State v. Thompson

• Citation: 150 Ohio App.3d 641,2002 Ohio 7098,782 N.E.2d 688
• Decision Date: 20 December 2002
• Docket Number: No. 1578.,1578.
• Parties: The STATE of Ohio, Appellee, v. THOMPSON, Appellant.
• Court: Ohio Court of Appeals

782 N.E.2d 688

150 Ohio App.3d 641

2002 Ohio 7098

The STATE of Ohio, Appellee, v. THOMPSON, Appellant.

No. 1578.

Court of Appeals of Ohio, Second District, Darke County.

Decided December 20, 2002.

Phillip D. Hoover, Duke County Assistant Prosecuting Attorney, for appellee.

Jerry C. Stollings, for appellant.

BROGAN, Judge.

{¶ 1} The present case involves the rather novel situation of a person being found guilty of a probation violation for entering into marriage. Appellant, Travis Thompson, was indicted on January 1, 2001, for having unlawful sexual contact with a minor in June 2000. The crime in the indictment was stated as a fourth-degree felony (a violation of R.C. 2907.04), even though Thompson was 18 and the victim was 15 at the time of the offense.¹ The record does not reflect the details of the charge, but Thompson apparently impregnated a 15-year-old girl. After first pleading not guilty, Thompson later pleaded guilty to the fourth-degree felony, despite the fact that under R.C. 2907.04(B)(2), unlawful sexual contact becomes a first-degree misdemeanor if the offender is less than four years older than the other party.

{¶ 2} Subsequently, on July 30, 2001, the trial court sentenced Thompson to 36 months of community control, with various other sanctions included. The ninth condition of community control stated that Thompson would "[h]ave no contact with persons under 18 years of age unless approved by Adult Probation." The judgment entry imposing community control also provided that "a violation of the community control sanction imposed herein shall lead to more restrictive sanctions up to and including a prison term of eight (8) months."

{¶ 3} On December 4, 2001, the probation department filed an affidavit in support of issuance of arrest warrant upon probation violation. The affidavit alleged that Thompson had violated his probation because he was "ordered not to have contact with anyone under the age of 18, but on November 10, 2001, the Defendant wed Crystal Nicole Slayton, being 16 years of age." A letter from John Tabler, probation officer, was also filed. In the letter, Tabler informed Thomson that he was to appear at a hearing at which bond would be set. Thompson was further informed that a probable-cause hearing would be scheduled to determine if Thompson had committed the following violations:

{¶ 4} "1. The Defendant was ordered to have no contact with persons under 18 years of age unless approved by the Adult Probation Department.

{¶ 5} "a.) On November 10, 2001, the Defendant wed Crystal Nicole Slayton, being 16 years of age, in Greenville, Ohio {¶ 6} "b.) On December 04, 2001, the Defendant stated that his wife, Crystal Nicole Thompson, being 16 years of age, has resided with him since their marriage on November 10, 2001."

{¶ 7} Thompson appeared in court on December 5, 2001, and the court set a $1,000 cash, surety, or property bond. A special condition of the bond was that Thompson have "[n]o contact with anyone under age 18" (emphasis sic). Therefore, as a condition of the bond, Thompson was precluded from having contact with his wife.

{¶ 8} Subsequently, Thompson appeared for a probable-cause hearing. At the hearing, Thompson stipulated to the facts as alleged, i.e., that he had wedded Crystal, a 16-year-old, on November 10, 2001, and had continued to live with her after their marriage. At the time of the marriage, Thompson was 19 years old. Thompson did not, however, concede that he had violated community-control requirements. Instead, Thompson argued that he had a fundamental right to marry and that the state could not impinge on family rights in connection with probation. There was no dispute that Thompson had complied with all other conditions of his probation, including supporting his minor child, obtaining a job, furthering his education, and so forth.

{¶ 9} After hearing argument from the state and the defense, the trial court found that a probation violation had occurred. The court then reimposed the prior terms and conditions of the original 36-month term of community control. Additionally, the court ordered further sanctions, including a 45-day term in jail, with workrelease privileges as might later be granted, and payment of additional court costs, attorney fees, and costs of prosecution. A stay of the sentence was granted pending appeal.

{¶ 10} Thompson timely appealed and presents the following single assignment of error:

{¶ 11} "Whether the trial court's finding that Appellant had committed a probation violation for marrying was not supported by the law because the trial court interpreted a requirement of probation in an overly broad manner thereby infringing on Appellant's fundamental right to marry."

