[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Pendergrass, Slip Opinion No. 2020-Ohio-3335.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2020-OHIO-3335
         THE STATE OF OHIO, APPELLEE, v. PENDERGRASS, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
   may be cited as State v. Pendergrass, Slip Opinion No. 2020-Ohio-3335.]
Criminal law—Statutory interpretation—Rule of lenity—Unlawful sexual conduct
        with a minor—Sentencing enhancement in R.C. 2907.04(B)(4) for previous
        qualifying conviction requires that the defendant had the qualifying
        conviction when he committed the charged offense—Court of appeals’
        judgment reversed.
     (No. 2018-1814—Submitted January 29, 2020—Decided June 17, 2020.)
     APPEAL from the Court of Appeals for Montgomery County, No. 27814,
                                      2018-Ohio-3813.
                                    _________________
        DEWINE, J.
        {¶ 1} The statute that criminalizes unlawful sexual conduct with a minor,
R.C. 2907.04, says that an offender is subject to an enhanced penalty if he
                                 SUPREME COURT OF OHIO




“previously has been convicted of” certain listed sex crimes. R.C. 2907.04(B)(4).
The question we have to resolve is “previous to what?”
        {¶ 2} The state maintains that the enhancement applies if at the time of
indictment the offender has previously been convicted of a qualifying sex crime.
Gerald Pendergrass, the appellant in this case, says no, the enhancement only
applies if at the time of the offense the offender has previously been convicted of a
qualifying sex crime. Looking to the text of the statute, and mindful of the rule of
lenity, we conclude that Pendergrass has the better of the argument.                      As a
consequence, we reverse the judgment of the court of appeals below and reinstate
the judgment of the trial court.
                               Facts and procedural history
        {¶ 3} In September 2016, Pendergrass was convicted of one count of
unlawful sexual conduct with a minor, in violation of R.C. 2907.04.1 Then, in
September 2017, Pendergrass was again indicted for unlawful sexual conduct with
a minor. The 2017 indictment alleged that the criminal behavior occurred sometime
between May 2013 and May 2015—that is, before the September 2016 conviction.
This later indictment sought to enhance the charges from fourth-degree felonies to
second-degree felonies under R.C. 2907.04(B)(4). That subdivision elevates the
penalty for violating R.C. 2907.04 if the defendant “previously has been convicted
of” certain sex crimes, including unlawful sexual conduct with a minor.
        {¶ 4} Pendergrass moved to dismiss the indictment on the ground that the
enhancement does not apply when the alleged criminal conduct predates the prior
conviction. The trial court agreed with Pendergrass and granted his motion. The
state appealed and the court of appeals reversed. The majority of the panel agreed
with the state that any conviction for a qualifying offense prior to the indictment


1. According to the court of appeals, the 2016 indictment was for criminal behavior that occurred
sometime between October 1 and December 1, 2015. 2018-Ohio-3813, 111 N.E.3d 120, ¶ 2.
Although the record does not contain that indictment, the parties do not dispute these dates.


                                               2
                                January Term, 2020




was sufficient to trigger the R.C. 2907.04(B)(4) enhancement.               Because
Pendergrass had been convicted of unlawful sexual conduct with a minor in
September of 2016, they reasoned that the 2017 indictment could include the
enhancement, even though the charged criminal activity predated the prior
conviction. 2018-Ohio-3813, 111 N.E.3d 120, ¶ 17; id. at ¶ 26 (Froelich, J.,
concurring).
                                 The statutory text
       {¶ 5} In interpreting a statute, we begin with the statutory language.
R.C. 2907.04(B) states:


                (B) Whoever violates this section is guilty of unlawful
       sexual conduct with a minor.
                (1) Except as otherwise provided in divisions B(2), (3), and
       (4) of this section, unlawful sexual conduct with a minor is a felony
       of the fourth degree.
                ***
                (4) If the offender previously has been convicted of or
       pleaded guilty to [rape, sexual battery, or unlawful sexual conduct
       with a minor], unlawful sexual conduct with a minor is a felony of
       the second degree.


