[Cite as State v. Fisher, 2017-Ohio-7260.]
                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                       ROSS COUNTY


STATE OF OHIO,                                    :

       Plaintiff-Appellee,                        :   Case No. 16CA3553

       vs.                                        :

SAMANTHA M. FISHER,                               :   DECISION AND JUDGMENT ENTRY


       Defendant-Appellant.                       :

_________________________________________________________________

                                             APPEARANCES:

Mark J. Miller, Columbus, Ohio, for appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County
Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.


CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 8-14-17
ABELE, J.

          {¶ 1} This is an appeal from a Ross County Common Pleas Court judgment filed by

Samantha Fisher, defendant below and appellant herein. Appellant assigns the following errors for

review:


               FIRST ASSIGNMENT OF ERROR:

               “THE TRIAL COURT ERRED IN NOT OVERRULING APPELLANT’S
               TIER III SEX OFFENDER CLASSIFICATION BECAUSE THE
               MANDATORY SEX OFFENDER CLASSIFICATION IMPOSED
               UNDER SENATE BILL 10 CONSTITUTES CRUEL AND UNUSUAL
               PUNISHMENT AND VIOLATES THE EIGHTH AND FOURTEENTH
ROSS, 16CA3553                                                                                  2

                 AMENDMENTS OF THE UNITED STATES CONSTITUTION AND
                 ARTICLE I, SECTION 9 OF THE OHIO CONSTITUTION.”


                 SECOND ASSIGNMENT OF ERROR:

                 “THE TIER III SEX-OFFENDER REQUIREMENTS IMPOSED ON
                 APPELLANT ARE UNCONSTITUTIONAL BECAUSE SENATE BILL
                 10 VIOLATES THE SEPARATION OF POWERS DOCTRINE.”

                 THIRD ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
                 APPELLANT WHEN IT FAILED TO OVERRULE APPELLANT’S
                 TIER III SEX OFFENDER CLASSIFICATION BECAUSE A
                 SUFFICIENT NEXUS HAS NOT BEEN ESTABLISHED BETWEEN
                 THE AUTOMATIC TIER III CLASSIFICATION OF THOSE IN
                 VIOLATION OF R.C. 2907.03(A)(7), WHEN APPLIED TO
                 INDIVIDUALS LIKE APPELLANT, AND THE GOVERNMENT’S
                 INTEREST IN PREVENTING TEACHERS FROM TAKING
                 UNCONSCIONABLE ADVANTAGE OF STUDENTS.”

        {¶ 2} On November 6, 2015, the Ross County Grand Jury returned an indictment that charged

appellant with two counts of sexual battery in violation of R.C. 2907.03(7), both felonies of the third

degree, after she was charged with engaging in sexual conduct with a 16-year-old student aide while

she was a teacher. Appellant pled not guilty to both counts.

        {¶ 3} On April 5, 2016, appellant withdrew her guilty plea and pled guilty to both counts.

On May 3, 2016, current counsel entered his appearance as counsel of record for appellant, and on

May 6, 2016, appellant filed a motion to withdraw her plea. Appellant argued that her prior attorney

informed her that sexual battery carried a 10-year registration period, not lifetime registration, and

did not inform her of community notification. Appellant also objected to the Tier III Sex Offender

Classification because, appellant argued, the classification violates due process, separation of

powers, and constitutes cruel and unusual punishment.
ROSS, 16CA3553                                                                                       3

        {¶ 4} On May 23, 2016, the trial court held a hearing for three purposes: (1) to consider the

motion to withdraw her plea, (2) to conduct appellant’s sexual-offender classification hearing, and

(3) to determine appellant’s criminal disposition. The court first denied the motion for leave to

withdraw her plea, noting that the trial court had properly notified appellant of the lifetime

requirements at the change of plea hearing. The trial court then moved on to the classification

hearing. The court noted that appellant violated R.C. 2907.03, a Tier III sex offense. The court

instructed appellant on registration requirements and, after appellant’s counsel argued that the Tier

III classification as applied to appellant is unconstitutional, the court indicated that the classification

is set by statute and the court has no discretion in the matter.

