State v. Mole, No. 2013–1619.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtO'CONNOR, C.J.
Citation149 Ohio St.3d 215,2016 Ohio 5124,74 N.E.3d 368
Docket NumberNo. 2013–1619.
Decision Date28 July 2016
Parties The STATE of Ohio, Appellant, v. MOLE, Appellee.

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.


74 N.E.3d 372

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.

149 Ohio St.3d 215

{¶ 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)

149 Ohio St.3d 216

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.

74 N.E.3d 373

{¶ 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

149 Ohio St.3d 217

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).
74 N.E.3d 374

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).

149 Ohio St.3d 218

{¶ 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

74 N.E.3d 375

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48 practice notes
  • State v. Dibble, No. 2018-0552
    • United States
    • United States State Supreme Court of Ohio
    • February 20, 2020
    ...the Ohio Constitution might offer greater rights and protections to our citizenry under these circumstances. See State v. Mole , 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 20 ; State v. Brown , 143 Ohio St.3d 444, 2015-Ohio-2438, 39 N.E.3d 496, ¶ 23 ; State v. Farris , 109 Ohio St......
  • State v. Noling, No. 2014–1377.
    • United States
    • United States State Supreme Court of Ohio
    • December 21, 2016
    ...is coextensive with, or stronger than, that of the federal Constitution, we cite both throughout this opinion. E.g., State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 14–23 (plurality opinion) (Article I, Section 2 of Ohio's Constitution, the Equal Protection Clause, provi......
  • Libertarian Party of Ohio v. Husted, No. 16AP–496
    • United States
    • United States Court of Appeals (Ohio)
    • September 21, 2017
    ...of statutes, we are guided by the presumption that enactments of the General Assembly are constitutional. State v. Mole , 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 10. See Haight v. Minchak , 146 Ohio St.3d 481, 2016-Ohio-1053, 58 N.E.3d 1135, ¶ 11, quoting State ex rel. Jackman ......
  • State v. Bembry, No. 2016–0238
    • United States
    • United States State Supreme Court of Ohio
    • October 10, 2017
    ...protections within the 151 Ohio St.3d 510Ohio Constitution, 90 N.E.3d 899we are entitled to do so. Id ;see also State v. Mole , 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 20 (plurality opinion).{¶ 25} Bembry and Singh advance three arguments in support of more expansive constituti......
  • Request a trial to view additional results
47 cases
  • State v. Dibble, No. 2018-0552
    • United States
    • United States State Supreme Court of Ohio
    • February 20, 2020
    ...the Ohio Constitution might offer greater rights and protections to our citizenry under these circumstances. See State v. Mole , 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 20 ; State v. Brown , 143 Ohio St.3d 444, 2015-Ohio-2438, 39 N.E.3d 496, ¶ 23 ; State v. Farris , 109 Ohio St......
  • State v. Noling, No. 2014–1377.
    • United States
    • United States State Supreme Court of Ohio
    • December 21, 2016
    ...is coextensive with, or stronger than, that of the federal Constitution, we cite both throughout this opinion. E.g., State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 14–23 (plurality opinion) (Article I, Section 2 of Ohio's Constitution, the Equal Protection Clause, provi......
  • Libertarian Party of Ohio v. Husted, No. 16AP–496
    • United States
    • United States Court of Appeals (Ohio)
    • September 21, 2017
    ...of statutes, we are guided by the presumption that enactments of the General Assembly are constitutional. State v. Mole , 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 10. See Haight v. Minchak , 146 Ohio St.3d 481, 2016-Ohio-1053, 58 N.E.3d 1135, ¶ 11, quoting State ex rel. Jackman ......
  • State v. Bembry, No. 2016–0238
    • United States
    • United States State Supreme Court of Ohio
    • October 10, 2017
    ...protections within the 151 Ohio St.3d 510Ohio Constitution, 90 N.E.3d 899we are entitled to do so. Id ;see also State v. Mole , 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 20 (plurality opinion).{¶ 25} Bembry and Singh advance three arguments in support of more expansive constituti......
  • Request a trial to view additional results

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