State v. Ford , 2021 Ohio 4608 ( 2021 )

[Cite as State v. Ford, 2021-Ohio-4608.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 110463
v. :
GEOFFREY M. FORD, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: December 30, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-649827-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
and Tasha L. Forchione, Assistant Prosecuting Attorney, for
appellant.
Edward R. La Rue, for appellee.
MICHELLE J. SHEEHAN, P.J.:
Plaintiff-appellant, the state of Ohio, appeals from the trial court’s
judgment dismissing two counts of gross sexual imposition upon defendant-
appellee Geoffrey M. Ford’s motion to dismiss. Ford’s motion to dismiss these two
counts of gross sexual imposition was predicated on his claim that the neck and the
hip of the male victim are not erogenous zones listed in R.C. 2907.01(B), the statute
that defines prohibited “sexual contact.” As we explain in the following, the state’s
indictment relating to these two counts sufficiently charged a criminal offense as
defined by the statute. We therefore reverse the trial court’s judgment and remand
the case for further proceedings consistent with this opinion.
Procedural Background
Ford was charged with five counts of gross sexual imposition
involving a minor under the age of 13 years. Counts 1 and 2 of the indictment
charged him with engaging in sexual contact involving the minor’s neck and hip,
respectively, sometime between June 1 and August 23, 2019. Count 3 charged him
with engaging in sexual contact involving the minor’s thigh and side of penis
between August 1 and August 23, 2019; Counts 4 and 5 charged him with engaging
in sexual contact involving the minor’s penis on separate occasions during that same
period of time.
Ford filed a motion to dismiss Counts 1 and 2 of the indictment
pursuant to Crim.R. 12(C).1 He argued that “this particular victim’s neck and hip are
1 Crim.R. 12(C) states, in pertinent part:
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. The following must be raised before trial:
not the victim’s erogenous zones as contemplated in R.C. 2907.01(B).” He asserted,
in the alternative, that R.C. 2907.01(B) is unconstitutional because it fails to put a
reasonable person on notice that the neck and hip are erogenous zones.
The state opposed the motion to dismiss, arguing that Ford’s
argument concerned sufficiency of the evidence, which would only be appropriate
in a motion for acquittal, not in a motion to dismiss the indictment.
The trial court summarily granted Ford’s motion to dismiss Counts 1
and 2 of the indictment. The judgment stated, in its entirety, “[d]efendant’s motion
to dismiss counts one and two of the indictment granted. Counts 1 and 2 are
dismissed with prejudice.”
The state now appeals, raising the following assignment of error:
The trial court erred in granting defendant’s motion to dismiss based
on the insufficiency of evidence as to an essential element of the
offense, when such a factual determination is properly decided at
trial.2
***
(2) Defenses and objections based on defects in the indictment,
information, or complaint (other than failure to show jurisdiction in the
court or to charge an offense, which objections shall be noticed by the court
at any time during the pendency of the proceeding)[.]
2 Within this assignment of error, the state also argues that the trial court erred by failing
to state on the record its findings of fact and the conclusions of law pursuant to
Crim.R. 48. Crim.R. 48(B) states:
(B) Dismissal by the court.
If the court over objection of the state dismisses an indictment, information, or
complaint, it shall state on the record its findings of fact and reasons for the
dismissal.
As an initial matter, the trial court’s judgment dismissing Counts 1 and
2 of the indictment is a final appealable order. State v. Hayes, 25 Ohio St.3d 173,
174-175, 495 N.E.2d 578 (1986) (R.C. 2945.67(A) allows the state to directly appeal
a trial court’s judgment “whenever the trial court grants a motion to dismiss all, or
any part of, an indictment.”).
Motion to Dismiss the Indictment
We first note that the state’s assignment of error mischaracterizes
Ford’s motion to dismiss as raising a sufficiency-of-the-evidence claim. Our review
of the motion to dismiss reflects Ford was challenging the sufficiency of the
indictment, not the sufficiency of the evidence — no evidence has been produced by
the state at this procedural juncture. Thus, the question we answer in this appeal
concerns whether Counts 1 and 2 of the indictment sufficiently charged an offense
under Ohio law.
‘“A motion to dismiss tests the sufficiency of the indictment, without
regard to the quantity or quality of evidence that may be produced at trial.’”