        {¶ 5} Turning to the disposition, the victim urged that appellant not be subject to the

lifetime registration and notification requirements. Once again, the court indicated that it had no

discretion regarding the mandatory classification. The judge went on to state “I can’t help but look

at your life though and think it’s been exemplary up to this point. You did a lot of things that would

make me proud if I were your parent of what you’ve done in your life and I think that is remarkable

for you.” However, the court went on to say, “Unfortunately on the other side of the coin is the fact

that you took advantage of a child that was in a horrible situation. His life circumstances made him,

perhaps, more vulnerable than most children would be in his position. There’s also the fact that we

have to send a message to other teachers and other people in positions of authority that you can’t

abuse and take advantage of your position of authority and do such things.”

        {¶ 6} With that, the court sentenced appellant to serve 60 days in jail, but did allow work

release, followed by 90 days of house arrest with work privileges, and required her to perform 200

hours of community service to be completed within 12 months. Further, the judge ordered appellant
ROSS, 16CA3553                                                                                   4

to complete a sex offender class, to be evaluated for substance abuse, to obtain and keep

employment, to have no contact with the victim, and have no unsupervised conduct with children

under 18 throughout the pendency of the case until completion of community control. This appeal

followed.

        {¶ 7} On May 25, 2016, appellant filed a motion to stay the registration sex offender

classification, registration, and notification requirements pending an appeal. The trial court denied

the request. On June 27, 2016, appellant filed a motion to stay registration requirements pending

the disposition of her appeal with this court. On July 19, 2016, this court denied the motion.



                                    I. STANDARD OF REVIEW

        {¶ 8} “A statute may be challenged as unconstitutional on the basis that it is invalid on its

face or as applied to a particular set of facts.” State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606,

861 N.E.2d 512, ¶ 17. Here, appellant challenges the Tier III classification as unconstitutional as

applied to her, i.e., a twenty-two-year-old adult teacher indicted for offenses committed against a

sixteen-year-old student aide. Thus, we use a de novo standard of review to assess errors based

upon violations of constitutional law.       State v. Sidam, 4th Dist. Adams No. 15CA1014,

2016-Ohio-7906, ¶ 19, citing State v. Burgette, 4th Dist. Athens No. 13CA50, 2014-Ohio-3483, ¶

10; see also State v. Coburn, 4th Dist. Ross No. 08CA3062, 2009-Ohio-632, ¶ 6.

        {¶ 9} The statutes enacted by the General Assembly are entitled to a “strong presumption of

constitutionality.” State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7.

Thus, “if at all possible, statutes must be construed in conformity with the Ohio and the United

States Constitutions.” State v. Collier, 62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991). The
ROSS, 16CA3553                                                                                     5

Supreme Court of Ohio has held that a court is only permitted to declare a statute unconstitutional if

it “ ‘appear[s] beyond a reasonable doubt that the legislation and constitutional provisions are clearly

incompatible.’ ” State v. Cook, 83 Ohio St.3d 404, 409, 700 N.E.2d 570 (1998), quoting State ex

rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955).

        {¶ 10} In the case sub judice, appellant pled guilty to two counts of sexual battery in

violation of R.C. 2907.03, which provides that: “(A) No person shall engage in sexual conduct with

another, not the spouse of the offender, when any of the following apply: (7) The offender is a

teacher, administrator, coach, or other person in authority employed by or serving in a school for

which the state board of education prescribes minimum standards pursuant to division (D) of section

3301.07 of the Revised Code, the other person is enrolled in or attends that school, and the offender

is not enrolled in and does not attend that school.”

        {¶ 11} Senate Bill 10 created a three-tier sex-offender-classification system.              R.C.

2950.01(G)(1) lists the offenses that automatically mandate that an offender be classified as a Tier III

sex offender. R.C. 2950.01(G)(1)(a) provides that a sex offender who pleads guilty to a violation of

R.C. 2907.03 must be classified as a Tier III sex offender. Thus, the trial court classified appellant

as a Tier III sex offender as a result of her conviction for two counts of sexual battery in violation of

R.C. 2907.03(A)(7). Tier III sex offenders must verify their current residence address or current

school, institution of higher education, or place of employment address every 90 days after the

offender’s initial registration date. R.C. 2950.06(B)(3).

