[Cite as State v. Blair, 2013-Ohio-3477.]


                                    IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :         OPINION

                 Plaintiff-Appellee,            :
                                                          CASE NO. 2012-P-0145
        - vs -                                  :

LARRY BLAIR,                                    :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2011 CR
0740.

Judgment: Reversed and remanded.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

George G. Keith, 135 Portage Trail, P.O. Box 374, Cuyahoga Falls, OH 44223 (For
Defendant-Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Larry Blair, appeals his conviction for Sexual Battery

following the entry of a no contest plea.       The issue before this court is whether a

defendant may be convicted of Sexual Battery against a stepchild after the dissolution

of the marriage that created the affinity by the death of the mother. For the following

reasons, we reverse and remand the decision of the court below.
       {¶2}   On November 29, 2011, the Portage County Grand Jury returned an

Indictment against Blair, charging him with two counts of Sexual Battery, felonies of the

third degree in violation of R.C. 2907.03(A)(5) and (B). Both counts provided:

       {¶3}   LARRY BLAIR on or about 25 JULY 2011 in the County of Portage

              * * * did * * * engage in sexual conduct with T.J. not the spouse of

              said LARRY BLAIR when said LARRY BLAIR was said T.J.’s

              natural or adoptive parent or a stepparent, or guardian, or

              custodian, or person in loco parentis of said T.J.

       {¶4}   On December 9, 2012, Blair was arraigned and entered a plea of not

guilty. The case was scheduled for trial on September 6, 2012.

       {¶5}   On September 6, 2012, counsel for Blair made an oral motion to dismiss

the Indictment on the grounds that Blair was not T.J.’s stepparent at the time of the

sexual conduct charged in the Indictment.          Counsel argued that the stepparent

relationship between Blair and T.J. dissolved upon the death of T.J.’s mother and that,

at the time of the sexual conduct, T.J. was an adult and had completed high school.

       {¶6}   The trial court denied the motion to dismiss.

       {¶7}   Thereupon, Blair entered a plea of no contest to one count of Sexual

Battery; the State moved to dismiss the second count.              The prosecutor read the

following stipulated facts into the record:

       {¶8}   That the victim in this case * * * was born on or about the 29th day

              of December, 1992.        That as an infant, she was adopted by

              Rosemary Johnson, who became her mother. * * * [T]hat on or

              about August 20, 22, 2002, Larry Blair and Rosemary Johnson




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              became married and at that time, Larry Blair became stepfather to

              T.J. * * * who * * * would have been a juvenile at the time they were

              married. * * * Rosemary Johnson, the mother of T.J. and the wife

              of Larry Blair, passed away from cancer on or about May 10, 2009.

              * * * Rosemary Johnson had arranged for the two daughters, T.J.

              and her other younger daughter, to go with another family member,

              but that factually the daughters * * * continued to live with and

              reside with Larry Blair, * * * the person they knew as their

              stepfather. At that time, the alleged victim * * * was still a juvenile

              and would have been approximately fifteen or sixteen years of age.

              * * * [O]n or about December 29 of 2010 * * *, the alleged victim * *

              * turned eighteen years of age and at that time she was living in

              Streetsboro with Larry Blair and her younger sister. Both sides will

              then stipulate, that while living in the home, on or about the 25th

              day of July, 2011, * * * the Defendant, Larry Blair, engaged in

              sexual conduct with T.J.

       {¶9}   The trial court found Blair guilty of Sexual Battery.

       {¶10} On October 10, 2012, the trial court issued an Order and Journal Entry,

memorializing Blair’s sentence.      The court sentenced Blair to a two-year term of

imprisonment (stayed pending appeal); imposed a fine of $300 plus costs; designated

him a Tier III Sex Offender; and advised him that he would be subject to a mandatory

five-year period of postrelease control.




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       {¶11} On November 7, 2012, Blair filed a Notice of Appeal. On appeal, Blair

raises the following assignment of error:

       {¶12} “[1.] The trial court erred in denying defendant’s motion to dismiss the

indictment.”

       {¶13} “Prior to trial, any party may raise by motion any defense, objection,

evidentiary issue, or request that is capable of determination without the trial of the

general issue,” including “[d]efenses and objections based on defects in the indictment.”

Crim.R. 12(C)(2). “A motion to dismiss an indictment tests the legal sufficiency of the

indictment, regardless of the quality or quantity of the evidence that may be introduced

by either the state or the defendant.” State ex rel. Steffen v. Judges of the Court of

Appeals for the First Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d

906, ¶ 34. “In conducting this pretrial review, courts may look to ‘evidence beyond the

face of the indictment,’” but “may not decide ‘what would be the general issue at trial.’”

State v. Palmer, 131 Ohio St.3d 278, 2012-Ohio-580, 964 N.E.2d 406, ¶ 22, quoting

State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 18.

       {¶14} The sufficiency of an indictment is a legal question reviewed under a de

novo standard. State v. Thornsbury, 4th Dist. No. 12CA9, 2013-Ohio-1914, ¶ 6.

       {¶15} In the present case, the language of the Indictment tracks the language of

the Sexual Battery statute, R.C. 2907.03(A)(5), and, therefore, is legally sufficient on its

face. State v. Jackson, 134 Ohio St.3d 184, 2012-Ohio-5561, 980 N.E.2d 1032, ¶ 14

(cases cited); Noble v. State, 22 Ohio St. 541 (1872), paragraph two of the syllabus

(“[a]n indictment for incest with one’s step-daughter sufficiently describes the

relationship of the parties, by alleging it to be that of step-father and step-daughter,




                                             4
without setting forth the marriage of the defendant to the mother, or the subsistence of

the marriage relation at the time of committing the crime”).

