State v. Hooper, 78-668

• Court: United States State Supreme Court of Ohio
• Citation: 57 Ohio St.2d 87,11 O.O.3d 250,386 N.E.2d 1348
• Docket Number: No. 78-668,78-668
• Parties: , 11 O.O.3d 250 The STATE of Ohio, Appellant, v. HOOPER, Appellee.
• Decision Date: 21 March 1979

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57 Ohio St.2d 87 386 N.E.2d 1348, 11 O.O.3d 250 The STATE of Ohio, Appellant,
v.
HOOPER, Appellee. No. 78-668. Supreme Court of Ohio. March 21, 1979. [386 N.E.2d 1349]
Syllabus by the Court

Within the purview of R.C. 2907.12(A), a finger is not an "object."

The instant cause arose out of an incident in which the appellee, John D. Hooper, robbed a victim at knife point and then penetrated her vagina with his finger. Hooper was subsequently convicted of aggravated robbery and felonious sexual penetration and sentenced to concurrent 5-25 year sentences for each offense. The Court of Appeals reversed the sexual-penetration conviction.

The cause is now before this court pursuant to an allowance of the state's motion for leave to appeal.

Simon L. Leis, Jr., Pros. Atty., William E. Breyer and Merlyn D. Shiverdecker, Cincinnati, for appellant.

Timothy A. Hickey, Cincinnati, for appellee.

WILLIAM B. BROWN, Justice.

The sole issue raised by the instant cause is whether, under Ohio's felonious sexual-penetration statute, a finger is an "object."

R.C. 2907.12 provides, in pertinent part:

"(A) No person without privilege to do so shall insert any Instrument, apparatus or Other object into the vaginal or anal cavity of another, not the spouse of the offender, when any of the following apply:

"(1) The offender purposely compels the other person to submit by force or threat of force." (Emphasis added.)

Appellant argues that the dictionary definition of an

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object applies to R.C. 2907.12(A). It then concludes that, since the dictionary defines an object as "anything (or "something") visible or tangible," ¹ a finger is an object. We are not persuaded by that reasoning.

" The primary purpose of the judiciary in the interpretation or construction of statutes is to * * * ascertain the legislative will." Henry v. Central Natl. Bank (1968), 16 Ohio St.2d 16, 242 N.E.2d 342, 345, paragraph two of the syllabus; 2A Sutherland on Statutory Construction 15, Section 45.05, and cases cited therein. Moreover, where statutory language clearly expresses that legislative intent, that language will not be construed by the courts. Provident Bank v. Wood (1973), 36 Ohio St.2d 101, 106, 304 N.E.2d 378; Katz v. Dept. of Liquor Control (1957), 166 Ohio St. 229, 231, 141 N.E.2d 294. Words are not absolutes, however. Because their meanings may vary according to context, custom and usage (American Oil Co. v. State Highway Board (1962), 122 Vt. 496, 177 A.2d 358), statutory language cannot be declared clear or ambiguous until the context in which it appears or the connotations which it may carry are taken into consideration.

R.C. 2907.12 is a sex-offense statute. Of the other 19 jurisdictions which specifically prohibit penetration of an individual's vagina or anus by something other than the male sex organ, 12 use the term "object" and clearly exclude parts of the body from that term. ² While the language

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used by [386 N.E.2d 1350] those 12 jurisdictions does not control our reading of Ohio law, ³ it suggests that the broad dictionary definition of an object does not necessarily apply to R.C. 2907.12(A) and that, therefore, this court must construe the statute in order to determine legislative intent.

R.C. 2907.12(A) prohibits the insertion of "any instrument, apparatus or other object." The statute lists three nouns two specific and the third, general. The general term is immediately preceded by the word "other" a word which refers to the two specific nouns in the list and suggests legislative intent to limit the scope of the general noun to those objects having the characteristics of those specific nouns (Glidden Co. v. Glander (1949), 151 Ohio St. 344, 350, 86 N.E.2d 1). In addition, R.C. 2907.12 is a criminal statute which must be strictly construed against the state (R.C. 2901.04(A)).