                                II. FIRST ASSIGNMENT OF ERROR

        {¶ 12} In her first assignment of error, appellant asserts that the trial court erred by not

overruling her Tier III sex offender classification because the Senate Bill 10 mandatory sex offender
ROSS, 16CA3553                                                                                    6

classification constitutes cruel and unusual punishment and violates the Eighth and Fourteenth

Amendments of the United States Constitution and Article I, Section 9 of the Ohio Constitution.

        {¶ 13} While most states addressing Eighth Amendment challenges to mandatory

sex-offender classifications for adults have dismissed those challenges based on their findings that

the registration schemes are remedial rather than punitive, the Supreme Court of Ohio has held that

the enhanced sex-offender reporting and notification requirements contained in R.C. Chapter 2950

are punitive. See State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16.

“Ohio’s current sex-offender-registration statutes create a three-tier classification system. Unlike

the earlier ‘labeling’ classification system under Megan’s Law, 146 Ohio Laws, Part II, 2560, in

which a judge could consider the characteristics of an offender before sentencing, ‘tier’ classification

is based solely upon the offense for which a person is convicted and the judge has no discretion to

modify the classification.” State v. Blankenship, 145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d

516, ¶ 11, citing Williams at ¶ 20.

                                            A. Federal Law

        {¶ 14} The Eighth Amendment to the United States Constitution states, “Excessive bail shall

not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Appellant argues that her automatic classification amounts to cruel and unusual punishment because,

she contends, the punishment is disproportionate to the crime.          The central focus is that the

“punishment for crime should be graduated and proportioned to [the] offense.” Weems v. United

States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910).

        {¶ 15} When considering Eighth Amendment challenges, and whether to adopt a categorical

rule, the United States Supreme Court has taken the following approach: “The Court first considers
ROSS, 16CA3553                                                                                    7

‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to

determine whether there is a national consensus against the sentencing practice at issue. * * * Next,

guided by ‘the standards elaborated by controlling precedents and by the Court’s own understanding

and interpretation of the Eighth Amendment’s text, history, meaning, and purpose, * * * the Court

must determine in the exercise of its own independent judgment whether the punishment in question

violates the Constitution.” Graham v. Florida, 560 U.S. 48, 61, 130 S.Ct. 2011, 176 L.Ed.2d 825

(2010).

                                          National Consensus

          {¶ 16} With regard to the national consensus prong of the analysis, appellant contends that

few people would find it reasonable to require an individual to register as a sex offender when the

offender does not share any of the characteristics of a sex offender and when an extremely low risk

exists for reoffending, citing State v. Blankenship, 145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d

516, ¶ 77 (Pfeifer, J., dissenting). Appellant argues that she engaged in consensual sex with the

student aide, and that the trial judge seemed reluctant to classify her as a Tier III sex offender.

However, as the state notes, the pre-sentence investigation (PSI) indicated that while appellant’s

ORAS score was a 7, which is a low risk of reoffending, the PSI also indicated that appellant “has

some criminal attitudes, sometimes feels a lack of control over the events in her life, and she agrees

with ‘do unto others before they do unto you.’”

          {¶ 17} Generally, a national consensus favors similar sex offender registration requirements.

See, e.g., Blankenship at ¶ 36 (Indeed, such sanctions are now the norm, citing People v. Temelkoski,

307 Mich.App. 241, 262, 859 N.@.2d 743 (2014) (“all 50 states and the federal government have

enacted some form of sex offender registration and notification provisions.”)); Cook, 83 Ohio St.3d
ROSS, 16CA3553                                                                                   8

at 406 (all 50 states have a sex offender registration law and Ohio has had one in place since 1963).

Further, although appellant does not have a prior criminal history, she was a teacher, a position that

the General Assembly, in enacting the subsection regarding teachers, coaches and administrators, has

deemed to have special responsibilities due to the authority that teachers exert over their students.

Thus, we do not find a national consensus would object to appellant’s classification as a Tier III sex

offender with its attendant registration and notification requirements.

        {¶ 18} We now turn to the second step of our analysis.

                           Does the Punishment Violate the Constitution?