        {¶16} The issue of whether Blair was in the position of T.J.’s stepparent was a

general issue to be determined at trial, based on the quality and/or quantity of the

evidence. Thus, that issue could not be properly addressed in a pre-trial motion to

dismiss. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, at ¶ 14-18.

        {¶17} Blair’s challenge to the Indictment must also fail due to his no contest

plea.

        {¶18} “The plea of no contest is not an admission of defendant’s guilt, but is an

admission of the truth of the facts alleged in the indictment, information, or complaint.”

Crim.R. 11(B)(2). “[W]here the indictment, information, or complaint contains sufficient

allegations to state a felony offense and the defendant pleads no contest, the court

must find the defendant guilty of the charged offense.” State v. Bird, 81 Ohio St.3d 582,

584, 692 N.E.2d 1013 (1998). “[B]y pleading no contest to the indictment,” a defendant

“is foreclosed from challenging the factual merits of the underlying charge.” Id. While

“the trial court * * * possesses discretion to determine whether the facts alleged in the

indictment, information, or complaint are sufficient to justify conviction of the offense

charged[,] * * * the defendant who pleads no contest waives the right to present

additional affirmative factual allegations to prove that he is not guilty of the charged

offense.” State ex rel. Stern v. Mascio, 75 Ohio St.3d 422, 423-424, 662 N.E.2d 370

(1996).

        {¶19} Finally, we must consider whether the stipulation of facts presented as

part of the plea colloquy undermined the sufficiency of the Indictment.




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       {¶20} Many appellate districts have recognized that the State is not required to

present a recitation of the facts underlying the indictment before a no contest plea is

accepted. State v. Kruger, 2nd Dist. No. 2005-CA-19, 2006-Ohio-2361, ¶ 2 (“the trial

court is not required, in accepting a plea of no contest to a felony, to elicit a recitation of

the circumstances of the alleged offense”); State v. Moore, 9th Dist. No. 21182, 2003-

Ohio-244, ¶ 8 (“[i]n felony cases where a defendant pleads no contest, the state is not

obligated to present evidence proving the defendant guilty beyond a reasonable doubt”);

State v. Kutz, 87 Ohio App.3d 329, 337, 622 N.E.2d 362 (6th Dist.1993) (“[t]he trial court

needs only to examine the facts alleged in the indictment to determine whether a

defendant is guilty of the crime charged”).

       {¶21} It is similarly recognized, however, that, where the State presents a

statement of facts that is positively inconsistent with the existence of an essential

element of the offense charged in the indictment, a trial court errs by finding the

defendant guilty based on his no contest plea. State v. Wooldridge, 2nd Dist. No.

18086, 2000 Ohio App. LEXIS 4639, *6 (Oct. 6, 2000) (“although the omission of a

fundamental fact is permissible, the trial court may not find a defendant guilty based on

his no contest plea if the state’s statement of facts absolutely negates the existence of

an essential element of the offense”); State v. Cohen, 60 Ohio App.2d 182, 185, 396

N.E.2d 235 (1st Dist.1978) (“the trial court erred in proceeding to sentence on the

indicted charge under the no contest plea where the case against the defendant was

incontestably deficient in the absence of a material element of the offense charged”);

State v. Mullen, 191 Ohio App.3d 788, 2011-Ohio-37, 947 N.E.2d 762, ¶ 13-19 (3rd

Dist.) (cases cited).




                                              6
       {¶22} Blair raises the argument that the parties’ stipulated facts are inconsistent

with the existence of a stepparent relationship with the victim: “the stepparent-stepchild

[relationship] terminated upon both the death of [Blair’s] wife and the emancipation of

the victim when she turned eighteen and graduated high school.”            Reply Brief of

Appellant, at 4.

       {¶23} Blair relies on the Ohio Supreme Court’s decision of State v. Lowe, 112

Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512.            In Lowe, the Supreme Court

considered whether R.C. 2907.03(A)(5) was constitutional as applied to consensual

sexual conduct between a stepparent and an adult stepchild. The court held the statute

constitutional, but commented that it would not apply where the defendant “divorced his

wife and no longer was a stepparent to his wife’s daughter, [since] the stepparent-

stepchild relationship would be dissolved.” Id. at ¶ 26. Blair contends that the death of

his wife (the victim’s mother) is the equivalent of divorce and effectively ends the

stepparent-stepchild relationship.

       {¶24} Blair’s argument must be sustained under the Ohio Supreme Court’s

decision of Noble v. State, 22 Ohio St. 541, which held: “The relation of step-father and

step-daughter, within the meaning of the statute against incest, does not exist after the

termination of the marriage relation between the step-father and the step-daughter’s

mother.” Id. at syllabus. “It is established law that the relation of step-father and step-

daughter, at least within the meaning of statutes against the crime of incest, terminates

with the death or divorce of the mother.” Id. at 544. We are bound by the Supreme

Court’s holding in Noble. State v. Brown, 47 Ohio St. 102, 23 N.E. 747, 749 (1890)

(“[t]he supposed hardship of the law is much mitigated by the circumstance that kinship




                                            7
by affinity of the husband and wife, respectively, with the family of the other terminates

with the dissolution of the marriage”).

       {¶25} Accordingly, Blair’s sole assignment of error has merit.

       {¶26} For the foregoing reasons, Blair’s conviction for Sexual Battery is reversed

and this matter is remanded for further proceedings consistent with this opinion. Costs

to be taxed against the appellee.



TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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