Summary
In Hayes, a defendant charged with raping a child moved to dismiss the indictment, arguing that the "in loco parentis" language of R.C. 2907.03(A)(5) was unconstitutionally vague.
Summary of this case from State v. CraigOpinion
No. 86-65
Decided June 30, 1986.
Criminal law — Dismissal of part of indictment — State may appeal pursuant to R.C. 2945.67(A).
APPEAL from the Court of Appeals for Hamilton County.
Appellee, Melvin Hayes, was indicted by the Hamilton County Grand Jury on September 27, 1984. The indictment specifically charged that appellee "engaged in sexual conduct with Crystal Ellison, a person who was not Melvin Hayes' spouse at the time and at the time the said Melvin Hayes was the guardian or the custodian or the stepparent or a person standing in the place of a parent to Crystal Ellison, in violation of Section 2907.03 of the Revised Code * * *." R.C. 2907.03(A)(5) provides in pertinent part:
"(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."
On October 10, 1984, appellee requested a bill of particulars pursuant to Crim. R. 7(E). Appellant responded with a bill which stated in pertinent part: "* * * Furthermore, at the time of the aforementioned sexual conduct, the defendant was a person standing in the place of a parent to Crystal Ellison." Appellant alleged that Crystal Ellison's parents died and that she moved in with her aunt. The aunt then married appellee, and he moved into the aunt's house. Thus, it was appellant's theory that at the time of the sexual conduct, appellee was standing in the place of a parent living in the household. Accordingly, appellant continued to proceed solely on the "in loco parentis" portion of R.C. 2907.03(A)(5).
On November 29, 1984, appellee filed a motion to dismiss, alleging that the portion of R.C. 2907.03(A)(5) which contains the phrase "in loco parentis" was unconstitutionally vague. On December 21, 1984, in a hearing on the motion, the trial court agreed with appellee that the statute, at least in its use of the Latin phrase "in loco parentis," was unconstitutionally vague. The trial court refused to dismiss the indictment, however, since appellee might also qualify as the guardian, custodian or stepparent of the alleged victim. On January 22, 1985, at a continuance of the hearing, appellant essentially argued that by refusing to dismiss the entire indictment, the court had effectively prevented appellant from proceeding to trial. The court, however, set a trial date for February 25, 1985 and entered the following ruling:
"This matter having come on for hearing by this Court on the Motion of the defendant to Dismiss the Indictment and Bill of Particulars and the Court being fully advised in the matter does hereby grant said motion only to the extent that it finds:
"The portion of O.R.C. 2907.03(A)(5) which uses the Latin words `loco parentis' is in violation of the mandates of the Constitution of the Constitution of the United States [ sic] and the Constitution of the State of Ohio as being void for vagueness and is therefore unconstitutional.
"In all other respects, said motion is denied."
Appellant then appealed this ruling to the court of appeals. The court of appeals held that there was no final order from which appellant could appeal and, consequently, dismissed the appeal for want of jurisdiction.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Arthur M. Ney, Jr., prosecuting attorney, and William E. Breyer, for appellant.
Croswell Adams Co., L.P.A., R. Scott Croswell and Elizabeth E. Agar, for appellee.
The issue presented in this action is whether the court of appeals has jurisdiction to hear the state's appeal of the trial court's ruling. We hold that the court of appeals does have jurisdiction to hear the state's appeal and, accordingly, reverse the judgment of the court of appeals.
Section 3(B)( 2), Article IV of the Ohio Constitution, R.C. 2953.02 and App. R. 3(A) and 4(B), when properly invoked, provide the courts of appeals with jurisdiction in criminal matters. Section 3(B)(2), Article IV, provides in pertinent part:
App. R. 3(A) provides in pertinent part:
"(A) * * * An appeal as of right shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4. * * *"
App. R. 4 provides in pertinent part:
"(B) * * * In an appeal by the prosecution, the notice of appeal shall be filed in the trial court within thirty days of the date of the entry of the judgment or order appealed from. * * *"
"Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within their district. * * *"
R.C. 2953.02 provides in relevant part: "In a criminal case, * * * the judgment or final order of a court of record inferior to the court of appeals may be reviewed in the court of appeals. * * *"
R.C. 2945.67(A) provides the state with its right of appeal in this action. That section states: "A prosecuting attorney, village solicitor, city director of law, or the attorney general may appeal as a matter or [of] right any decision of a trial court in a criminal case, or any decision of a juvenile court in a delinquency case, which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections 2953.21 to 2953.24 of the Revised Code, and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case or of the juvenile court in a delinquency case." (Emphasis added.)
This language allows the state a direct appeal whenever the trial court grants a motion to dismiss all, or any part of, an indictment. In the case sub judice, the trial court ruled that the "in loco parentis" language of R.C. 2907.03(A)(5) was unconstitutional, effectively dismissing that part of the indictment. Thus, the order of the trial court falls squarely within R.C. 2945.67(A).
Based on the foregoing, we hold that the court of appeals does have jurisdiction to hear the state's appeal of the trial court's ruling.
Accordingly, the decision of the court of appeals is reversed and the cause is remanded to that court for further proceedings.
We decline to address the issue of the constitutionality of the phrase "in loco parentis" contained in R.C. 2907.03(A)(5) at this time, as it was not reviewed by the court of appeals below.
Judgment reversed and cause remanded.
LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.
CELEBREZZE, C.J., concurs in judgment only.
SWEENEY, J., dissents.
Because I believe that the trial court's action does not present an appealable order pursuant to R.C. 2945.67(A), I must respectfully dissent from the majority's determination to the contrary.
As noted by the court of appeals below, the indictment handed down in the cause sub judice was on one count of sexual battery. In my opinion, the effect of the trial judge's ruling is not to dismiss the one charge of sexual battery, but only to strike certain language in a manner that does not otherwise facially vitiate this charge. Even without the stricken phrase, I believe that the indictment herein contains sufficient language for the prosecution to proceed with its case-in-chief against defendant.
Although R.C. 2945.67(A) may appear to allow the immediate review granted by the majority opinion herein, a careful reading of that statute along with the indictment in issue reveals that the statute does not encompass situations, such as the instant cause, where the prosecution can readily proceed on a legally sufficient indictment.
Accordingly, I would affirm the judgment of the court of appeals.