State v. Mole

• Decision Date: 28 July 2016
• Docket Number: No. 2013–1619.,2013–1619.
• Citation: 149 Ohio St.3d 215,2016 Ohio 5124,74 N.E.3d 368
• Parties: The STATE of Ohio, Appellant, v. MOLE, Appellee.
• Court: Ohio Supreme Court

149 Ohio St.3d 215

74 N.E.3d 368

2016 Ohio 5124

The STATE of Ohio, Appellant,

v.MOLE, Appellee.

No. 2013–1619.

Supreme Court of Ohio.

Submitted July 9, 2014.

Decided July 28, 2016.

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellant.

John Fatica, Cleveland, and Richard J. Perez, for appellee.

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and Kathryn L. Kreps, Assistant Attorney General, urging reversal for amicus curiae, Ohio Attorney General Michael DeWine.

O'CONNOR, C.J.

{¶ 1} In this appeal, we address the validity of a facial constitutional attack, on equal-protection grounds, against a subdivision of Ohio's sexual-battery statute, R.C. 2907.03(A)(13). R.C. 2907.03(A)(13) prohibits sexual conduct when one person is a minor and "the offender is a peace officer, and the offender is more than two years older than the other person."

{¶ 2} R.C. 2907.03 is generally a valid scheme insofar as it imposes strict liability for sexual conduct on various classes of offenders who exploit their victims through established authoritarian relationships. But subdivision (A)(13) irrationally imposes that same strict liability on peace officers even when there is no occupation-based relationship between the officer and the victim. We therefore conclude that R.C. 2907.03(A)(13) is an arbitrarily disparate treatment of peace officers that violates equal protection under the Ohio Constitution and the United States Constitution. Accordingly, we affirm the decision of the Eighth District Court of Appeals declaring R.C. 2907.03(A)(13) facially unconstitutional.

RELEVANT BACKGROUND

{¶ 3} Appellee, Matthew Mole, was a police officer. He first encountered J.S. when J.S. initiated a conversation with Mole through the use of a dating application on his mobile phone.

{¶ 4} J.S. claimed to be 18 years old and a senior in high school. Mole was 35. Upon J.S.'s invitation, Mole came to J.S.'s house at 3:00 a.m. on December 19, 2011, and was led into an unlit sunroom at the back of the house. The two undressed and performed oral sex on each other in the dark. They were discovered by J.S.'s mother shortly after. At that point, Mole learned, for the first time, that J.S. was 14 years old.

{¶ 5} Mole was charged with one count of unlawful sexual conduct with a minor, R.C. 2907.04, which prohibits sexual conduct with a minor between the ages of 13 and 15 years old when the offender is 18 or older and knows the other person's age or is reckless in that regard. He was also charged with one count of sexual battery under R.C. 2907.03(A)(13), which prohibits sexual conduct by a peace officer with a minor when the officer is more than two years older than the minor.

{¶ 6} Before trial, Mole moved the trial court to declare R.C. 2907.03(A)(13) unconstitutional and to dismiss the sexual-battery charge from the indictment. Mole unsuccessfully argued that the statute's lack of a mens rea and failure to connect a defendant's occupational status with proscribed sexual activity violates equal protection and due process. The trial court summarily denied the motion.

{¶ 7} At trial, Mole elected to have the unlawful-sexual-conduct charge tried to the jury and the sexual-battery charge tried to the bench. The jury became deadlocked, the court declared a mistrial, and the state dismissed the indictment as to the charge under R.C. 2907.04.

{¶ 8} But the bench trial resulted in Mole's conviction for sexual battery under R.C. 2907.03(A)(13), which makes peace officers strictly liable for sexual conduct with anyone under the age of 18 when the offender is more than two years older. Thus, despite the jury's inability to find that Mole was reckless with regard to J.S.'s age, the state was nevertheless able to obtain Mole's conviction for the same conduct based solely on Mole's chosen profession, i.e., without proving that Mole knew or was reckless about J.S.'s age, without proving that J.S. knew that Mole was a peace officer, and without proving that Mole's profession and status as a peace officer had any relation to his acquaintance with J.S. or the sexual conduct. Mole was sentenced to two years in prison.

{¶ 9} Mole appealed to the Eighth District Court of Appeals, arguing that R.C. 2907.03(A)(13) violated the Equal Protection and Due Process Clauses of both the Ohio Constitution and the United States Constitution. In a split decision,¹ the appellate court concluded that R.C. 2907.03(A)(13) violated equal protection and was facially unconstitutional. We accepted the state's discretionary appeal, in which the state asserts that R.C. 2907.03(A)(13) does not violate the Equal Protection Clause of the United States Constitution or the Ohio Constitution.

