[Cite as State v. Butler , 2011-Ohio-1652.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                              LAWRENCE COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 10CA36
                               :
     vs.                       : Released: March 30, 2011
                               :
THOMAS B. BUTLER,              : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Michael A. Davenport, Lambert Law Offices, Ironton, Ohio, for Appellant.

J.B. Collier, Jr., Lawrence County Prosecutor, and W. Mack Anderson,
Lawrence County Assistant Prosecutor, Ironton, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} This is an appeal from a Lawrence County Court of Common

Pleas judgment of conviction and sentence issued after Appellant, Thomas

Butler, entered a plea of no contest to one count of sexual battery, a third

degree felony in violation of R.C. 2907.03(A)(5). On appeal, Appellant

contends the trial court erred in failing to dismiss all three counts of the

indictment where his interactions with the alleged victim did not rise to the

level of an in loco parentis relationship. In light of our determination that

the facts alleged in the indictment were legally sufficient to allege an in loco
Lawrence App. No. 10CA36                                                         2


parentis theory, Appellant’s sole assignment of error is overruled.

Accordingly, the trial court’s denial of Appellant’s pre-trial motion to

dismiss was not in error and the decision of the trial court is affirmed.

                                    FACTS

      {¶2} On February 2, 2010, Appellant was indicted on three counts of

sexual battery, all third degree felonies in violation of R.C. 2907.03(A)(5).

Each of the counts alleged as follows:

“THOMAS B. BUTLER, on or about June 29, 2009, at Lawrence County,
Ohio, did engage in sexual conduct with [M.W.], not the spouse of the said
Thomas B. Butler, and the said Thomas B. Butler being a person in loco
parentis to [M.W.] by virtue of the fact that the said [M.W.] was a minor
staying in the home of said Defendant who had been given authority over the
said minor by her grandmother custodian, the said Defendant providing
support, care and supervision of said minor, in violation of Section 2907.03
of the Revised Code.”

      {¶3} Appellant pled not guilty to the charges and on February 10,

2010, he filed a pre-trial motion to dismiss all three counts of the indictment.

In his motion, Appellant alleged that there had been a prior indictment

stemming from the same fact pattern. Appellant alleged that the current

indictment was an attempt to cure an insufficient allegation of an in loco

parentis relationship contained in the first indictment. However, Appellant

argued that the language in the current indictment, presently at issue herein,

was also insufficient. In support of his motion to dismiss, Appellant argued

that he had not assumed a dominant parental role over the victim and the
Lawrence App. No. 10CA36                                                                                    3


victim had not relied upon him for support. He further argued that the

victim was simply a guest in his home.

         {¶4} The trial court denied Appellant’s motion to dismiss on March

12, 2010. In reaching its decision, the trial court cited the fact that the minor

had come from out of town for a visit and was left in Appellant’s home,

where two events of sexual conduct occurred. The trial court further stated

as follows:

“The indictment alleges those facts, together with the statement, ‘That the
said [M.W.] was a minor, staying in the home of said Defendant, who had
been given authority over the said minor by her grandmother custodian, the
said Defendant providing support, care and supervision of the said minor’.
[sic] * * * This court finds that the State’s indictment makes a sufficient
allegation of facts and elements against the Defendant, including the
dominate [sic] parental role, from the allegation that authority over this
minor child had been given to the Defendant by her grandmother custodian
while she stayed at the Defendant’s home; and further, that the issue of
support is met by the allegation that the Defendant was providing support,
care and supervision of the said minor while upon extended stay in the
Defendant’s home.”

         {¶5} Subsequently, Appellant entered a plea of no contest to count

one of the indictment and the other charges were dismissed.1 As a result of

Appellant’s plea, on September 20, 2010, the trial court issued a judgment

entry finding Appellant guilty of one count of sexual battery, and sentencing



1
  According to the trial court’s judgment entry, Appellant pled no constest to count one of the indictment in
Case No. 10CR38 in exchange for the dismissal of counts two and three in that case, as well as the
dismissal of counts one, two and three in the previous case, Case No. 09CR180. Counts four, five and six
in Case No. 09CR180 had already been dismissed at the time of Appellant’s plea in Case No. 10CR38.
Lawrence App. No. 10CA36                                                        4


him to a five-year term of imprisonment. Appellant now brings his timely

appeal, setting forth a single assignment of error for our review.

                         ASSIGNMENT OF ERROR

“I.   THE COURT BELOW ERRED IN DENYING APPELLANT’S
      MOTION TO DISMISS ALL THREE COUNTS OF THE
      INDICTMENT AS THE APPELLANT’S INTERACTIONS WITH
      THE ALLEGED VICTIM DID NOT RISE TO THE LEVEL OF AN
      IN LOCO PARENTIS RELATIONSHIP.”