        {¶ 19} In determining whether the punishment violates the Constitution, the United States

Supreme Court has set forth a three-step analysis: (1) the culpability of the offender in light of the

crime and characteristics, (2) the severity of the punishment, and (3) the penological justification.

Graham, 560 U.S. at 67-68.

                                      Culpability of the Offender

        {¶ 20} The first consideration in the independent review is assessing the offender's

culpability. Blankenship, 145 Ohio St.3d 221 at ¶ 23. As a matter of law, appellant’s conviction

for sexual battery makes her a sex offender. R.C. 2950.01(B)(1). Appellant argues that requiring

her to register as a sex offender based solely on the offense committed, and without considering her

character or the nature of the offense, results in excessive punishment. Appellant cites In re CP.,

131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 42, to support her argument that the nature

of her offense is mild. However, In re C.P. held that “[t]o the extent that it imposes automatic,

lifelong registration and notification requirements on juvenile sex offenders tried within the juvenile

system, R.C. 2152.86 violates the constitutional prohibition against cruel and unusual punishment
ROSS, 16CA3553                                                                                     9

contained in the Eighth Amendment to the United States Constitution and the Ohio Constitution,

Article I, Section 9, and the Due Process Clause of the Fourteenth Amendment to the United States

Constitution and the Ohio Constitution, Article I, Section 16.” Id. at syllabus. We point out that In

re C.P. involved juvenile offenders, whereas in the case at bar appellant is an adult offender.

Further, the Supreme Court of Ohio denied an Eighth Amendment challenge in Blankenship even

though psychologists determined that Blankenship had a low risk of reoffending. See Blankenship,

145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d 516, at ¶ 3. Moreover, even though appellant

argues that she is not a “sex offender,” she has been classified as one as a matter of law, and the trial

court ordered her to attend sex offender treatment.

        {¶ 21} Appellant also argues that the victim in this case consented to the sexual conduct with

appellant, that no evidence indicates that the victim suffered any irreparable harm, and that appellant

is unlikely to commit another criminal offense. In Blankenship, the court noted that the defendant

was six years older than the victim and, therefore, deemed more culpable and more deserving of

punishment. Blankenship at ¶ 24. Here, appellant is also six years older than the victim. While

appellant contends that the conduct was consensual, the fact remains that appellant, a teacher, took

advantage of an underage student. Appellant also indicated in the PSI report that she knew that the

victim’s father had recently died, and she took his number to alert him if anyone was looking for him

when he was in areas of the school for which he had no authorization. Appellant was the first to

text him, and he came to her home twice where the sexual conduct occurred. Appellant is indeed

culpable for the criminal acts that she committed.

                                      Severity of the Punishment

        {¶ 22} The second consideration is the severity of the punishment. Appellant, an adult
ROSS, 16CA3553                                                                                  10

teacher, engaged in a sexual relationship with a 16-year-old student aide at her school, fully aware of

his age. She could have received a sentence of one to five years in prison for her third-degree

felony. Instead, the trial court placed appellant on community control for three years, sentenced her

to serve 60 days in jail and 90 days of house arrest, ordered her to attend sex offender treatment,

ordered an evaluation for substance abuse, and required her to perform 200 hours of community

service and have no unsupervised contact with children under the age of 18.

        {¶ 23} In Blankenship, the Tier II offender was 21 years of age and the victim was 15 at the

time the relationship began. The court concluded “[o]ur research reveals no case in which similar

registration and verification requirements have been held to be cruel and unusual punishment.”

Blankenship at ¶ 27. Appellant also argues that she is a low risk offender. The Blankenship court

rejected a similar argument when the defendant presented evidence from a psychologist that he

presented a “low risk” of re-offending. The Blankenship court held that while the requirements to

register every 180 days for 25 years are burdensome, it did not rise to a constitutional level. Id.

While appellant’s registration requirements are more onerous than a Tier III offender, we find no

authority to support the view that the requirements rise to the level of cruel and unusual punishment.

