[Cite as State v. Mole, 2013-Ohio-3131.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No.98900




                                      STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.



                                  MATTHEW T. MOLE
                                                       DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            REVERSED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-557737

        BEFORE:          Jones, J., Stewart, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: July 18, 2013
ATTORNEYS FOR APPELLANT

Richard J. Perez
Rosplock & Perez
Interstate Square Bldg. I
4230 State Route 306, Suite 240
Willoughby, Ohio 44094

John A. Fatica
The Standard Building
1370 Ontario Street
Suite 1810
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Daniel T. Van
        Jesse W. Canonico
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant, Matthew Mole, appeals his conviction for sexual

battery.   We reverse.

                                   I. Procedural History

       {¶2} In 2012, Mole was charged with one count of unlawful sexual conduct with a

minor in violation of R.C. 2907.04(A) and one count of sexual battery in violation of R.C.

2907.03(A)(13).    He filed a motion to dismiss the sexual battery charge, which the trial

court denied.

       {¶3} The charges stemmed from a single sexual encounter that 36-year-old Mole,

who was a police officer for the city of Waite Hill, had with 14-year-old J.S.    Mole met

J.S. in an online chat room; J.S. told Mole he was in high school but 18 years of age.

J.S. did not know Mole was a police officer.

       {¶4} The matter proceeded to a jury trial on the unlawful sexual conduct charge

and a bench trial on the sexual battery charge.   The jury was unable to return a verdict on

the unlawful sexual conduct charge so the court declared a mistrial.        The trial court

subsequently found Mole guilty of sexual battery, sentenced him to two years in prison,

and classified him as a Tier III sex offender.    The state elected not to retry Mole on the

unlawful sexual conduct charge and dismissed the charge without prejudice.

       {¶5} It is from the conviction for sexual battery that Mole appeals, raising the

following assignments of error:
       [I]. The trial court erred to the prejudice of the defendant-appellant when
       it denied the defendant-appellant’s motion to dismiss where R.C.
       2907.03(A)(13) is unconstitutional on its face in violation of the Fourteenth
       Amendment to the United States Constitution and Article I, Sections 2 and
       16 of the Ohio Constitution.

       [II].     Whether the trial court erred to the prejudice of the
       defendant-appellant when it overruled his motion to dismiss the defective
       indictment in violation of his right to indictment and due process under the
       Fifth and Fourteenth Amendments to the United States Constitution and
       Article I, Sections 10 and 16 of the Ohio Constitution.

       [III].   The trial court independently erred by automatically classifying

       appellant as a Tier III sex offender without a hearing, pursuant to the

       mandate of Ohio’s Adam Walsh Act.

                       II. Constitutionality of R.C. 2907.03(A)(13)

       {¶6} In the first assignment of error, Mole argues that the trial court erred in

denying his motion to dismiss because R.C. 2907.03(A)(13) violates the Equal Protection

Clauses of the United States and Ohio constitutions.

       {¶7} R.C. 2907.03(A)(13) prohibits sexual battery and states that “[n]o person

shall engage in sexual conduct with another, not the spouse of the offender when * * * 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.”

       {¶8} The Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution provides, “no State shall * * * deny to any person within its

jurisdiction the equal protection of the laws.” Ohio’s Equal Protection Clause, Section

2, Article I of the Ohio Constitution, states, “all political power is inherent in the people.
Government is instituted for their equal protection and benefit * * *.”

       {¶9} Both equal-protection provisions are functionally equivalent and require the

same analysis. Eppley v. Tri-Valley Local School Dist. Bd. of Edn., 122 Ohio St.3d 56,

2009-Ohio-1970, 908 N.E.2d 401, ¶ 11.

       {¶10} If a statute does not implicate a fundamental right or a suspect classification,

courts employ a “rational basis” standard of review, and a statute will not violate

equal-protection principles if it is rationally related to a legitimate government interest.

Id. at ¶ 15, citing Menefee v. Queen City Metro, 49 Ohio St.3d 27, 29, 550 N.E.2d 181

(1990). The parties do not dispute that this case does not involve a fundamental right or

suspect classification; thus, a rational-basis review applies.