                             LEGAL ANALYSIS

      {¶6} In his sole assignment of error, Appellant contends that the trial

court erred in denying his motion to dismiss all three counts of the

indictment, claiming that his interactions with the alleged victim did not rise

to the level of an in loco parentis relationship. Specifically, Appellant

contends that he cannot be found to have been in loco parentis over the

alleged victim in light of the Supreme Court of Ohio’s holding in State v.

Noggle, 67 Ohio St.3d 31, 1993-Ohio-189, 615 N.E.2d 1040. The State

agrees that Noggle governs the issue presented in this appeal, but argues that

the indictment, on its face, complied with Noggle, as it adequately set forth

the requirements for an indictment alleging an in loco parentis status. For

the following reasons, we agree with the State.

      {¶7} Appellant was indicted for sexual battery in violation of R.C.

2907.03, which provides that:
Lawrence App. No. 10CA36                                                        5


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

***

(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.” (Emphasis added).

“ ‘[A] motion to dismiss charges in an indictment tests the [legal]

sufficiency of the indictment, without regard to the quantity or quality of

evidence that may be produced by either the state or the defendant.’ ” State

v. Evans, Scioto App. No. 08CA3268, 2010-Ohio-2554 at ¶ 18; quoting,

State v. Barcus (1999), 133 Ohio App.3d 409, 414, 728 N.E.2d 420; quoting

State v. Patterson (1989), 63 Ohio App.3d 91, 95, 577 N.E.2d 1165; see,

also, State v. Certain, 180 Ohio App.3d 457, 2009-Ohio-148, 905 N.E.2d

1259 at ¶ 4. As such, “when a defendant moves to dismiss, the proper

determination is whether the allegations contained in the indictment

constitute offenses under Ohio criminal law.” Id. The sufficiency of an

indictment is a question of law that we review de novo. Evans at ¶ 18; citing

State v. Smith, Pickaway App. No. 06CA7, 2007-Ohio-502, at ¶ 26.

      {¶8} “The primary purpose of an indictment is to inform a defendant

of the offense with which he is charged to enable his preparation for trial.”

Evans at ¶ 19; citing Smith at ¶ 23; citing State v. Lindway (1936), 131 Ohio

St. 166, 182, 2 N.E.2d 490 (citation omitted). An indictment must contain a
Lawrence App. No. 10CA36                                                         6


statement that the defendant has committed a public offense that is specified

in the indictment. Crim.R. 7(B). This rule further provides that:

“The statement may be made in ordinary and concise language without
technical averments or allegations not essential to be proved. The statement
may be in the words of the applicable section of the statute, provided the
words of that statute charge an offense, or in words sufficient to give the
defendant notice of all the elements of the offense with which the defendant
is charged.” Crim.R. 7(B).

      {¶9} “While the rule permits an indictment to be in the words of the

statute, the [Supreme Court of Ohio] has recognized that ‘the courts might

still require more to put the defendant on notice of the offense charged.’ ”

Evans at ¶ 20; citing Smith at ¶ 24; quoting State v. Ross (1967), 12 Ohio

St.2d 37, 39, 231 N.E.2d 299. Further, as we noted in Evans:

 “ ‘The general rule that an indictment or information for a statutory offense
is sufficient if the offense is charged in the words of the statute, either
literally or substantially, or in equivalent words, does not apply when the
statutory words do not in themselves fully, directly, and expressly, without
uncertainty or ambiguity, set forth all the elements and ingredients necessary
to constitute the offense intended to be punished.’ ” Evans at ¶ 20; citing
Ross at 39-40; quoting 4 Wharton's Criminal Law and Procedure 626; See,
also, Smith at ¶ 24.

      {¶10} In the case at bar, Appellant asserts that the indictment fails to

comply with the special in loco parentis pleading requirements that the

Supreme Court of Ohio set forth in State v. Noggle, supra. In Noggle, the

Court held: “Indictments based upon an alleged offender's status as a person

in loco parentis should at least state the very basic facts upon which that
Lawrence App. No. 10CA36                                                                              7


alleged status is based.” Id. at paragraph two of the syllabus. In that case, the

State charged the defendant, a high school teacher and coach, with sexual

battery in violation of R.C. 2907.03(A)(5), based upon alleged sexual

conduct with a student.

        {¶11} Although the indictment returned against Noggle alleged that

an in loco parentis relationship existed between Noggle and the student, it

did not specify the nature or underlying basis of that relationship. An

amended bill of particulars specified in pertinent part as follows: “the said

Dale G. Noggle being such a person in loco parentis by virtue of his position

as a teacher and school coach * * *.” Noggle at 32.