                                      Penological Justifications

        {¶ 24} The final consideration in an Eighth Amendment analysis is to assess the penological

justifications for the sentencing practice. Graham, 560 U.S. at 67. As the Blankenship court noted,

“[t]he stated purpose of S.B. 10 and its registration and community-notification requirements is ‘to

protect the safety and general welfare of the people of this state.’ R.C. 2950.02(B).” Blankenship at

¶ 28. The court went on to acknowledge that sex-offender registration schemes have been criticized

on the ground that they do not actually serve the intended purpose of community protection. Id. at
ROSS, 16CA3553                                                                                   11

¶ 29. However, the court concluded that the penological grounds for imposing such requirements

are “still accepted in many quarters and are justified in part based upon the perceived high rate of

recidivism and resistance to treatment among sex offenders.” Id. at ¶ 30. Accordingly, we cannot

conclude that the registration and notification requirements for Tier III offenders are so unjustified as

to constitute cruel and unusual punishment under the Eighth Amendment to the United States

Constitution.

                                             B. Ohio Law

        {¶ 25} The Ohio Constitution, Article I, Section 9, contains its own prohibition against cruel

and unusual punishment. While it contains the same language as the United States Constitution, it

provides unique protection for Ohioans. See Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d

163 (1993), paragraph one of the syllabus. Cases involving cruel and unusual punishment are rare,

“limited to those involving sanctions which under the circumstances would be considered shocking

to any reasonable person.” McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203 N.E.2d 334 (1964). “A

punishment does not violate the constitutional prohibition against cruel and unusual punishments, if

it be not so greatly disproportionate to the offense as to shock the sense of justice of the community.”

 State v. Chaffin, 30 Ohio St.2d 13, 282 N.E.2d 46, paragraph three of the syllabus (1972).

        {¶ 26} Ohio courts have held that the reporting requirements for Tier I and Tier II sex

offenders do not constitute cruel and unusual punishment. See, e.g., State v. Conley, 9th Dist.

Summit No. 27869, 2016-Ohio-5310; State v. Bradley, 1st Dist. Hamilton No. C-100833,

2011-Ohio-6266. This court sees no reason not to apply this rationale to Tier III offenders. With

R.C. 2907.03(A)(7), the General Assembly codified an intention to protect school children from

adults in positions of authority. In this case, appellant, a teacher, used her position of authority to
ROSS, 16CA3553                                                                                 12

develop a sexual relationship with a 16-year-old child, a student aide in her classroom.            We

conclude that based on existing authority and the reasoning behind Senate Bill 10's protections, to

require appellant to register every 90 days for life does not shock the sense of justice in the

community, and thus does not violate the Ohio Constitution’s prohibition against cruel and unusual

punishment. Appellant’s first assignment of error is overruled.

                                   III. Second Assignment of Error

        {¶ 27} In her second assignment of error, appellant asserts that the Tier III sex-offender

requirements are unconstitutional because Senate Bill 10 violates the separation of powers doctrine.

Appellant argues that under Senate Bill 10, the judiciary’s function is simply ministerial when

issuing a judgment to validate what the legislative branch has already finalized.

        {¶ 28} Although not explicitly stated in Ohio’s Constitution, “[t]he separation-of-powers

doctrine implicitly arises from our tripartite democratic form of government and recognizes that the

executive, legislative, and judicial branches of our government have their own unique powers and

duties that are separate and apart from the others.” State v. Thompson, 92 Ohio St.3d 584, 586, 752

N.E.2d 276 (2001), citing City of Zanesville v. Zanesville Tel. & Tel. Co., 63 Ohio St. 442, 59 N.E.

109 (1900), paragraph one of the syllabus. “It has long been recognized in this state that the General

Assembly has the plenary power to prescribe crimes and affix penalties.” State v. Morris, 55 Ohio

St.2d 101, 112, 378 N.E.2d 708 (1978).

        {¶ 29} The Third District considered the question of whether S.B. 10 is unconstitutional, as

applied to those convicted of sexual battery in violation of R.C. 2907.03(A)(2), for violating the

separation of powers doctrine in State v. Ritchey, 3d Dist. Allen No. 1-15-80, 2016-Ohio-2878. The

court pointed to Thompson, State v. Bodkye, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753,
ROSS, 16CA3553                                                                                 13

and State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. The Third District

noted that before the Supreme Court’s decision in Williams, Ohio’s sex offender registration

requirements were considered remedial in nature. Therefore, Megan’s Law did not violate the

separation of powers doctrine because it did not remove the fact-finding authority from the judiciary.