(Emphasis added.) Under dispute here is the proper interpretation of the phrase
“previously has been convicted” in subdivision (B)(4). Our resolution of that
dispute turns on determining the referent of “previously” so as to allow us to answer
the question “previous to what?” Is any qualifying conviction previous to the
indictment sufficient, or must the conviction have been previous to the charged
criminal act?



                                         3
                              SUPREME COURT OF OHIO




         {¶ 6} On its face, the statute does not directly answer the question. There
is no obvious textual referent to the word “previously.” Nonetheless, both the state
and Pendergrass argue that the statutory language supports their preferred
interpretation. Because our initial reading of the statute does not provide an
obvious answer to the question in front of us, we turn to the arguments of each
party.
                     The state’s argument lacks textual support
         {¶ 7} The state, in its brief, insists that the plain meaning of the statutory
language unambiguously requires only that the qualifying conviction predate the
new indictment. But the state doesn’t engage in any actual analysis of the statutory
text. Instead, it relies largely upon arguments about case law and public policy to
support its preferred reading.
         {¶ 8} The state hangs its hat primarily on this court’s decisions in State v.
Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, and State v. Brantley,
1 Ohio St.2d 139, 205 N.E.2d 391 (1965). Smith dealt with a sexually-violent-
predator specification that imposed a greater penalty on a person convicted of a
sexually violent offense when that person was found to be a “sexually violent
predator”—defined as one “ ‘who has been convicted of or pleaded guilty to
committing * * * a sexually violent offense and is likely to engage in the future in
one or more sexually violent offenses.’ ” (Emphasis in Smith.) Smith at ¶ 8. At
issue was whether the sexually-violent-predator enhancement could be premised
on the conviction for a sexually violent offense in the same indictment or whether
there had to be a prior conviction for a sexually violent offense. This court said
that there had to be a conviction “prior to the indictment”—language upon which
the state seizes. Id. at ¶ 32. But given that the statutory language and the legal
question under dispute in Smith are wholly unlike those presented here, it is hard to
see how Smith is a relevant precedent.



                                           4
                                       January Term, 2020




         {¶ 9} The same goes for Brantley. In that case, a gambling statute imposed
a misdemeanor penalty “for the first offense” and a felony penalty “for each
subsequent offense.” Id. at 140. The defendant violated the statute in 1961 and
was convicted for that violation in March of 1962. Id. at 141. He violated the
statute a second time in February 1962. Id. This court had to decide whether the
defendant could be indicted for a “subsequent offense” even though the second
crime had been committed prior to the first conviction. This court reasoned that
since the statute referenced the first or subsequent offense and not first or
subsequent conviction, it did not matter that the conviction for the first offense
occurred after the commission of the second offense—the second offense was a
subsequent one.         Id.    For obvious reasons, Brantley is of limited use here:
R.C. 2907.04(B)(4) uses totally different language—“previously has been
convicted of” rather than “subsequent offense.”                    And the temporal order is
different—the present case involves an enhancement for the first-committed crime,
whereas Brantley involved an enhancement for the second-committed crime.
         {¶ 10} The state and the dissenting opinion argue that had the General
Assembly intended that the previous conviction predate the criminal act, it could
have said so explicitly.          But this sort of argument makes little sense when
confronted with two plausible competing interpretations of a statute.2 Sure, the
General Assembly could have said that the heightened penalty applies only when
the previous conviction predates the offense. But it just as easily could have said
that the heightened penalty applies whenever the previous conviction predates the
indictment. So the fact that it said neither proves nothing.




2. Rather, this sort of argument makes sense only when one party offers up an interpretation that
imposes additional implied constraints on the application of a statute that aren’t based in the plain
text. It’s of no use at all in the case of a bona fide ambiguity in the statutory language. In that sort
of case, it will always be equally true for both competing interpretations that the General Assembly
could have more clearly stated its aims.