       {¶11} “The rational-basis test involves a two-step analysis.          We must first

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., 73 Ohio St. 3d 260, 267, 1995-Ohio-136,

652 N.E.2d 952.

       {¶12} Pursuant to a rational-basis review, the state “‘has no obligation to produce

evidence to sustain the rationality of a statutory classification.”’ Pickaway Cty. Skilled

Gaming, L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 20,

quoting Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882

N.E.2d 400, at ¶ 91.      The party challenging the constitutionality of a law ‘“bears the
burden to negate every conceivable basis that might support the legislation.”’   Id.

       {¶13} We are reminded that Ohio courts grant substantial deference to the

legislature when conducting an equal-protection rational-basis review.             State v.

Williams, 88 Ohio St.3d 513, 531, 2000-Ohio-428, 728 N.E.2d 342. Classifications will

be invalidated only if they “‘bear no relation to the state’s goals and no ground can be

conceived to justify them.”’ State v. Peoples, 102 Ohio St.3d 460, 2004-Ohio-3923, 812

N.E.2d 963, ¶ 7, quoting State v. Thompkins, 75 Ohio St.3d 558, 561, 1996-Ohio-264,

664 N.E.2d 926.

       {¶14} In this case, the challenge to the statute’s constitutionality is a facial

challenge; Mole is challenging the statute as a whole, not as the statute was personally

applied to him. A facial challenge to the constitutionality of a statute is decided by

considering the statute without regard to extrinsic facts.   President & Bd. of Trustees of

Ohio Univ. v. Smith, 132 Ohio App.3d 211, 224, 724 N.E.2d 1155 (4th Dist.1999);

Cleveland Gear Co. v. Limbach, 35 Ohio St.3d 229, 231, 520 N.E.2d 188 (1988).

                                 A.   Valid State Interest

       {¶15} Therefore, in considering the first prong of the rational-basis test, we must

determine whether R.C. 2907.03(A)(13) rationally advances a legitimate state interest.

       {¶16} The Ohio Supreme Court has noted that “police officers are held to a higher

standard of conduct than the general public.” Warrensville Hts. v. Jennings, 58 Ohio

St.3d 206, 207, 569 N.E.2d 489 (1991), citing Jones v. Franklin Cty. Sheriff, 52 Ohio

St.3d 40, 43, 555 N.E.2d 940 (1990). “Law enforcement officials carry upon their
shoulders the cloak of authority of the state. For them to command the respect of the

public, it is necessary then for these officers even when off duty to comport themselves in

a manner that brings credit, not disrespect, upon their department.”     (Emphasis added.)

Jennings at id., citing Jones at id. “[I]t is incumbent upon a police officer to keep his or

her activities above suspicion both on and off duty.” Jennings at id., citing Jones at 44.

       {¶17} Because a police officer may be held to a higher standard of conduct than an

ordinary citizen, even when the police officer is off duty, prohibiting sexual relationships

between police officers and minors may therefore rationally advance a legitimate state

interest, we think, especially if the police officer uses his or her occupation to influence

the minor into the relationship.

       {¶18} But R.C. 2907.03(A)(13) broadly classifies the offender as a “peace

officer.”   Under Ohio law, a “peace officer” includes traditional police officer

categories: a sheriff, deputy sheriff, marshal, deputy marshal, municipal police officer,

metropolitan housing authority police officer, regional transit authority police officer,

state university law enforcement officer, enforcement agent of the department of public

safety, veterans’ home police officer, port authority police officer, township police

constable or officer, and airport police officer.   R.C. 2935.01(B).    The definition also

includes: a department of taxation investigator, a natural resources law enforcement staff

officer, a forest officer, a preserve officer, a wildlife officer, a park officer, or a state

watercraft officer; the house of representatives sergeant-at-arms if the house of

representatives sergeant-at- arms has arrest authority, assistant house of representatives
sergeant-at-arms, the senate sergeant-at-arms, and the assistant senate sergeant-at-arms.

Id.

       {¶19} Thus, while the state may have a valid interest in creating a law prohibiting

sexual conduct between traditionally-defined police officers and minors because police

officers are held to a higher standard than ordinary citizens, we question whether the

same should be said for each classification of peace officer.