 Thompson at 588.

        {¶ 30} Now, however, the classification discretion has been removed from the judiciary and

vested in the General Assembly.      The Supreme Court also later declared the Act punitive in

Williams. The Ritchey court concluded that requiring offenders convicted of sexual battery in

violation of R.C. 2907.03(A)(2) to be classified as Tier III sex offenders “is no different than a

mandatory prison sentence, mandatory fine, or any other mandatory punishments that the General

Assembly deems necessary. Mandatory sex offender registration and classification does not remove

the fact-finding power of the court regarding whether sexual battery was committed. That power

remains with the trial court. Rather, the Act provides for an additional punishment for those

convicted of sex offenses in Ohio, which remains within the General Assembly’s plenary power.

Accordingly, the Act, as applied to those convicted of sexual battery in violation of R.C.

2907.03(A)(2), does not violate the separation of powers doctrine as it does not usurp the judiciary’s

role in administering justice.” Ritchey at ¶ 28-29. We agree. Although appellant’s convictions

involve a different subsection of the sexual battery statute, this case involves the same crime and

same Tier III classification.

        {¶ 31} Moreover, this court has held that a Tier III sex offender classification “is nothing

more than a collateral consequence arising from *** criminal conduct, and because [the defendant]

has no reasonable expectation that [the defendant’s] ‘criminal conduct would not be subject to future
ROSS, 16CA3553                                                                                   14

versions of R.C. Chapter 2950,’ it cannot be said that SB 10 abrogates final judicial determinations.”

 State v. Coburn, 4th Dist. Ross No. 08CA3062, 2009-Ohio-632, ¶ 18. Appellant’s second

assignment of error is overruled.

                               IV. THIRD ASSIGNMENT OF ERROR

        {¶ 32} In her third assignment of error, appellant asserts that the trial court erred when it

failed to overrule appellant’s Tier III sex offender classification because a sufficient nexus had not

been established between the automatic Tier III classification of those in violation of R.C.

2907.03(A))(7), when applied to individuals like appellant, and the government’s interest in

preventing teachers from taking unconscionable advantage of students.

        {¶ 33} The state first points out that this issue was not raised or addressed at the trial court

level. “The failure to raise at the trial court level the issue of constitutionality of a statute or its

application, which is apparent at the time of trial, constitutes a waiver of such issue and a deviation

from this state’s orderly procedure, and therefore need not be heard for the first time on appeal.”

State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. However, reviewing courts do

have discretion to consider a forfeited constitutional challenge to a statute. State v. Quarterman,

140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. “Even when waiver is clear, the court

reserves the right to consider constitutional challenges to the application of statutes in specific cases

of plain error or where the rights and interests involved may warrant it.” In re M.D., 38 Ohio St.3d

149, 527 N.E.2d 286 (1988), syllabus.

        {¶ 34} Turning to the potential merits of appellant’s argument, the Fourteenth Amendment to

the United States Constitution provides that “no State shall * * * deny to any person within its

jurisdiction the equal protection of the laws.” Appellant does not claim that the classification
ROSS, 16CA3553                                                                                   15

involves a fundamental right or a suspect class; thus, the standard of review is the “rational basis”

test, which requires that the statute be upheld if it is rationally related to a legitimate governmental

purpose. See State v. Peoples, 102 Ohio St.3d 460, 2004-Ohio-3923, 812 N.E.2d 963. “The

appropriate standard of review is whether the difference in treatment between [the affected class and

those outside the class] rationally furthers a legitimate state interest.       In general, the Equal

Protection Clause is satisfied so long as there is a plausible policy reason for the classification.”

Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992).

        {¶ 35} Appellant raises an as-applied constitutional challenge to the application of R.C.