                                                   5
                              SUPREME COURT OF OHIO




        {¶ 11} In a similar vein, the state and the dissenting opinion contend that
Pendergrass’s interpretation would require us to insert words into the statute so as
to limit its application to cases where the qualifying conviction came before the
charged criminal act.     Again, this line of reasoning makes little sense when
confronted with an interpretive dispute arising from a statute’s failure to explicitly
differentiate between two competing interpretations. In such a case, making either
interpretation explicit will require inserting additional words. In essence, the state
and the dissenting opinion seem to share the view that because Pendergrass’s
interpretation is more restrictive than the state’s, insofar as it makes the
enhancement apply in fewer cases, the state’s interpretation wins. But when
interpreting criminal statutes, close calls don’t go to the state, and in the face of an
ambiguity, we don’t default to interpreting the statute so as to allow the state to
punish more rather than less.       Indeed, the exact opposite is true.       See R.C.
2901.04(A).
        {¶ 12} Finally, the state makes a policy argument based on the fact that
children often delay in reporting instances of sex abuse, and hence, someone like
Pendergrass might avoid the heightened penalty altogether if victims come forward
in a certain order.     But that argument illustrates one of the problems with
hypothesizing about the General Assembly’s preferred policy outcomes—one tends
to hypothesize the policy outcomes that they personally endorse.
        {¶ 13} Indeed, if one takes to divining statutory meaning through guesses
about the legislature’s preferred policy outcomes, it is not hard to come up with
outcomes that cut against the state’s interpretation. For example, on the state’s
interpretation, when a defendant has committed multiple violations of R.C.
2907.04, the minimum sentence he faces would depend on the order in which the
prosecution brings charges. If the prosecution brings charges in a staggered
manner, rather than all at once, then the minimum penalty on the later charged
crimes increases. In short, the severity of the penalty is contingent solely on how


                                           6
                                January Term, 2020




the crime is prosecuted and not on differences in what a defendant did. As the
United States Supreme Court has commented, it is a “strange consequence[]” for a
statute to allow the prosecution to increase the punishment solely by altering the
manner—i.e., the order—of charging the crimes. Deal v. United States, 508 U.S.
129, 134, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993).
       {¶ 14} Further, the state’s interpretation allows for the harsher punishment
of a person for something that he hasn’t yet done at the time he commits the criminal
act. Remember that Pendergrass is being prosecuted for a crime that he is alleged
to have committed sometime between May 2013 and May 2015. The previous
conviction that the state now treats as triggering the heightened penalty was for a
crime that occurred towards the end of 2015. Thus, at the time he committed the
offense at issue in this appeal, Pendergrass would have reasonably expected that he
was committing a crime that was a felony of the fourth degree, and not a felony of
the second degree.
       {¶ 15} The point is that it is not our role, and we are ill-equipped, to divine
statutory meaning based on hunches about policy outcomes we suspect the
legislature might have preferred. And here, there is no more reason to presume that
legislators would want to include a heightened penalty whenever a person is
convicted of a crime a second time, than that they would want to include a
heightened penalty only when a person fails to correct his ways again after having
once been punished. See Deal at 136.
       {¶ 16} Thus, after working through the state’s arguments, we still don’t
have a credible answer to the question “previous to what,” and we are largely where
we started. The dissenting opinion suggests that in not accepting the state’s
interpretation, this court is making the mistake of “search[ing] for ambiguity before
looking at the specific language of the statute.” Dissenting opinion at ¶ 33. But as
we have explained, the specific language of the statute presents an interpretive
puzzle that cannot be glossed over—the word “previously” needs a referent that