                               B. Rational Method or Means

       {¶20} Our greater concern is with the second prong of the test: whether the state’s

method or means of achieving its interest is rational.

       {¶21} Unlike the other subsections of the sexual battery statute, R.C.

2907.03(A)(13) is unique in that it: (1) has no mens rea requirement and (2) contains no

relationship or occupational requirement between the offender and victim.

       {¶22} The sexual battery statute, R.C. 2907.03, provides:

       (A) No person shall engage in sexual conduct with another, not the spouse
       of the offender, when any of the following apply:

       (1) The offender knowingly coerces the other person to submit by any
       means that would prevent resistance by a person of ordinary resolution.

       (2) The offender knows that the other person’s ability to appraise the nature
       of or control the other person’s own conduct is substantially impaired.

       (3) The offender knows that the other person submits because the other
       person is unaware that the act is being committed.

       (4) The offender knows that the other person submits because the other
       person mistakenly identifies the offender as the other person’s spouse.

       (5) 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.

(6) The other person is in custody of law or a patient in a hospital or other
institution, and the offender has supervisory or disciplinary authority over
the other person.

(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.

(8) The other person is a minor, the offender is a teacher, administrator,
coach, or other person in authority employed by or serving in an institution
of higher education, and the other person is enrolled in or attends that
institution.

(9) The other person is a minor, and the offender is the other person’s
athletic or other type of coach, is the other person’s instructor, is the leader
of a scouting troop of which the other person is a member, or is a person
with temporary or occasional disciplinary control over the other person.

(10) The offender is a mental health professional, the other person is a
mental health client or patient of the offender, and the offender induces the
other person to submit by falsely representing to the other person that the
sexual conduct is necessary for mental health treatment purposes.

(11) The other person is confined in a detention facility, and the offender is
an employee of that detention facility.

(12) The other person is a minor, the offender is a cleric, and the other
person is a member of, or attends, the church or congregation served by the
cleric.

(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.

{¶23} R.C. 2907.03(A)(1)-(4) require that the offender acted “knowingly,” that the
offender had a certain state of mind when he or she committed the crime.1

         {¶24} R.C. 2907.03(A)(5)-(12) govern offenses where the offender and victim

have some sort of relationship; each subsection requires the offender have custody,

authority, control, and/or some sort of other authoritative relationship with the victim.

For example, R.C. 2907.03(A)(6) prohibits sexual conduct between an employee and

patient of a hospital; R.C. 2907.03(A)(7) prohibits sexual conduct between a teacher and

a student at the same school; and R.C. 2907.03(A)(10) prohibits sexual conduct between a

mental health professional and the professional’s client.

         {¶25} R.C. 2907.03(A)(8), (9), and (12), concern offenses where the victim is a

minor.       In each of these subsections, there is a relationship requirement or occupational

connection. R.C. 2907.03(A)(8) prohibits employees of colleges and universities from

having sexual relationships with minors attending their institutions; it does not however

prohibit them from having sexual relationships with minors attending colleges or

universities where they are not employed or serving.                     Likewise, while R.C.

2907.03(A)(9) and (12) prohibit coaches, scouting leaders, instructors, and clerics from

having sexual relationships with members of their teams, troops, and congregations, the

statute does not prohibit such relationships with other minors not under the influence or

supervision of the offender.



         “A person acts knowingly, regardless of his purpose, when he is aware that his conduct will
         1


probably cause a certain result or will probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances probably exist.” R.C. 2901.22(B).
       {¶26} R.C. 2907.03(A)(13) is different. This subsection prohibits a peace officer

from having sexual conduct with a minor more than two years younger than the officer,

without consideration given to whether (1) the peace officer used his or her position to

facilitate the offense or the victim was in the custody, control, or under the supervision or

influence of the peace officer; (2) the victim knew that the offender was a peace officer;

or (3) the peace officer knew or should have known the victim was a minor.        Moreover,

not only does this statute punish relationships such as the one in this case where the age

difference was great, but it also punishes relationships between a 17-year-old minor and a

19-year-old peace officer, so long as there is more than a two year age difference.