Since R.C. 2907.12 lists specific terms followed by a catchall word which is linked to those specific terms by the word "other," and since the statute must be construed strictly, it appears to be subject to the doctrine of Ejusdem generis. ⁴ State v. Aspell (1967), 10 Ohio St.2d 1, 225 N.E.2d 226, paragraph two of the syllabus, describes the operation of this doctrine in the following manner:

" Under the rule of Ejusdem generis, where in a statute terms are first used which are confined to a particular class of objects having well-known and definite features and characteristics, and then afterwards a term having perhaps

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a broader signification is conjoined, such latter term is, as indicative of legislative intent, to be considered as embracing only things of a similar character as those comprehended by the preceding limited and confined terms."

Once the doctrine of Ejusdem generis is applied to Ohio's sexual-penetration statute, it becomes clear that a finger is not an "object" within the purview of R.C. 2907.12(A). In general, dictionaries define instruments and apparatuses as implements or tools, or groups of implements or tools. One characteristic common to instruments and apparatuses is that they are inanimate. (The American Heritage Dictionary, for instance, defines an instrument as a "mechanical implement.") ⁵ Since, under the doctrine of Ejusdem generis, nothing may be construed to fall within the catchall term "object" unless it shares the characteristics of instruments and apparatuses, only inanimate objects fall within the purview of R.C. 2907.12(A). A finger is not inanimate. It is part of the human body. Therefore, a finger is not an object under R.C. 2907.12(A), and Ohio's sexual-penetration statute does not encompass digital penetration. ⁶ [386 N.E.2d 1351] Since the activity for which the defendant was convicted under R.C. 2907.12 was limited to digital penetration, his conviction must be reversed.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

PAUL W. BROWN, SWEENEY and McCORMAC, JJ., concur.

CELEBREZZE, C. J., and HERBERT, J., dissent.

HOLMES, J., not participating.

McCORMAC, J., of the Tenth Appellate District, sitting for LOCHER, J.

CELEBREZZE, Chief Justice, dissenting.

A resolution of the issue presented in this appeal requires not only a judicial analysis of one specific statute but an examination of the total range of individual conduct the General Assembly sought to proscribe by enacting that portion of R.C. Chapter 2907 dealing with the category of offenses known as sexual assaults. R.C. 2907.12(A) derives its meaning from the context in which it is placed and by a construction in harmony with other statutes dealing with related offenses. As indicated in 50 Ohio Jurisprudence 2d 199, Statutes, Section 221:

" * * * A code of statutes relating to one subject is presumed to be governed by one spirit and policy, and intended to be consistent and harmonious, and All of the several sections are to be considered in order to arrive at the meaning of any part, unless a contrary intent is clearly manifest." (Emphasis added.)

The offenses that are described in that portion of R.C. Chapter 2907 dealing with sexual assaults include the following: R.C. 2907.02, rape; R.C. 2907.03, sexual battery; R.C. 2907.04, corruption of a minor; R.C. 2907.05, gross sexual imposition; and R.C. 2907.06, sexual imposition. A scrutiny of the foregoing statutes reveals two specifically defined modes of sexual activity that are prohibited "sexual conduct" and "sexual contact," as defined in R.C. 2907.01(A) and (B), respectively. ⁷

In addition to these statutory provisions the General Assembly enacted R.C. 2907.12 to deal with a third category of prohibited sexual activity. The conduct delineated does not incorporate the aforementioned definitions set forth in R.C. 2907.01, but is described as the felonious Penetration or Insertion by "any instrument, apparatus, or other object into the vaginal or anal cavity of another." (Emphasis added.)

In summary, the sexual assaults encompassed by R.C. Chapter 2907 involve sexual conduct, sexual contact, and felonious sexual penetration. Since it is beyond dispute that the act of the defendant-appellee is a sexual assault, the question becomes "where in the aforementioned statutory scheme is this factual scenario to be found?" The majority opinion in the Court of Appeals noted that appellee's conduct would "come within the scope of the crime of gross sexual imposition,...