                                         7
                              SUPREME COURT OF OHIO




can answer the question “previous to what?” And the statutory language provides
no obvious answer to that question. While it is true that a court ought not create an
ambiguity where none exists, it is equally true that a court ought not ignore a bona
fide interpretive puzzle that must be resolved.
       {¶ 17} Towards the conclusion of its opinion, the dissent insists that “R.C.
2907.04(B) plainly states that a person must only have an applicable prior
conviction on his or her record at the time new charges are filed in order for that
offender to be liable for a second-degree felony.” Dissenting opinion at ¶ 37. As
should be obvious by now, the statute doesn’t plainly state that at all. If the General
Assembly had said that, then there would be no question regarding the proper
interpretation of the statute. But it didn’t, so here we are.
           The best textual argument supports Pendergrass’s interpretation
       {¶ 18} Pendergrass argues that the plain reading of the text as a whole—as
well as federal and state case law—supports his interpretation. At the very least,
he says, the statute is ambiguous, and thus he should win under the rule of lenity.
       {¶ 19} We find some merit in his textual argument. Where we are is that
one cannot resolve the interpretive dispute by a casual glance at the face of the text,
because there is no obvious referent for the word “previously” in R.C.
2907.04(B)(4) that provides a clear answer to the question “previous to what.”
Rather, one must draw an inference. And while there is no slam-dunk argument for
either position here, Pendergrass’s read on the statute at least has some textual
support.
       {¶ 20} Looking to the broader statutory language, rather than just
subdivision (B)(4) in isolation, reveals some basis for thinking that the referent is
the criminal act.
       {¶ 21} Here again is the relevant statutory language in R.C. 2907.04(B):




                                           8
                                January Term, 2020




                (B) Whoever violates this section is guilty of unlawful
       sexual conduct with a minor.
               ***
                (4) If the offender previously has been convicted of [a
       qualifying offense], unlawful sexual conduct with a minor is a
       felony of the second degree.


(Emphasis added.)
       {¶ 22} Read together then, the statute provides: If “whoever violates this
section” “previously has been convicted” of a qualifying offense then “unlawful
sexual conduct with a minor is a felony of the second degree.” Thus, in context,
the passages suggest that the “previously has been convicted” language refers to
“whoever violates.”      The combination of the present tense “violates” with
“previously has been convicted” indicates that the existence of the enhancement
depends on a previous conviction at the time of the violation.
       {¶ 23} To illustrate why this is the most natural reading, consider another
grammatically analogous statement.         Consider a house rule that provides:
“Whoever steals cookies from the cookie jar gets no dessert tonight, and if he has
previously been caught stealing from the cookie jar, he gets no dessert for a week.”
The intuitive meaning here is that if you steal cookies again after you were caught
the first time, you don’t get dessert for a week.
       {¶ 24} So, based on the broader statutory language there is reason to think
that the referent for the word “previously” in subdivision (B)(4) is the violation, not
the indictment. This suggests that in order for the enhancement to apply, a
defendant must have a qualifying conviction when he commits the charged offense.




                                          9
                             SUPREME COURT OF OHIO




 At a minimum, the case should be decided in Pendergrass’s favor based on the
                                    rule of lenity
       {¶ 25} As we have explained, looking to the language of the statute,
Pendergrass has the more plausible interpretation. But even if there are remaining
doubts, the statute is at least ambiguous. R.C. 2901.04(A)—Ohio’s statutory rule
of lenity—states that “sections of the Revised Code defining offenses or penalties
shall be strictly construed against the state, and liberally construed in favor of the
accused.” As we have explained, the function of this rule is to prevent a court from
“interpret[ing] a criminal statute so as to increase the penalty it imposes on a
defendant if the intended scope of the statute is ambiguous.” State v. Elmore, 122
Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 38; see also United States v.
Santos, 553 U.S. 507, 514, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) (plurality
opinion). Because no sound textual argument resolves the facial ambiguity in the
statute in favor of the state’s interpretation, at the very least, Pendergrass prevails
under the rule of lenity.
                                     Conclusion
       {¶ 26} We reverse the court of appeals and reinstate the trial court’s
judgment.
                                                                  Judgment reversed.
       O’CONNOR, C.J., and KENNEDY and DONNELLY, JJ., concur.
       STEWART, J., concurs in judgment only.
       FISCHER, J., dissents, with an opinion joined by FRENCH, J.
                                _________________
       FISCHER, J., dissenting.
       {¶ 27} Respectfully, I must dissent.
       {¶ 28} This case simply asks this court to interpret only the meaning of the
phrase “previously has been convicted” in R.C. 2907.04(B)(4). And as statutory
interpretation involves a question of law, this court must review the judgment of


