State v. Mundy

Decision Date16 December 1994
Docket NumberNo. 14156,14156
Citation99 Ohio App.3d 275,650 N.E.2d 502
PartiesThe STATE of Ohio, Appellee, v. MUNDY, Appellant. *
CourtOhio Court of Appeals

Mathias H. Heck, Jr., Montgomery County Pros. Atty., and Carley J. Ingram, Asst. Pros. Atty., Appellate Div., for appellee.

Dwight D. Brannon, Dayton, for appellant.

WILSON, Judge.

Defendant Thomas Mundy appeals from his conviction and sentence on twelve counts of gross sexual imposition, R.C. 2907.05(A)(4), for having sexual contact with his three minor grandchildren.

Mundy presents eight assignments of error on appeal. Those assignments concerning the presentation of evidence against him and the conduct of the prosecuting attorney will be overruled. Two assignments concerning the instructions given to the jury on the culpable mental state required for these offenses and Mundy's claim of intoxication as it relates to that culpable mental state will be sustained. Because these errors denied Mundy his right to a fair trial, his convictions must be reversed and the case remanded for a new trial.

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The assignments of error presented by Mundy are discussed below in the order in which they were presented.


"This court should reverse appellant's conviction and dismiss the charges because [R.C.] § 2907.05(A) is void for vagueness and overbroad in violation of the Fourteenth Amendment to the United States Constitution and Art. I, § 10 of the Ohio Constitution."

Mundy argues that the gross sexual imposition statute, R.C. 2907.05(A)(4), formerly 2907.05(A)(3), is unconstitutional, both facially and as applied in this case. This argument, which was raised by Mundy in written motion during the trial and in post-trial motions, was rejected by the trial court.


Facial Validity

All legislative enactments enjoy a strong presumption of constitutionality. State v. Collier (1991), 62 Ohio St.3d 267, 581 N.E.2d 552. In arguing that a statute is vague or overly broad, a defendant has the burden to overcome that presumption and to prove the defect asserted beyond a reasonable doubt.

" * * * '[i]n order to prove such assertion, the challenging party must show that the statute is vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. * * * " Coates v. Cincinnati (1971), 402 U.S. 611, 614 [91 S.Ct. 1686, 1688, 29 L.Ed.2d 214, 217]. In other words, the challenger must show that upon examining the statute, an individual of ordinary intelligence would not understand what he is required to do under the law. Thus, to escape responsibility * * *, appellee must prove, beyond a reasonable doubt, that the statute was so unclear that he could not reasonably understand that it prohibited the acts in which he engaged.' " Collier, supra, 62 Ohio St.3d at 269, 581 N.E.2d at 553-554.

In examining the void-for-vagueness doctrine, a three-part analysis is applied to the challenged statutory language. Collier, supra. First, it must be determined whether R.C. 2907.05(A)(4) provides adequate notice and fair warning of what conduct is prohibited so that persons of ordinary intelligence can conform their conduct to the dictates of the statute. Id.

R.C. 2907.05 provides in pertinent part:

"(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact

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with the offender; or cause two or more other persons to have sexual contact when any of the following applies:

" * * *

"(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person."

"Sexual contact" is defined in R.C. 2907.01(B):

" 'Sexual contact' means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person."

R.C. 2901.22 provides, inter alia:

"(A) A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature."

Mundy argues, and the state concedes, that R.C. 2907.05(A)(4) does not impose strict liability. Although the language used in that provision fails to specify any culpability, the "sexual contact" that is an essential element of R.C. 2907.05(A)(4) is defined in R.C. 2907.01(B) as the touching of certain described parts of the human body for the purpose of sexually arousing or gratifying either the offender or the victim. Thus, the culpable mental state required for a conviction of R.C. 2907.05(A)(4) is supplied by the statutory definition of "sexual contact" in R.C. 2907.01(B). In other words, in proving the violations of R.C. 2907.05(A)(4) in this case, it was incumbent upon the state to prove not only that Thomas Mundy touched a person less than thirteen years of age or caused a person under age thirteen to touch him on the proscribed parts of the body listed in R.C. 2907.01(B), including the genitals and in the case of a female the breasts, but also that Mundy committed these acts for the specific purpose or intention of sexually arousing or gratifying either himself or the victim. In re Grigson (Apr. 15, 1991), Scioto App. No. 1881, unreported, 1991 WL 62177; State v. Schaim (1992), 65 Ohio St.3d 51, 57, 600 N.E.2d 661, 666, at fn. 4. To the extent that State v. Astley (1987), 36 Ohio App.3d 247, 523 N.E.2d 322, and State v. Aiken (June 10, 1993), Cuyahoga App. No. 64627, unreported, 1993 WL 204646, held otherwise, we are not persuaded by the reasoning in those cases and decline to follow such.

