[Cite as State v. Moore, 2017-Ohio-4358.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-17-07

        v.

ANGELA K. MOORE,                                          OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 16-CR-0077

                                      Judgment Affirmed

                             Date of Decision:   June 19, 2017




APPEARANCES:

        John M. Kahler, II for Appellant

        Stephanie Reed for Appellee
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PRESTON, P.J.

       {¶1} Defendant-appellant, Angela K. Moore (“Moore”), appeals the

February 2, 2017 judgment entry of sentence of the Seneca County Court of

Common Pleas. Moore challenges the constitutionality of R.C. 2907.03(A)(5),

Ohio’s incest statute, as it was applied to her. For the reasons that follow, we affirm.

       {¶2} On April 27, 2016, the Seneca County Grand Jury indicted Moore on

two counts of sexual battery in violation of R.C. 2907.03(A)(5), (B), third-degree

felonies, as a result of engaging in sexual conduct with her adult biological daughter,

A.S. (Doc. No. 1). On June 2, 2016, Moore appeared for arraignment and entered

pleas of not guilty. (Doc. No. 13).

       {¶3} On August 5, 2016, Moore filed a motion to dismiss the indictment

arguing that R.C. 2907.03(A)(5) is unconstitutional as applied to her. (Doc. No.

20). In particular, she argued that the State has no legitimate interest in regulating

the consensual sexual conduct between Moore and A.S. because her parental rights

were terminated when A.S. was three years old.            (Id.).   The State filed its

memorandum in opposition to Moore’s motion to dismiss the indictment on August

24, 2016. (Doc. No. 27). Moore filed a “stipulation of facts for purposes of hearing

on motion for an order declaring O.R.C. §2907.03(A)(5) unconstitutional and to

dismiss the indictment only.” (Doc. No. 33).        After a hearing on September 8,




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2016, the trial court on September 9, 2016 denied Moore’s motion to dismiss the

indictment. (Doc. Nos. 34, 35).

       {¶4} On November 28, 2016, Moore withdrew her pleas of not guilty and

entered a plea of no contest with consent to a finding of guilty to one count of the

indictment. (Doc. No. 51). In exchange for her change of plea, the State agreed to

dismiss the other count of the indictment. (Doc. Nos. 50, 51, 52). The trial court

accepted Moore’s plea of no contest, found her guilty, dismissed the other count of

the indictment, and ordered a presentence investigation. (Doc. Nos. 52, 60). The

trial court filed its judgment entry of conviction on November 29, 2016. (Doc. No.

52). The trial court held a sentencing and sex-offender registration hearing on

February 1, 2017. (Doc. Nos. 58, 59). The trial court sentenced Moore to 24 months

in prison. (Doc. No. 58). The trial court also classified Moore as a Tier III sex

offender. (Doc. No. 59). The trial court filed its judgment entries of sentence and

sex-offender classification on February 2, 2017. (Doc. Nos. 58, 59).

       {¶5} On February 28, 2017, Moore filed her notice of appeal. (Doc. No. 66).

She raises one assignment of error for our review.

                               Assignment of Error

       The Trial Court Erred When it Denied Appellant’s Motion to
       Declare O.R.C. §2907.03(A)(5) Unconstitutional.

       {¶6} In her assignment of error, Moore argues the trial court erred by denying

her motion to dismiss the indictment because R.C. 2907.03(A)(5) violates the Equal

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Protection and substantive Due Process Clauses of the United States and Ohio

Constitutions.

       {¶7} We review de novo a trial court’s decision to dismiss all or any part of

an indictment based on the constitutionality of the statute under which the defendant

is indicted. State v. Carnes, 1st Dist. Hamilton No. C-150752, 2016-Ohio-8019, ¶

7. We also review de novo the determination of a statute’s constitutionality. State

v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27, citing City of Akron

v. Callaway, 162 Ohio App.3d 781, 2005-Ohio-4095, ¶ 23 (9th Dist.) and Andreyko

v. City of Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, ¶ 11 (1st Dist.). “De

novo review is independent, without deference to the lower court’s decision.” Id.,

citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147

(1992).

       {¶8} R.C. 2907.03(A)(5) prohibits sexual battery and provides that “[n]o

person shall engage in sexual conduct with another, not the spouse of the offender

when * * * the offender is the other person’s natural or adoptive parent, or a

stepparent, or guardian, custodian or person in loco parentis of the other person.”

       {¶9} “‘It is difficult to prove that a statute is unconstitutional.’” State v.

Stoffer, 2d Dist. Montgomery No. 26268, 2015-Ohio-352, ¶ 8, quoting Arbino v.

Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, ¶ 25. “‘All statutes have

a strong presumption of constitutionality. * * * Before a court may declare


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unconstitutional an enactment of the legislative branch, “it must appear beyond a

reasonable doubt that the legislation and constitutional provisions are clearly

incompatible.”’” Id., quoting Arbino at ¶ 25, quoting State ex rel. Dickman v.

Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus.

       {¶10} “A party may challenge the constitutionality of a statute with either a

facial challenge or an as-applied challenge.” Simpkins v. Grace Brethren Church

of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118, ¶ 20. “A facial challenge

asserts that there is no conceivable set of circumstances in which the statute would

be valid.” Id. “An as-applied challenge, on the other hand, alleges that application

of the statute in a particular factual context is unconstitutional.” Id. “A holding that

a statute is unconstitutional as applied prevents future application of the statute in a

similar context, but it does not render the statute wholly inoperative.” Id. “A party

raising an as-applied constitutional challenge must prove by clear and convincing

evidence that the statute is unconstitutional when applied to an existing set of facts.”

Id. at ¶ 22. In this case, Moore is challenging the constitutionality of the sexual-

battery statute as it was applied to her. That is, she argues that R.C. 2907.03(A)(5)

is unconstitutional as applied to consensual sexual conduct between a parent whose

parental rights were previously terminated and an adult biological child.

       {¶11} We will first address Moore’s substantive-due-process argument.

Section 16, Article I of the Ohio Constitution provides, “All courts shall be open,


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and every person, for an injury done him in his land, goods, person, or reputation,

shall have remedy by due course of law, and shall have justice administered without

denial or delay.” “[L]egislative enactments may restrict individual rights only ‘by

due course of law,’ a guarantee equivalent to the Due Process Clause of the

Fourteenth Amendment to the United States Constitution.” Stetter v. R.J. Corman

Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, ¶ 41.

       {¶12} “There are two tests used to assess the constitutionality of a statute

under the Due Process Clause: strict scrutiny or rational-basis scrutiny.” State v.

Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, ¶ 18. “‘When reviewing a statute on

due-process grounds, we apply a rational-basis test unless the statute restricts the

exercise of fundamental rights.’” Stoffer, 2015-Ohio-352, at ¶ 9, quoting Arbino,

2007-Ohio-6948, at ¶ 49. Moore concedes that the statute does not impinge a

fundamental right. See Lowe at ¶ 24 (concluding “that a rational-basis test should

be used to analyze [Ohio’s incest] statute” because it does not impinge a

fundamental right). Under the rational-basis test, “a statute will be upheld if it is

rationally related to a legitimate government purpose and it is not unreasonable or

arbitrary.” Stetter at ¶ 71. See also Lowe at ¶ 18. “‘In conducting this review, we

must consider whether the General Assembly’s purposes in enacting the legislation

at issue provide adequate support to justify the statute’s effects.’” Stetter at ¶ 71,

quoting Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, ¶ 157.


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       {¶13} The Supreme Court of Ohio previously addressed the constitutionality

of Ohio’s incest statute. Lowe at ¶ 4. In that case, Supreme Court of Ohio analyzed

R.C. 2907.03(A)(5) under a substantive-due-process analysis and concluded that

Ohio’s incest statute is rationally related to the legitimate governmental interest of

protecting the family unit and family relationships. Id. at ¶ 25. Moore does not

dispute that protection of the family unit is a legitimate governmental interest.

Rather, Moore attempts to distinguish the facts of her case from Lowe by arguing

that there is no legitimate “family” interest to protect in this case because her

parental rights were terminated when the victim was three years old. We disagree.

Simply because Moore’s parental rights were terminated does not remove her from

the type of conduct that the General Assembly intended to prohibit through Ohio’s

incest statute.

       {¶14} This point is best illustrated by the Supreme Court’s discussion of the

General Assembly’s intent in codifying Ohio’s incest statute. In discussing the

relationship between Ohio’s incest statute and the State’s interest in protecting the

family unit, the Supreme Court of Ohio explained that because “[a] sexual

relationship between a parent and child * * * is especially destructive to the family

unit,” the General Assembly enacted R.C. 2907.03(A)(5) “to protect the family unit

by criminalizing incest in Ohio” since “Ohio has a tradition of acknowledging the

‘importance of maintaining the family unit.’” Id., quoting In re Cunningham, 59


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Ohio St.2d 100, 104 (1979). In advancing the purpose of protecting the family unit,

the General Assembly intended to criminalize sexual conduct that, in particular,

carries a significant risk of harm because the offender holds a special relationship

to the victim. See State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, ¶ 32, citing

Ohio Legislative Service Commission, Summary of Am.Sub.H.B. 511 13 (1972).

See also Lowe at ¶ 10-13. Indeed, regardless of whether a natural parent’s parental

rights are terminated, a natural parent will always stand in a special position to a

biological-child victim—the type of relationship which would allow an offender to

take unconscionable advantage of a victim. See Mole at ¶ 34.