                                          10
                                  January Term, 2020




the court of appeals de novo. State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010,
998 N.E.2d 401, ¶ 9. When interpreting a statutory provision, our primary concern
must be to “ascertain and give effect to the intention[s]” of the legislature. State v.
Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 7, citing Henry
v. Cent. Natl. Bank, 16 Ohio St.2d 16, 242 N.E.2d 342 (1968), paragraph two of the
syllabus. To determine legislative intent, we first look to the plain language of the
statute. Id. “If the meaning of the statute is unambiguous and definite, it must be
applied as written and no further interpretation is necessary.” (Emphasis added.)
State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543,
545, 660 N.E.2d 463 (1996). And that is the exact situation at bar.
                            The Statute Is Unambiguous
       {¶ 29} R.C. 2907.04 states:


               (A) No person who is eighteen years of age or older shall
       engage in sexual conduct with another, who is not the spouse of the
       offender, when the offender knows the other person is thirteen years
       of age or older but less than sixteen years of age, or the offender is
       reckless in that regard.
               (B) Whoever violates this section is guilty of unlawful
       sexual conduct with a minor.
               (1) Except as otherwise provided in divisions (B)(2), (3), and
       (4) of this section, unlawful sexual conduct with a minor is a felony
       of the fourth degree.
               (2) Except as otherwise provided in division (B)(4) of this
       section, if the offender is less than four years older than the other
       person, unlawful sexual conduct with a minor is a misdemeanor of
       the first degree.



                                          11
                                 SUPREME COURT OF OHIO




                    (3) Except as otherwise provided in division (B)(4) of this
          section, if the offender is ten or more years older than the other
          person, unlawful sexual conduct with a minor is a felony of the third
          degree.
                    (4) If the offender previously has been convicted of or
          pleaded guilty to a violation of section 2907.02 [rape], 2907.03
          [sexual battery], or 2907.04 of the Revised Code or a violation of
          former section 2907.12 of the Revised Code, unlawful sexual
          conduct with a minor is a felony of the second degree.


(Emphasis added.)
          {¶ 30} On its face, this statute is clear.      The applicable words are
unambiguous: “If the offender previously has been convicted of or pleaded guilty
to a [a qualifying offense], unlawful sexual conduct with a minor is a felony of the
second degree.” Id. That wording could not be clearer. The only way to make
R.C. 2907.04(B)(4) ambiguous is to either add or subtract words or concepts, which
this court cannot, and absolutely should not, do. See Cincinnati City School Dist.
Bd. of Edn. v. State Bd. of Edn., 122 Ohio St.3d 557, 2009-Ohio-3628, 913 N.E.2d
421, ¶ 19; In re Adoption of Holcomb, 18 Ohio St.3d 361, 366, 481 N.E.2d 613
(1985).
                           The Plain Language of R.C. 2907.04
          {¶ 31} A person commits the offense of unlawful sexual conduct with a
minor when his actions satisfy the elements of the offense set forth in division (A)
of the statute. However, unlike division (A), subdivision (B)(4) provides an
element that enhances the degree of the offense when the charging document
provides notice that the additional element is alleged to exist and it is then proved
beyond a reasonable doubt that the element does exist. See R.C. 2945.75(A)(1);
State v. Gwen, 134 Ohio St.3d 284, 2012-Ohio-5046, 982 N.E.2d 626, ¶ 11 (“When


