State v. Maxson ( 1978 )

William B. Brown, J.

The sole issue presented by the instant cause is whether a person who has passed his or her fifteenth birthday but has not yet reached his or her sixteenth birthday is “over fifteen years of age” for the purposes of R. C. 2907.04.

R. C. 2907.04 provides, in pertinent part:

“(A) No person, eighteen years of age or older, shall engage in sexual conduct with another, not the spouse of the offender, when the offender knows such other person is over twelve but not over fifteen years of age * * *.” (Emphasis added.)

Appellee argues that a person is not “over fifteen years of age” for purposes of E. C. 2907.04, until he or she reaches their sixteenth birthday. We are not persuaded by appellee’s argument because it is based on the fiction that one grows no older during the twelve-month interval from one birthday to the next. Common experience dictates otherwise. A child who is one-year old on its first birthday and over one-year old after that birthday will be “over fifteen years of age” after he passes his fifteenth birthday. Moreover, appellee’s interpretation of the phrase “over fifteen years of age” conflicts with the holdings of a majority of other jurisdictions — see State v. Linn (Alaska 1961), 363 P. 2d 361, 363; Farrow v. State (Del. 1969), 258 A. 2d 276, 277; see, also, Annotation, 73 A. L. E. 2d 874, 877,—and with the legislative mandate that criminal statutes be construed liberally in favor of the defendant (R. C. 2901.04 [A]).

We, therefore, hold that an individual who has passed his or her fifteenth birthday but has not reached his or her sixteenth birthday is “over fifteen years of age” for purposes of E. C. 2907.04. The judgment of the Court of Appeals is reversed.

Judgment reversed.

HbRbert, Celebrezze, P. Brown, Sweeney and Locher, JJ., concur.