        {¶12} Based upon its holding that a teacher and coach is not, as a

matter of law, a person in loco parentis for purposes of the sexual battery

statute, the trial court granted Noggle’s motion to dismiss the indictment.

Both the appellate court and the Supreme Court of Ohio affirmed the

dismissal. In affirming the dismissal, the Noggle court stated:

“The phrase ‘person in loco parentis' in R.C. 2907.03(A)(5) applies to a
person who has assumed the dominant parental role and is relied upon by the
child for support. This statutory provision was not designed for teachers,
coaches, scout leaders, or any other persons who might temporarily have
some disciplinary control over a child. Simply put, the statute applies to the
people the child goes home to.”2 Noggle at 33.


2
  We note that R.C. 2907.03 has been amended since the Noggle decision to extend its application to
teacher and student scenarios, as well as scout leaders.
Lawrence App. No. 10CA36                                                         8


      {¶13} Although the Court determined that the indictment was

insufficient as a matter of law based upon the defendant's status as teacher

and coach, the Court nonetheless determined that the bill of particulars set

forth the basic facts upon which the in loco parentis theory rested. In

reaching this determination, the Court explained:

“Finally, ordinarily, an indictment against a defendant is sufficient if it states
the charge against the defendant in the words of the statute. Crim.R. 7(B).
However, in regard to this particular statute, the words used are not
sufficient. The phrase ‘person in loco parentis' is a general phrase
demanding specificity. Indictments based upon the alleged offender's status
as a person in loco parentis should at least state the very basic facts upon
which that status is based.
       In this case the amended bill of particulars served the purpose of
stating the basic facts supporting the allegation that Noggle was a person in
loco parentis. The fact that Noggle was a teacher and coach was insufficient
to support an indictment based upon R.C. 2907 .03(A)(5).” Id. at 34.

      {¶14} In the case at bar, as set forth above, the indictment alleged that

Appellant was a person in loco parentis to the minor victim by virtue of the

fact that the minor was staying in his home, that Appellant had been given

authority over the minor victim by her grandmother custodian, and that

Appellant was providing support, care and supervision of the minor victim.

We conclude that the allegation of these facts fulfills the Noggle requirement

to set forth the “very basic facts” upon which the State's in loco parentis

theory rested.
Lawrence App. No. 10CA36                                                         9


      {¶15} Appellant alleges facts in his brief related to his relationship

with the victim, which go beyond the facts that were before the court at the

time that it ruled on Appellant’s motion to dismiss. Thus, the arguments

advanced by Appellant are more properly suited to a challenge to the

sufficiency of the evidence, rather than to the sufficiency of the allegations

of the indictment. However, the question before the trial court, and before

us on appeal, is whether the basic facts, as alleged in the indictment, are

legally sufficient, as a matter of law, to support an in loco parentis theory.

      {¶16} In this case the basic facts that support the State’s in loco

parentis theory are that the minor victim was staying in Appellant’s home,

that he had been given authority over the minor victim by her grandmother

custodian, and he was providing support, care and supervision. These basic

facts support an inference that Appellant assumed a dominant role over the

child and that the child relied upon the defendant for support, sufficient to

overcome a motion to dismiss the in loco parentis counts of the indictment,

and in accordance with State v. Noggle, supra. Thus, we believe that the trial

court correctly denied Appellant's motion to dismiss the in loco parentis

counts of the indictment.

      {¶17} Further, we do not find Appellant's reliance upon State v.

Burgett, Marion App. No. 9-09-14, 2009-Ohio-5278, to be persuasive. In
Lawrence App. No. 10CA36                                                       10


that case, the court considered whether the evidence presented at trial was

sufficient to establish an in loco parentis relationship, not whether the

indictment sufficiently alleged the very basic facts upon which the

relationship existed. “The sufficiency of an indictment and the sufficiency

of evidence presented at trial to sustain an in loco parentis conviction are

two different questions and must be evaluated under two different legal

standards.” Evans at ¶ 26. In the case at bar, if the State’s allegations in the

indictment are true, then those facts are sufficient to support the indictment's

allegation of an in loco parentis theory. Thus, unlike Noggle, the allegations

are legally sufficient to allege an in loco parentis theory.

      {¶18} Based upon the foregoing reasons, we overrule Appellant's sole

assignment of error. Accordingly, we affirm the decision of the trial court.

                                               JUDGMENT AFFIRMED.
Lawrence App. No. 10CA36                                                       11


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant 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 Lawrence 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 BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
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 expiration of sixty days, the stay will terminate as of the date
of such dismissal.

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

Harsha, P.J. and Kline, J.: Concur in Judgment and Opinion.

                                        For the Court,

                                        BY: _________________________
                                            Matthew W. McFarland, Judge

                          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.