                                            12
                                January Term, 2020




the existence of a prior conviction affects the degree of the offense * * * it must be
proven beyond a reasonable doubt before the level of the offense may be
increased”).
       {¶ 32} Because a qualifying prior conviction has no bearing on whether a
person commits a violation of unlawful sexual conduct with a minor under R.C.
2907.04(A), the violation giving rise to the subsequent prosecution does not serve
as any type of defining event that the previous conviction must precede. On the
contrary, if division (A) sets forth the elements of the offense that must be proved
beyond a reasonable doubt for a finding of guilt, while subdivisions (B)(1) through
(4) designate at what level and degree the offense will be charged based on the
presence of an additional element or lack thereof, then it is only logical for the
phrase “previously has been convicted” to refer to the period of time before charges
are filed or an indictment is secured. Had the General Assembly intended that the
prior conviction be entered before the alleged violation that is the subject of the
subsequent prosecution, it could have—rather simply and explicitly—stated that
requirement, as it has done elsewhere in the Revised Code.                 See, e.g.,
R.C. 2950.01(F)(1)(j) (imposing a tier II sex-offender classification when the
offender pleads guilty to or is convicted of “[a]ny sexually oriented offense that is
committed after the sex offender previously has been convicted of * * * any sexually
oriented offense or child-victim oriented offense for which the offender was
classified a tier I sex offender/child-victim offender” [emphasis added]). The
legislature did not do so, and this court should not do so now.
       {¶ 33} We must be careful not to search for ambiguity before looking at the
specific language of the statute—that is, we must avoid the risk of creating an
ambiguity where none exists by getting lost in our attempts to analyze the statute
rather than simply looking to the plain meaning of the statute’s specific wording at
the outset. We must look to the statute first to determine whether its meaning is
plain. State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 584, 651 N.E.2d 995


                                         13
                             SUPREME COURT OF OHIO




(1995); see also Iddings v. Jefferson Cty. School Dist. Bd. of Edn., 155 Ohio St.
287, 290, 98 N.E.2d 827 (1951) (“When the meaning is plain from the language
employed, an attempt to construe it only tends to make ambiguous that which is
simple and clear”). Since R.C. 2907.04(B) is clear and unambiguous on its face,
no further analysis is needed. See Herman at 584; Savarese, 74 Ohio St.3d at 545,
660 N.E.2d 463.
       {¶ 34} I would reject Pendergrass’s argument that if R.C. 2907.04(B)(4)
requires only that a conviction be entered prior to a subsequent indictment, then the
term “previously” is rendered meaningless in that provision. In making this
argument, Pendergrass relies upon United States v. Talley, 16 F.3d 972 (8th
Cir.1994). In Talley, the 8th Circuit Court of Appeals was called upon to interpret
the requirements of 18 U.S.C. 924(e), a federal sentencing-enhancement provision
that applies to “ ‘a person who violates section 922(g) of this title and has three
previous convictions * * * for a violent felony or serious drug offense.’ ” (Emphasis
in Talley.) Id. at 975, quoting 18 U.S.C. 924(e)(1). The court reasoned,


       If previous convictions meant those convictions a defendant had
       accumulated prior to sentencing, Congress could have omitted the
       word previous because, at sentencing, a district court could never
       consider convictions not yet in existence. Thus, adoption of the
       government’s interpretation of previous convictions effectively
       would render the term previous superfluous.


(Emphasis sic.) Id. at 975-976.
       {¶ 35} Unlike the Eighth Circuit in Talley, in addressing the offense-level-
enhancement issue before us, this court should not conclude that the word
“previously” is rendered meaningless unless we interpret R.C. 2907.04(B)(4) to
require any such conviction to be entered prior to the commission of an offense