2907.03(A)(7).    A successful as-applied challenge would exempt appellant from a statute’s

application, but the statute would remain otherwise enforceable. See Yajnik v. Akron Dept. of

Health, Hous. Div., 101 Ohio St.3d 106, 109, 2004-Ohio-357, 802 N.E.2d 632. Appellant argues

that the sweep of the statute should not encompass consensual sexual activity and those offenders

who are determined to pose little to no threat of re-offending. Appellant argues that “[t]here is no

evidence in this case that Ms. Fisher engaged in any violence or coercion against her student aid

(sic.). R.C. 2907.03(A)(7) is, she argues, therefore unconstitutional under the facts of this case

because it is not rationally related to its intended purpose of preventing teachers from taking

unconscionable advantage of students by using their undue influence over their students in order to

pursue sexual relationships.” We disagree.

        {¶ 36} The rational-basis test involves a two-step analysis. “We must identify a valid state

interest. Second, we must determine whether the method or means by which the state has chosen to

advance that interest is rational.”       McCrone v. Bank One Corp., 107 Ohio St.3d 272,

2005-Ohio-6505, 839 N.E.2d 1, ¶ 9, citing Buchman v. Wayne Trace Local School Dist. Bd. of Edn.,
ROSS, 16CA3553                                                                                  16

73 Ohio St.3d 260, 267, 652 N.E.2d 952 (1995); Pickaway Cty. Skilled Gaming v. Cordray, 127

Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 19.

                                            State Interest

        {¶ 37} With regard to the intent prong of the analysis, we highlight the Supreme Court’s

recent analysis of a different subsection of R.C. 2907.03, (A)(13), involving peace officers. State v.

Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, _ N.E.3d _. R.C. 2907.03(A)(13) provides: “No

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

following apply: (13) The other person is a minor, the offender is a peace officer, and the offender is

more than two years older than the other person.”

        {¶ 38} The Supreme Court noted that the General Assembly created the offense of sexual

battery, R.C. 2907.03, to prohibit “sexual conduct with a person other than the offender’s spouse in a

 variety of situations where the offender takes unconscionable advantage of the victim.’ Legislative

Service Commission 1973 Comment to R.C. 2907.03 as enacted by Am.Sub.H.B. No. 511.” Mole

at ¶ 34. Similarly, the court stated that “the purpose of R.C. 2907.03 is to protect particularly

vulnerable people, including minors and others who are legally unable to consent to sexual activity,

from the harms that flow from sexual conduct. But in doing so, the General Assembly focused its

criminalization of sexual conduct on those who use their professional status to take unconscionable

advantage of minors, * * *.” Id. at ¶ 43.

        {¶ 39} The court went on to find that the state does have a compelling interest to protect

minors from sexual coercion and an interest to prohibit peace officers from abusing their authority in

order to sexually exploit minors. However, the court struck down that subsection of the statute,

holding that it is not rationally related to a legitimate governmental purpose, and thus declared it to
ROSS, 16CA3553                                                                                    17

be unconstitutional on its face because the government intended to punish a class of professionals

without making a connection between the classification and the prohibited act.         Id. at ¶ 70. The

court focused on the fact that peace officers are liable under the statute even if they did not use their

status as peace officers to identify potential victims and abuse them.

        {¶ 40} Certain aspects of State v. Mole are relevant to this case. For example, the court

stated that “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.” Id. at ¶ 2. The court found that subdivision (A)(13) irrationally imposes the same

strict liability on peace officers even when there is no occupation-based relationship between the

officer and the victim.

        {¶ 41} However, rather than calling for the same result in this case, we believe that Mole in

fact supports our view. First, Mole involved an equal protection challenge both under the United

States Constitution and the Ohio Constitution, and the Court focused heavily on the fact that the

court has autonomy under the Ohio Constitution “to interpret our Constitution to afford greater rights

to our citizens when we believe that such an interpretation is both prudent and not inconsistent with

the intent of the framers.” Id. at ¶ 21. In the case sub judice, appellant challenges the statute under

the United States Constitution.       Further, Mole reaffirmed that “statutes are presumed to be

constitutional and * * * courts have a duty to liberally construe statutes in order to save them from

constitutional infirmities.” Id. at ¶ 27. Moreover, “[t]he party challenging the constitutionality of a

statute ‘bears the burden to negate every conceivable basis that might support the legislation.’” Id.