       {¶27} The state argues that the legislature’s intent was to protect minors from

exposure to certain types of sexual conduct and in order to achieve that interest, it was

necessary to hold peace officers to a higher standard by expanding the statute to

encompass situations where there is “even the possibility of influence over a child with no

requirement that the relationship arise while the peace officer was performing official

duties.”

       {¶28} It appears from a review of the legislative history that the amendment to the

sexual battery statute prohibiting sexual conduct between peace officers and minors, as

originally introduced in the Ohio House of Representatives, did not include a relationship

requirement or element. See State Senator Keith Faber’s speech to the Ohio Senate,

http://www.ohiochannel.org/medialibrary/media.aspx?fileId=117520.           The bill was

subsequently amended in the Ohio Senate to include a relationship clause to make it
“consistent with the other sections of the sexual battery [statute] * * * based on the

position of trust between the victim and the offender.” Id.

      {¶29} But the relationship language was subsequently removed by amendment in

the Ohio Senate because the bill’s sponsor was concerned about the state’s ability to

prosecute offenders “under that language.” Id.

      {¶30} But R.C. 2907.03(A)(10) requires the state to show that the offender

induced the victim “to submit by falsely representing to the other person that the sexual

conduct is necessary for mental health treatment purposes.”      Clearly, subsection (A)(10)

requires more than a mere professional-patient relationship.

      {¶31} The legislature’s intent in originally enacting R.C. 2907.03 was to deter

sexual conduct ‘“in a variety of situations where the offender takes unconscionable

advantage of the victim.”’ State v. Funk, 10th Dist. No. 05AP-230, 2006-Ohio-2068 at ¶

97, quoting 1974 Committee Comment to H.B. 511. The legislature has subsequently

amended the sexual battery statute to add categories where an offender has authority or

control over the intended victim. The problem with R.C. 2907.03(A)(13) is that it stands

alone among the subsections in that it requires no intent on behalf of the offender and no

relationship or occupational connection between the offender and the victim.

      {¶32} This appears to be a case of first impression in Ohio.      Moreover, we were

unable to find a similar law in any other state in the nation.    In looking at other equal

protection challenges to Ohio’s sexual battery statute, the Ninth District Court of Appeals

upheld such a challenge to R.C. 2907.03(A)(7) in State v. Shipley, 9th Dist. No.
03CA008275, 2004-Ohio-434.

       {¶33} In Shipley, the court found the statute was “rationally related to its intended

purpose of preventing teachers from taking unconscionable advantage of students by

using their undue influence over the students in order to pursue sexual relationships.”

Id. at ¶ 81.   The court noted the connection between the offense and the occupation of

the offender, i.e., that it is unlawful when teachers use their undue influence over students

to pursue sexual relationships, and held that the state had a legitimate interest in

protecting minors from their teachers who might take advantage of them. Id.

       {¶34} Likewise, in this case, the state might have a legitimate interest in protecting

minors from police officers who use their profession to pursue inappropriate sexual

relationships. But there exists no occupational connection or relationship requirement in

R.C. 2907.03(A)(13).     We agree with Mole that one’s occupation as a peace officer

alone, without more, does not provide a person with an “unconscionable advantage” over

a minor.

       {¶35} Consequently, because the state’s method or means of achieving its interest

is not rational, R.C. 2907.03(A)(13) fails the second prong of the rational-basis test.

       {¶36} In sum, while the state may have a legitimate interest in protecting minors

from those who might use their undue influence over them in order to pursue sexual

relationships, Mole has been able to show that R.C. 2907.03(A)(13) bears no rational

relationship to a legitimate government interest.

       {¶37} Therefore, we find that R.C. 2907.03(A)(13) violates the Equal Protection
Clauses of the Ohio and United States constitutions. The trial court erred in denying

Mole’s motion to dismiss.

       {¶38} The first assignment of error is sustained.

                        III. Remaining Assignments of Error Moot

       {¶39} In the second assignment of error, Mole argues that the trial court should

have granted his motion to dismiss due to a defective indictment.              In the third

assignment of error, Mole challenges his classification as a Tier III sex offender.   Due to

our disposition of the first assignment of error, the second and third assignments of error

are moot.   App.R. 12(A)(1)(C).