We believe that the conduct forbidden by R.C. 2907.05(A)(4) is readily comprehensible and understandable and that a person of ordinary intelligence would not have to guess as to its meaning. Thomas Mundy argues, however, that the

Page 288

statute lacks clearly defined standards and does not provide adequate notice and fair warning of the prohibited conduct because the required specific intent of "sexual arousal or gratification," which is part of the definition of "sexual contact" and an essential element of R.C. 2907.05(A)(4), is not defined by the Revised Code. Moreover, Mundy asserts that it is unclear from the conflicting case law whether a subjective or an objective test is applied to determine the existence of sexual arousal or gratification. We are not persuaded by this argument.

As we have noted, in proving a violation of R.C. 2907.05(A)(4), one of the elements that the state must prove is the defendant's subjective purpose or specific intention. In order to convict a defendant of this offense, the state is obligated to prove beyond a reasonable doubt that the defendant's purpose or specific intention in touching the victim on the proscribed areas of the body set out in R.C. 2907.01(B) was sexual arousal or gratification of either the perpetrator or the victim.

Proof of an accused's purpose or specific intent invariably requires circumstantial evidence, absent an admission. In Grigson, supra, the court observed:

"Appellant essentially contends that there was no direct evidence of the mens rea element concerning arousal so as to distinguish between a sexual act and a mere physical assault. The determination of a defendant's mental state, absent some comment on his or her part, must of necessity be determined by the nature of the act when viewed in conjunction with the surrounding facts and circumstances. State v. Lott (1990), 51 Ohio St.3d 160, 168, 555 N.E.2d 293, 302. This is, in fact, the well-recognized process of inferential reasoning. This process by necessity incorporates an objective mechanism or standard in determining the defendant's state of mind by the use of circumstantial evidence. The trier of fact reviews the defendant's conduct in light of the surrounding facts and circumstances and infers a purpose or motive. This conclusion by the trier of fact reflects the purpose that an ordinary prudent person would ascribe to a defendant's conduct."

With respect to prosecutions such as this one under R.C. 2907.05(A)(4):

"[T]he proper method is to permit the trier of fact to infer from the evidence presented at trial whether the purpose of the defendant was sexual arousal or gratification by his contact with those areas of the body described in R.C. 2907.01. In making its decision the trier of fact may consider the type, nature and circumstances of the contact, along with the personality of the defendant. From these facts the trier of facts may infer what the defendant's motivation was in making the physical contact with the victim. If the trier of fact determines, that the defendant was motivated by desires of sexual arousal or gratification, and

Page 289

that the contact occurred, then the trier of fact may conclude that the object of the defendant's motivation was achieved." State v. Cobb (1991), 81 Ohio App.3d 179, 185, 610 N.E.2d 1009, 1013.

Simply put, R.C. 2907.05(A)(4) forbids touching a person under age thirteen or causing a person under age thirteen to touch the offender on certain parts of the body, including the genitals, buttocks, or in the case of a female the breasts, for the specific purpose of sexually arousing or gratifying either person. Whether that touching was undertaken for the purpose of sexual arousal or gratification must be inferred from the type, nature, and circumstances surrounding the contact. In other words, would an ordinary prudent person or a reasonable person sitting as a juror perceive from the defendant's actions, and all of the surrounding facts and circumstances, that the defendant's purpose or...

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