supreme Court has determined that the mental state of the offender is part of every criminal offense in Ohio except for those offenses imposing strict liability. State v. Lozier, 101 Ohio St.3d 161, 2004-Ohio-732, at ¶18. In order to be found guilty of a criminal offense, R.C. 2901.21(A)(2) requires a person to have "the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense." Id., quoting R.C. 2901.21(A)(2). Therefore, in resolving this assignment of error, we must first examine the attempt and sexual battery statutes to determine the applicable culpability required for the commission of each offense.

Criminal Attempt

{¶15} Ohio's attempt statute, R.C. 2923.02(A), provides: "[n]o person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense." An attempt to commit an offense is an offense in itself. See State v. Lawrence, Butler App. No. CA2007-01-017, 2008-Ohio-1354, ¶29. The committee comments to R.C. 2923.02(A) provide that an attempt must be purposely or knowingly committed.

{¶16} In construing the statute, the Ohio Supreme Court has concluded that "the essential elements of a criminal attempt are the me[n]s rea of purpose or knowledge, and conduct directed toward the commission of an offense." State v. Woods (1976), 48 Ohio St.2d 127, 131, death penalty vacated (1978), 438 U.S. 910, 98 S.Ct. 3133, overruled on other grounds by State v. Downs (1977), 51 Ohio St.2d 47. A criminal attempt is complete when a defendant's conduct or acts constitute a substantial step in a sequence of events designed to result in the perpetration of a crime. See State v. Kane (Apr. 23, 1984), Clermont App. No. CA83-09-076, 1984 WL 3309 at *3, citing Woods at paragraph one of the syllabus. A substantial step involves conduct which is "strongly corroborative of the actor's criminal purpose." Woods at paragraph one of the syllabus.

{¶17} In accordance with R.C. 2923.02(A), Ohio appellate courts have determined that the culpable mental state for attempt is either purposely or knowingly, depending on the culpability required to commit the underlying offense. See e.g., State v. Taylor, Lorain App. No. 06CA009000, 2008-Ohio-1462, ¶56 (concluding that because the culpable mental state to commit aggravated arson is knowingly, the attempted commission of the crime also requires the culpability of knowingly); see, also State v. Patterson, Trumbull App. No. 96-T-5439, 1998 WL 310737, at *4 (noting that "since purpose is the culpable mental state required to commit murder under R.C. 2903.02, then the commission of attempted murder pursuant to R.C. 2923.02 requires purposefulness as well"). However, we note that there is an absence of case law on the required mens rea for the commission of an attempt when the underlying crime is one of strict liability. R.C. 2923.02(A) provides little guidance on the intent of the general assembly with respect to this issue.

Sexual Battery

{¶18} Division (A)(12) of R.C. 2907.03 provides, in pertinent part:

{¶19} "(A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply:

{¶20} "* * *

{¶21} "(12) The other person is a minor, the offender is a cleric, and the other person is a member of, or attends, the church or congregation...

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