       {¶40} Accordingly, judgment reversed.

       {¶41} The case is remanded with instructions to grant Mole’s motion to dismiss

with respect to his claim declaring R.C. 2907.03(A)(13) violative of the Equal Protection

Clauses of the United States and Ohio constitutions. The court is also ordered to vacate

his conviction and sex offender classification.

       It is ordered that appellant recover from appellee his 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 common

pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

MELODY J. STEWART, A.J., CONCURS IN
JUDGMENT ONLY WITH SEPARATE OPINION;
FRANK D. CELEBREZZE, JR., J., DISSENTS
WITH SEPARATE OPINION


MELODY J. STEWART, A.J., CONCURRING IN JUDGMENT ONLY:

      {¶42} I concur with the disposition of the appeal, but do so for reasons different

than those offered by the majority opinion.

      {¶43} Although the statutory definition of a “peace officer” is seemingly broad, the

legislature was acting within its prerogative when so defining that term. The legislature

could rationally find that any person imbued with police authority, regardless of that

person’s specific duties, fell within a class of persons who could abuse a position,

particularly in relation to minors. In any event, the majority’s concerns regarding the

overbreadth of the peace officer classification are not present in this case because Mole

was, in fact, a police officer. So concerns about whether the definition of a peace officer

is overbroad because it includes more esoteric positions like “forest officer” and

“department of taxation investigator” is immaterial.

      {¶44} I do agree with the majority that Mole was prosecuted under R.C.
2907.03(A)(13) for conduct that the statute irrationally criminalizes. To be sure, the

right of adults to engage in private sexual conduct in the exercise of their liberty does not

apply to minors or “persons who might be injured or coerced or who are situated in

relationships where consent might not easily be refused.” Lawrence v. Texas, 539 U.S.

558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). However, the statute arbitrarily

prohibits any form of sexual conduct between a peace officer and a minor without regard

to whether the offender’s position as a peace officer was a motivating factor for either the

offender or the victim.

       {¶45} The fundamental premise behind R.C. 2907.03(A)(13) and, indeed, the other

divisions of R.C. 2907.03, is to prevent those in positions of authority from using their

authority to coerce, compel, or force capitulation to that authority. Thus, the statute

singles out teachers, coaches, mental health professionals, prison staff, clergy, scout

leaders, and, of course, police officers. It requires no citation to authority to recognize

that the common feature among these classes of offenders is that they all have the

potential to abuse their authority. In the case of police officers, the potential to force a

victim’s capitulation to sexual advances in exchange for favorable police treatment is

manifest.

       {¶46} But the goal of protecting minors from capitulating to sexual coercion

brought about by abuses of police authority cannot be a factor when the minor is unaware

that the other person is a police officer. Crucial to this case is the uncontested fact that

Mole’s position as a police officer had nothing to do with the sexual activity he engaged
in with the victim: Mole did not tell the victim he was a police officer and the victim

testified that he had no idea that Mole was a police officer. The evil to be prevented by

R.C. 2907.03(A)(13), the misuse of police authority to compel or coerce sexual conduct,

was simply not present in this case.

       {¶47} Apart from the statute criminalizing conduct that it was not designed to

prevent, the age distinction employed by the statute is arbitrary. The age requirement

that the offender be “more than two years older than the other person” seemingly

contradicts the stated intent of the statute. While it seems unlikely that a person under

the age of 20 could be named a peace officer, it is possible. So the statute rather

contradictorily does not criminalize sexual conduct between a peace officer and a minor

who is two years younger or less than the peace officer, even if the peace officer actually

did intend to coerce the victim’s capitulation through the authority of the office.

       {¶48} Mole’s sexual conduct with a minor was reckless. But he was not found

guilty of that offense under R.C. 2907.04. Instead, he was convicted under a statute that

in some circumstances criminalizes conduct that it did not intend to prevent, and yet in

other circumstances allows conduct that it intended to criminalize. Because Mole’s

conviction was not obtained to punish any ill sought to be prevented by the statute, it is

unconstitutional.