                                         14
                                January Term, 2020




charged subsequently. Within R.C. 2907.04(B), there are four separate provisions
that outline the offense levels for unlawful sexual conduct with a minor.
Subdivision (B)(1) states that “unlawful sexual conduct with a minor is a felony of
the fourth degree.” Then, depending on the age of the offender in relation to the
victim, subdivisions (B)(2) and (B)(3) either reduce or enhance the offense level or
degree. Lastly, subdivision (B)(4) states that unlawful sexual conduct with a minor
is a felony of the second degree “[i]f the offender previously has been convicted of
* * * a violation of section 2907.02, 2907.03, or 2907.04 * * *.” When viewed in
light of the provisions in (B)(1) through (3), the term “previously” in (B)(4) retains
obvious and logical meaning because it clarifies that a person facing charges for
unlawful sexual conduct with a minor for the first time, if convicted, is guilty of a
fourth-degree felony, not a second-degree felony. If the legislature had used the
phrase “has been convicted” instead of “previously has been convicted” in
subdivision (B)(4), that language could cause confusion and ambiguity as to
whether a first-time offense becomes a second-degree felony, once a conviction is
entered on that offense.
        {¶ 36} The inclusion of the word “previously” in R.C. 2907.04(B)(4) also
aids courts when applying that subdivision in cases involving multiple counts of
unlawful sexual conduct with a minor. If the word “previously” were omitted from
the statute, then in a case in which a defendant is convicted of multiple counts of
that offense within the same case, the sentencing court could treat one of the counts
as a fourth-degree felony and the remaining counts as second-degree felonies. This
scenario is foreclosed, however, due to the wording of R.C. 2907.04(B)(4). The
inclusion of the word “previously” in that subdivision makes it clear that a
conviction for unlawful sexual conduct with a minor is a second-degree felony only
when the offender has already been convicted of a qualifying offense in an earlier
case.



                                         15
                             SUPREME COURT OF OHIO




                                   Plain Language
       {¶ 37} This case boils down to nothing more than the plain and
unambiguous language of a statute. Although R.C. 2907.04(B)(4) establishes that
a prior conviction is an element to be proved beyond a reasonable doubt, the
legislature did not require that the conviction be present prior to the commission of
the offense that is subsequently charged. In other words, the fact that a conviction
is an element of the offense that must be raised and proven at trial does not mean
that the conviction must exist when the charged conduct occurs and not just when
the offense is charged. Thus, R.C. 2907.04(B) plainly states that a person must
only have an applicable prior conviction on his or her record at the time new charges
are filed in order for that offender to be liable for a second-degree felony. To hold
otherwise would be to limit the General Assembly’s ability to execute its intent and
to, effectively, make this court a legislative policymaker. That is not, and should
not be, the role of this court. See Arbino v. Johnson & Johnson, 116 Ohio St.3d
468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 113; see also Iddings, 155 Ohio St. at
290, 98 N.E.2d 827 (“To construe or interpret what is already plain is not
interpretation but legislation, which is not the function of courts”).
                                     Conclusion
       {¶ 38} I agree with the state that the plain and unambiguous language of the
phrase “previously has been convicted” in R.C. 2907.04(B)(4) requires only that a
person have a qualifying prior conviction on his or her record at the time new
charges are filed in order for that offender to be liable for a second-degree felony.
Nothing, absolutely nothing, in subdivision (B)(4) of the statute, or even R.C.
2907.04 as a whole, explicitly or impliedly indicates that the General Assembly
intended that the prior conviction have preceded the conduct giving rise to a
subsequent indictment.        The plain language of R.C. 2907.04(B)(4) is
unambiguous—it requires only that the person have been previously convicted of a



                                          16
                                January Term, 2020




qualifying offense before the state initiates criminal proceedings for a violation of
R.C. 2907.04.
       {¶ 39} For these reasons, I must respectfully dissent and would affirm the
judgment of the Second District Court of Appeals.
       FRENCH, J., concurs in the foregoing opinion.
                               _________________
       Mathias H. Heck, Montgomery County Prosecuting Attorney, and Heather
N. Ketter and Lisa M. Light, Assistant Prosecuting Attorneys, for appellee.
       Timothy Young, Ohio Public Defender, and Victoria A. Bader, Assistant
State Public Defender, for appellant.
                               _________________




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