        {¶ 42} Most important, Mole reviewed the historical background of R.C. 2907.04 and

strict-liability sex crimes based on relationships. “When enacting the new R.C. Chapter 2907, the
ROSS, 16CA3553                                                                                    18

General Assembly intended that private sexual conduct between consenting adults ought not be

criminalized but that the law ought to proscribe sexual conduct that is assaultive, that involves the

young and immature, or that carries a significant risk of harm. The seriousness of harm or risk of

harm is based on one or more of four factors: ‘the type of sexual activity involved; the means used to

commit the offense; the age of the victim; and whether the offender stands in some special

relationship to the victim.’ ” Id. at ¶ 32, citing Ohio Legislative Service Commission, Summary of

Am.Sub.H.B. 511 13 (Dec. 1972) (Emphasis sic.) “Using the above four factors, the General

Assembly created a new offense of sexual battery, R.C. 2907.03, to prohibit ‘sexual conduct with a

person other than the offender’s spouse in a variety of situations where the offender takes

unconscionable advantage of the victim.’ ” Id. at ¶ 34, citing Legislative Service Commission 1973

comment to R.C. 2907.03 as enacted by Am.Sub.H.B. No. 511.

        {¶ 43} The court noted that the statute was amended in response to incidents involving

inappropriate sexual conduct committed by adults who had special authoritative relationships with

minors or other vulnerable populations, but who were not covered by subdivisions (1) through (6) of

the statute. Id. at ¶ 35. The court concluded that the foregoing history “demonstrates that the

purpose of R.C. 2907.03 is to protect particularly vulnerable people, including minors and others

who are legally unable to consent to sexual activity, from the harms that flow from sexual conduct.”

Id. at ¶ 43. Although appellant argues that the sexual conduct in this case was consensual, we

believe that the statute exists to protect the vulnerable, a legitimate state interest.

                             Rationally Related to Legitimate State Interest

        {¶ 44} The second prong of the Equal Protection analysis is whether the legislative

distinction bears a rational relationship to the legitimate state interest. The court held that the sexual
ROSS, 16CA3553                                                                                   19

conduct at issue in Mole is unrelated to Mole’s professional status, a fact that is distinguishable from

our analysis in the case sub judice, in which appellant’s status as a teacher is very much related to the

sexual conduct at issue.     The court concluded, “it is the access provided by the occupational

relationship, and not the occupation by itself, that creates the risk of harm”   Id. at ¶ 57.

        {¶ 45} While the court found that R.C. 2907.03(A)(13) violated Equal Protection on its face,

Mole only applies to the peace officer portion of the statute, and we see clear support in the opinion

to continue to uphold subsection (7) due to the occupational authoritative relationship of a teacher

and student.

        {¶ 46} Although the appellant describes the sexual conduct in the case at bar as consensual,

it does not erase the fact that appellant was employed as a teacher, an authority figure who the

General Assembly has deemed is, and should be, held to a higher standard due to the control teachers

exert in student’s lives. This is the sort of behavior the legislature intended to punish, if not thwart,

by specifying the teacher, coach, administrator portion of R.C. 2907.03 sexual battery.

        {¶ 47} Consequently, in this case we hold that R.C. 2907.03(A)(7) is rationally related to its

intended purpose to prevent teachers from taking unconscionable advantage of students by using

undue influence over the students to pursue sexual relationships.           Because appellant did not

demonstrate how the statute as applied violates the Equal Protection Clause, we find no error,

overrule appellant’s third assignment of error and affirm the trial court's judgment.

                                                              JUDGMENT AFFIRMED.
ROSS, 16CA3553                                                                                   20

                                        JUDGMENT ENTRY

        It is ordered that the judgment is affirmed and that appellee recover of appellant the costs
herein taxed.

        The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court to carry this judgment into execution.

        If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to
allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency
of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty-day period.

       The stay will also terminate if appellant fails to file a notice of appeal with the Supreme
Court of Ohio in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the
Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.

        McFarland, J. & Hoover, J.: Concur in Judgment & Opinion

                                                      For the Court




                                                      BY:
                                                      Peter B. Abele, Judge
ROSS, 16CA3553                                                                                21

                                     NOTICE TO COUNSEL

        Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time
period for further appeal commences from the date of filing with the clerk.