FRANK D. CELEBREZZE, JR., J., DISSENTING:

       {¶49} Respectfully, I dissent from the majority’s holding that R.C. 2907.03(A)(13)

is unconstitutional on its face.
       {¶50} As the majority recognizes, a sexual relationship between a minor and an

adult is unprotected conduct in this instance, and a peace officer is not a suspect class.

Therefore, rational basis review is to be applied.    Here, that means the statute will be

upheld as constitutional if it bears some rational relationship to a legitimate governmental

interest. State v. Williams, 88 Ohio St.3d 513, 530, 2000-Ohio-428, 728 N.E.2d 342.

       Under the Equal Protection Clause, a legislative distinction need only be
       created in such a manner as to bear a rational relationship to a legitimate
       state interest. These distinctions are invalidated only where “they are
       based solely on reasons totally unrelated to the pursuit of the State’s goals
       and only if no grounds can be conceived to justify them.”

Id., quoting Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 73 L.Ed.2d 508

(1982).

       {¶51} Review of the statute requires us to determine whether the statute is

rationally related to a legitimate government interest.      That interest, based on the

location of R.C. 2907.03(A)(13), is ostensibly to protect children from the influences of

those holding a position of trust or power that could be used to coerce a sexual

relationship. R.C. 2907.03 prohibits sexual conduct between minors and a number of

people who may exert undue influence over them. From parents, to teachers, to religious

leaders — all are prohibited from using their position of power to develop a sexual

relationship with their charges. The part relating to peace officers differs from the other

subsections, which cover those situations where some type of relationship exists, be it

parental or pedagogical. This difference is related to a second purpose embodied in R.C.

2907.03(A)(13) alone.
        {¶52} The provision relating to peace officers was added to R.C. 2907.03 in 2009

as a response to a sexual relationship between a minor and a police officer that caused a

loss of respect for the officer and his department among the local community.          While

other portions of R.C. 2907.03 require a direct relationship between the adult and the

child, R.C. 2907.03(A)(13) does not because peace officers are held to a higher standard

of behavior and have an obligation to protect the citizens of this state.      Therefore, the

statute embodies two legitimate legislative goals: the protection of children and

prohibiting behavior by peace officers that would bring disrepute to their ranks. This

also demonstrates why R.C. 2907.03(A)(13) is a strict liability offense with no mens rea

element required in the indictment, contrary to appellant’s arguments in his second

assignment of error.

        {¶53} This is a key distinguishing factor for peace officers from the other

categories of those affected by R.C. 2907.03. Others only hold a position of trust or

power over those directly in their charge.        This is not true of peace officers, who

maintain a sphere of influence over their communities broadly and who must instill in the

public the belief that these officers are deserving of the power and authority granted to

them.

        {¶54} The majority takes issue with the use of “peace officer” in the statute

rather than a more narrow class of individuals that would be more closely related to the

state’s goal.   However, each of the officials listed in the definition of “peace officer” are

granted a great deal of power and authority over the public in their respective bailiwicks.
“For them to command that respect of the public, it is necessary then for these officers

even when off duty to comport themselves in a manner that brings credit, not disrespect,

upon their departments.”     Jones v. Franklin Cty. Sheriff, 52 Ohio St.3d 40, 43, 555

N.E.2d 940 (1990).

       {¶55} The statute is not an arbitrary or discriminatory embodiment of these dual

goals. The majority takes issue with the fact that R.C. 2907.03(A)(13) is different from

the other subsections because it requires no intent on behalf of the offender and no

relationship or occupational connection.    However, that is because of the dual purposes

it embodies. To further those goals, the state legislature has singled them out to prohibit

sexual interaction with minors. That decision is not arbitrary or discriminatory.            It

furthers the goal of fostering a trusted and respected policing authority.

       {¶56} Appellant cannot carry the burden of demonstrating that this statute is

unconstitutional.   The state’s interest in maintaining a respected policing arm, coupled

with its interest in protecting children, is achieved by the statute.        A facial challenge

must fail.   Therefore, I find the statute constitutional and would uphold appellant’s

conviction for sexual battery and his classification as a Tier III sex offender as required

by R.C. 2950.01(G)(1)(a).