       {¶15} Further, by the plain language of the statute, the General Assembly

prohibited sexual conduct with a victim when the offender is the natural parent of

the victim. Unlike the Supreme Court’s statement in dicta in Lowe that “[t]he statute

would no longer apply” to Lowe if he “divorced his wife and no longer was a

stepparent to his wife’s daughter, the stepparent-stepchild relationship would be

dissolved,” the termination of parental rights does not dissolve a person’s

designation as a natural parent. See Lowe at ¶ 26. Rather, similar to the Supreme

Court’s determination that “parents do not cease being parents—whether natural

parents, stepparents, or adoptive parents—when their minor child reaches the age

of majority” when concluding that Ohio’s incest statute applies to sexual conduct




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involving adult children, a natural parent does not cease being a parent simply

because his or her parental rights were terminated. See id. at ¶ 25.

       {¶16} Accordingly, we conclude that R.C. 2907.05(A)(5) applies to sexual

conduct between a natural parent whose parental rights were previously terminated

and their child. There can be no doubt that the application of Ohio’s incest statute

to Moore’s conduct “bears a real and substantial relation to the public morals.” State

v. Lowe, 5th Dist. Stark No. 2004CA00292, 2005-Ohio-4274, ¶ 16. Moreover, for

the same reasons, the proscription of sexual conduct between a natural parent,

whose parental rights were previously terminated, and their child is neither arbitrary

nor unreasonable. See id. at ¶ 16.

       {¶17} Therefore, the application of R.C. 2907.03(A)(5) to Moore bears a

rational relationship to the legitimate state interest in protecting the family, because

it reasonably advances its goal of protection of the family unit from the destructive

influence of sexual relationships between parents and their children, and it is neither

arbitrary nor unreasonable. See Lowe, 2007-Ohio-606, at ¶ 26. See also State v.

Shipley, 9th Dist. Lorain No. 03CA008275, 2004-Ohio-434, ¶ 81. As such, we

conclude that Moore failed to demonstrate by clear and convincing evidence that

the application of R.C. 2907.03(A)(5) to her amounts to a violation of due process.

       {¶18} Moore also challenges the constitutionality of Ohio’s incest statute as

applied to her under the Equal Protection Clause of the Fourteenth Amendment to


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the United States Constitution and Ohio’s Equal Protection Clause under Article I,

Section 2 of the Ohio Constitution. 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.” The Supreme Court

of Ohio has “interpreted Article I, Section 2 of the Ohio Constitution to be the

equivalent of the Equal Protection Clause in the United States Constitution.”

Simpkins, 2016-Ohio-8118, at ¶ 46.1

        {¶19} Because this case does not involve a fundamental right or suspect

classification, the parties do not dispute that a rational-basis review applies.

Accordingly, we are required to uphold the statute under equal-protection review if

the statute is rationally related to a legitimate governmental purpose. Mole, 2016-

Ohio-5124, at ¶ 26. “Under rational-basis review, we grant ‘substantial deference’

to the General Assembly’s predictive judgment.” Simpkins at ¶ 47, quoting Arbino,

2007-Ohio-6948, at ¶ 58.




1
  Although the Supreme Court of Ohio has found “greater protection under the Ohio Equal Protection Clause
than under the federal Equal Protection Clause,” we need not address that argument because Moore does not
argue that Ohio’s Equal Protection Clause provides greater protections than the federal Equal Protection
Clause. See Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-118, ¶
46, citing State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, ¶ 23.

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       {¶20} Moore argues that R.C. 2907.03(A)(5) violates her equal-protection

rights because her parental rights were previously terminated. Stated another way,

Moore contends that her consensual conduct is no different than the sexual conduct

of “most other ordinary consenting adults.” (Appellant’s Brief at 6). As such,

Moore argues that, because her parental rights were terminated and she was not the

“parent” of A.S., she is being treated differently from the “ordinary” adult engaging

in consensual sexual conduct.

       {¶21} For reasons similar to those that led us to conclude above that R.C.

2907.03(A)(5) does not violate Moore’s due-process rights, we also conclude that

Ohio’s incest statute does not violate Moore’s equal-protection rights. Moore is not

being singled out.    As we discussed above, despite her parental rights being

previously terminated, Moore remains a natural parent, which, based on the plain

language of the statute, is the class of persons encompassed by the statute’s

prohibition. Moreover, because there is an inherent coercive influence that a natural

parent has over a child, even if that natural parent’s parental rights were previously

terminated, the General Assembly intended to proscribe that type of predatory

scenario by enacting Ohio’s incest statute. As such, Moore’s conduct is within the

class of conduct intended to be prevented by Ohio’s incest statute. For these

reasons, application of R.C. 2907.03(A)(5) to Moore is rationally related to the

legitimate governmental interest in protecting the integrity of the family unit. Thus,


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the application of R.C. 2907.03(A)(5) to Moore does not violate her right to equal

protection under the United States or Ohio Constitutions.

       {¶22} The trial court did not err by denying Moore’s motion to dismiss the

indictment. Moore’s assignment of error is overruled.

       {¶23} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/jlr




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