         [Cite as State v. Green, 2013-Ohio-1197.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-120283
                                                         TRIAL NO. 11CRB-31331A
        Plaintiff-Appellee                           :

  vs.                                                :        O P I N I O N.

DENNIS GREEN,                                        :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 29, 2013


John Curp, City Solicitor, Charles A. Rubenstein, City Prosecutor, and Jennifer
Bishop, Assistant City Prosecutor, for Plaintiff-Appellee,

David Hoffmann, and the Office of the Hamilton County Public Defender, for
Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




H ILDEBRANDT , Judge.

       {¶1}    Defendant-appellant Dennis Green appeals his conviction for

solicitation. For the following reasons, we affirm.

       {¶2}    In October 2011, Green asked an undercover police officer to

engage in anal sex for $20. Green was arrested for solicitation in violation of R.C.

2907.24(A) and loitering to engage in solicitation in violation of R.C. 2907.241.

Green moved to dismiss the charges against him, arguing that the criminal

statutes violated his substantive-due-process rights. The trial court denied the

motion. Green then entered a no-contest plea to solicitation, and in exchange the

state dismissed the loitering charge. Green was sentenced to 60 days in jail with

55 days suspended, and one year of community control. The trial court stayed his

sentence pending this appeal.

       {¶3}    In his single assignment of error, Green contends that because the

solicitation statute is unconstitutional, the trial court erred by denying his motion

to dismiss the solicitation charge. Green argues that the liberty component of the

Due Process Clause protects the act of consenting adults engaging in sexual

activity for hire; i.e., prostitution, and, therefore, the solicitation of another adult

to engage in prostitution is a fundamental right that may not constitutionally be

prohibited by the state. We are unpersuaded.

       {¶4}    In addressing Green’s assignment, we must presume that the state

statute prohibiting solicitation, R.C. 2907.24, is constitutional. The burden is on

Green to prove otherwise. Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795

N.E.2d 633, ¶ 4.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}    R.C. 2907.24(A) provides that “[n]o person shall solicit another to

engage with such other person in sexual activity for hire.”

       {¶6}    There are two tests used to assess the constitutionality of a

       statute under the Due Process clause: strict scrutiny or rational-

       basis scrutiny. When the law restricts the exercise of a fundamental

       right, the strict-scrutiny test is used.     A statute survives strict

       scrutiny if it is narrowly tailored to serve a compelling state interest.

       * * * Where there is no fundamental right at issue, a rational basis

       test is used to protect liberty interests. Under the rational-basis

       test, a statute survives if it is reasonably related to a legitimate

       government interest.

State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 18.

       {¶7}    We first must decide whether there is a fundamental right to

engage in sexual activity for hire, and thus, to solicit that activity. We hold that

there is not. While no Ohio court has addressed the constitutionality of R.C.

2907.24, the Eighth Appellate District, in addressing a constitutional challenge to

a municipal ordinance prohibiting solicitation, held that there was no

fundamental right affected by the solicitation ordinance. Cleveland v. Huff, 14

Ohio App.3d 207, 208, 470 N.E.2d 934 (8th Dist.1984). Further, courts in other

jurisdictions considering solicitation statutes similar to R.C. 2907.24 have held

that there is no fundamental right to engage in sexual activity for hire or to solicit

another for such. State v. Henderson, 269 N.W.2d 404 (Iowa 1978); Lutz v.

United States, 434 A.2d 442 (D.C.App.1981).

       {¶8}    Green cites to Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472,

156 L.Ed.2d 508 (2003), for the proposition that prostitution is a fundamental



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                      OHIO FIRST DISTRICT COURT OF APPEALS



right. In Lawrence, the United States Supreme Court overturned a Texas statute

that criminalized “deviate sexual intercourse” between individuals of the same

sex. Green argues that the holding in Lawrence recognized that private sexual

activity between consenting adults is constitutionally protected under the Due

Process Clause. We disagree. First, the Lawrence court specifically pointed out

that the issue before it did not involve prostitution. Id. at 578. Second, the Ohio

Supreme Court, in addressing whether the United States Supreme Court in

Lawrence had announced a new “fundamental right to all consensual [sexual]

activity,” held that it had not. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861

N.E.2d 512 at ¶ 24.

       {¶9}    Given that there is no fundamental right to engage in sexual

activity for hire, we employ a rational-basis review to assess the constitutionality

of R.C. 2907.24.      Here, the solicitation statute is rationally related to the

legitimate government interest in public health, safety, morals and general

welfare. For example, the solicitation statute is reasonably related to promoting

the state’s interest in public safety by prohibiting the first step toward committing

the act of prostitution, a crime in Ohio. Huff, 14 Ohio App.3d at 209, 470 N.E.2d

934. Further, the state has a legitimate interest in controlling the health hazards

posed by prostitution. See Colorado v. Mason, 642 P.2d 8, 12 (Colo.1982). And,

finally, the state has an interest in maintaining a decent society, and the

stemming of commercialized sexual solicitation is an acceptable means of

furthering this interest.     See United States v. Moses, 339 A.2d 46, 54

(D.C.App.1975).




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       {¶10}   In conclusion, because the solicitation statute reasonably relates to

the state’s interest in protecting public health, safety, morals and general welfare,

we hold that R.C. 2907.24(A) is constitutional.

       {¶11}   The single assignment of error is overruled.

                                                                Judgment affirmed.


DEWINE, J., concurs.
HENDON, P.J., concurs in judgment only.

Please note:
       The court has recorded its own entry this date.




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