ANALYSIS

{¶ 10} At the outset, we are mindful of our duty to defer to the General Assembly:

A statute is presumed constitutional. "In enacting a statute, it is presumed that * * * [c]ompliance with the constitutions of the state and of the United States is intended." R.C. 1.47(A). See also State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d 547, ¶ 6. Courts have a duty to liberally construe statutes "to save them from constitutional infirmities." Desenco, Inc. v. Akron, 84 Ohio St.3d 535, 538, 706 N.E.2d 323 (1999).

Mahoning Edn. Assn. of Dev. Disabilities v. State Emp. Relations Bd., 137 Ohio St.3d 257, 2013-Ohio-4654, 998 N.E.2d 1124, ¶ 13. However, this presumption of constitutionality is rebuttable. State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus.

{¶ 11} The presumption of constitutionality is rebutted only when it appears beyond a reasonable doubt that the statute and the Constitution are clearly incompatible. Id.; State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502, ¶ 7. When incompatibility is clear, it is the duty of this court to declare the statute unconstitutional. Cincinnati City School Dist. Bd. of Edn. v. Walter, 58 Ohio St.2d 368, 383, 390 N.E.2d 813 (1979).

{¶ 12} With these principles in mind, we turn to the Constitutions and our analysis of R.C. 2907.03(A)(13).

{¶ 13} Article I, Section 2 of the Ohio Constitution provides that "[a]ll political power is inherent in the people. Government is instituted for their equal protection and benefit * * *." The Fourteenth Amendment to the United States Constitution provides that "[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws."

{¶ 14} Although this court previously recognized that the Equal Protection Clauses of the United States Constitution and the Ohio Constitution are substantively equivalent and that the same review is required, Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 60, 717 N.E.2d 286 (1999) ("the federal and Ohio Equal Protection Clauses are to be construed and analyzed identically"), we also have made clear that the Ohio Constitution is a document of independent force, Arnold v. Cleveland, 67 Ohio St.3d 35, 42, 616 N.E.2d 163 (1993). As we explained in Arnold:

The United States Supreme Court has repeatedly reminded state courts that they are free to construe their state constitutions as providing different or even broader individual liberties than those provided under the federal Constitution. See, e.g., City of Mesquite v. Aladdin's Castle, Inc. (1982), 455 U.S. 283, 293, 102 S.Ct. 1070, 1077, 71 L.Ed.2d 152, 162 (" * * * [A] state court is entirely free to read its own State's constitution more broadly than this Court reads the Federal Constitution, or to reject the mode of analysis used by this Court in favor of a different analysis of its corresponding constitutional guarantee."); and California v. Greenwood (1988), 486 U.S. 35, 43, 108 S.Ct. 1625, 1630, 100 L.Ed.2d 30, 39 ("Individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution."). See, also, PruneYard Shopping Ctr. v. Robins (1980), 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741, 752. Further, in Michigan v. Long (1983), 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476–3477, 77 L.Ed.2d 1201, 1214–1215, the Supreme Court reinforced its comments in this area by declaring that the state courts' interpretations of state constitutions are to be accepted as final, as long as the state court plainly states that its decision is based on independent and adequate state grounds.

Arnold at 41–42, 616 N.E.2d 163.

{¶ 15} Arnold stands as the court's first clear embrace of Justice William J. Brennan's watershed article, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977), which has been described as a "plea for a renaissance in state constitutionalism." Kahn, Interpretation and Authority in State Constitutionalism, 106 Harv.L.Rev. 1147 (1993).

{¶ 16} Notably, however, in the wake of Arnold, we have often, but inconsistently, heeded the hortatory call to the new federalism.

{¶ 17} Four years after our decision in Arnold, this court disavowed the "new federalism," at least in the context of the constitutional rights protecting individuals from searches and seizures by the government. State v. Robinette, 80 Ohio St.3d 234, 238, 685 N.E.2d 762 (1997) ("Despite this wave of New Federalism, where the [state and federal constitutional] provisions are similar and no persuasive reason for a differing interpretation is presented, this court has determined that protections afforded by Ohio's Constitution are coextensive with those provided by the United States Constitution"). But two years later, in Simmons–Harris v. Goff, we again made clear that even when we previously have discussed provisions in the federal and Ohio Constitutions jointly, we will not "irreversibly tie ourselves" to an interpretation of the language of the Ohio Constitution just because it is consistent with...