{¶ 12} After reviewing the issues, we find that the assignment of error has merit and should be sustained. Accordingly, the trial court judgment will be reversed.

{¶ 13} Although a trial court has broad discretion in imposing probation conditions, the court's discretion is not limitless. Specifically, the conditions "cannot be overly broad so as to unnecessarily impinge on the probationer's liberty." State v. Jones (1990), 49 Ohio St.3d 51, 52, 550 N.E.2d 469. In Jones, the Ohio Supreme Court established the following three-part test for evaluating probation conditions:

{¶ 14} "In determining whether a condition of probation is related to the `interests of doing justice, rehabilitating the offender, and insuring his good behavior,' courts should consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation." Id. at 53, 550 N.E.2d 469.

{¶ 15} The condition imposed in Jones was that the defendant "have no association or communication, direct or indirect, with anyone under the age of eighteen (18) years not a member of his immediate family." Id., 49 Ohio St.3d at 52, 550 N.E.2d 469. The underlying crime involved five counts of giving alcohol to boys ages 10, 13, and 15, and/or assisting them in running away. Id. Although the Ohio Supreme Court upheld this probation condition, it did so by "rationally interpreting" it. In this regard, the court stressed that "the words `have no association or communication, direct or indirect, with anyone under the age of eighteen (18) years not a member of his immediate family' should reasonably be interpreted as meaning an illicit or potentially unlawful association or communication." Id at 55, 550 N.E.2d 469. The court reasoned:

{¶ 16} "Literal enforcement of any condition of probation, including the one, could be found to be unreasonable under some suggested fact patterns. For example, it might be unreasonable to find a violation of the probation condition for the probationer to be in the presence of people under the age of eighteen years while he was attending church services or programs or a group therapy program, or in any normal work setting, among other situations. Courts imposing conditions on probation are not expected to define with specificity the probationer's behavior in all possible circumstances. Rather, the conditions must be clear enough to notify the probationer of the conduct expected of him, with the understanding that the court will act reasonably at a revocation hearing, aware of the practicalities and fundamental goals of probation." Id., 49 Ohio St.3d at 55, 550 N.E.2d 469.

{¶ 17} The probation condition in the present case prohibited "contact" with persons under age 18 without approval of the Probation Department. However, the contact that was the basis of the violation was marrying a 16-year-old girl and living with her after the marriage. Interpreted in this way, we think the probation condition unreasonably interfered with a lawful association. As has been said many times, marriage is "a fundamental right protected by the Due Process Clause: `The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.'" Pena v. Northeast Ohio Emergency Affiliates, Inc. (1995), 108 Ohio App.3d 96, 109, 670 N.E.2d 268, quoting Loving v. Virginia (1967), 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010.

{¶ 18} In State v. Jahnke, 148 Ohio App.3d 77, 2002-Ohio-371, 772 N.E.2d 156, the Tenth District Court of Appeals found that the trial court had impermissibly violated a defendant's liberty by conditioning his probation on no contact for five years with his fiancée. Id. at ¶ 13. The crime for which the defendant had been indicted was theft of a car (belonging to his fiancée's mother) and receiving stolen property. However, he pleaded guilty to the lesser included offense of unauthorized use of a motor vehicle, and the stolen property charge was dismissed. Id. at ¶ 2. In the Tenth District's opinion, the fiveyear no-contact order violated all three criteria established in Jones. Specifically, the order did not reasonably relate to rehabilitating the defendant, as the relationship was not the contributing factor in his commission of the offense. Additionally, the order bore no relationship to the crime he committed or to future criminal conduct. Id. at ¶ 13-14.

{¶ 19} Similarly, in State v. Harford (Mar. 6, 2001), Richland App. No. 00CA89, 2001 WL 227704, a wife was convicted of illegally conveying drugs of abuse into the detention facility where her husband was imprisoned. As a condition of probation, the trial court ordered that the wife not have any contact with her spouse. However, the Fifth District found that the trial court abused its discretion by imposing clearly overbroad conditions of probation.

{¶ 20} As we mentioned, the first criterion under Jones is whether the probation condition "is reasonably related to rehabilitating the offender." 49 Ohio St.3d at 53, 550 N.E.2d 469. In this...