Cleveland v. Olivares, 197 Ohio App.3d 78, 2011-Ohio-5271, 966 N.E.2d 285, ¶ 8
(8th Dist.), quoting State v. Caldwell, 8th Dist. Cuyahoga No. 92219, 2009-Ohio-
4881, ¶ 3. ‘“A pretrial motion must not involve a determination of the sufficiency of
Pursuant to Crim.R. 48(B), a trial court has the power to sua sponte dismiss a criminal
case in the interest of justice. State v. Hollins, 8th Dist. Cuyahoga No. 103864, 2016-
Ohio-5521, ¶ 16, citing State v. Busch, 76 Ohio St.3d 613, 615, 669 N.E.2d 1125 (1996).
However, Crim.R. 48(B) does not apply here because the trial court in this case did not
sua sponte dismiss Counts 1 and 2 of the indictment but rather granted Ford’s Crim.R.
12(C) motion to dismiss these two counts.
the evidence to support the indictment. If the indictment is valid on its face, a
motion to dismiss should not be granted.”’ Id., quoting Caldwell at ¶ 3.
A reviewing court examines the face of the charging instrument to
determine its sufficiency. State v. Baker, 3d Dist. Seneca No. 13-20-12, 2021-Ohio-
1004, ¶ 18. Moreover, “[i]n determining whether an indictment is valid on its face,
the proper inquiry is whether the allegations contained in the indictment constitute
an offense under Ohio law.” State v. Egler, 3d Dist. Defiance No. 4-07-22, 2008-
Ohio-4053, ¶ 14. “‘If the allegations contained in the indictment constitute offenses
under Ohio criminal law, it is premature to determine, in advance of trial, whether
the state could satisfy its burden of proof with respect to those charges, and thus, a
motion to dismiss must be denied.’” State v. Troisi, 8th Dist. Cuyahoga Nos. 109871,
109874, 109875, and 109876, 2021-Ohio-2678, ¶ 9, quoting State v. Swanson, 11th
Dist. Ashtabula No. 2015-A-0006, 2015-Ohio-4027, ¶ 17.
We review the trial court’s decision to dismiss an indictment de novo,
which requires us to undertake an independent review without any deference to the
trial court’s determination. Id.Gross Sexual Imposition
Ford was charged in Counts 1 and 2 of the indictment with gross
sexual imposition involving sexual contact with a minor’s neck and hip, respectively,
in violation of R.C. 2907.05(A)(4). Count 1 of the indictment states that the
defendant “did have sexual contact, to wit: neck, with [the victim] 12/11/2007, not
his spouse, and the age of [the victim] 12/11/2007 at the time of said sexual contact
was under 13 years, to wit: DOB 12/11/2007.” Count 2 is identical except for the
specification of the hip.
The indictment tracks the language employed in R.C. 2907.05(A)(4),
which provides, in pertinent part: “No person shall have sexual contact with another,
* * * when * * * [t]he other person * * * is less than thirteen years of age * * *.”
R.C. 2907.01(B), in turn, defines “sexual contact” as “any touching of
an erogenous zone of another, including without limitation the thigh, genitals,
buttock, pubic region, or, if the person is a female, a breast, for the purpose of
sexually arousing or gratifying either person.” (Emphasis added.)
Ford claims Counts 1 and 2 of the indictment should be dismissed
because “the human male’s neck and hip are not erogenous zones” and therefore
these two counts failed to charge a criminal offense. He argues the statute requires
that the part of the body being touched has to be an erogenous zone and that the
touching is for the purpose of sexually arousing or gratifying either person.
While we appreciate Ford’s argument that the statute only prohibits
the touching of an erogenous zone — not just any part of the body — for the propose
of sexually arousing or gratifying either person, we disagree with his contention that
the statute does not contemplate the neck and hip of a male body as erogenous zones
for such purposes.
The Ohio Revised Code does not define the term “erogenous zone.”
However, by inserting the words “without limitation” in R.C. 2971.01(B), the
legislature intended that the body parts not traditionally viewed as erogenous zones
may be considered erogenous zones in some instances. State v. Miesse, 2d Dist.
Clark No. 99-CA-74, 2000 Ohio App. LEXIS 3719, 12-13 (Aug. 18, 2000). See also
State v. Greenwood, 10th Dist. Franklin No. 19AP-683, 2021-Ohio-921, ¶ 22; Core
v. State, 191 Ohio App.3d 651, 2010-Ohio-6292, 947 N.E.2d 250, ¶ 21 (10th Dist.).
As this court explained, the parts of the body specifically enumerated
are per se erogenous zones and the state is relieved of the burden to prove that these
body parts are erogenous zones. State v. Kleyman, 8th Dist. Cuyahoga No. 90817,
2008-Ohio-6656, ¶ 26, citing State v. Ackley, 120 Ohio Misc.2d 60, 2002-Ohio-
6002, 778 N.E.2d 676, ¶ 9 (C.P.). See also State v. Harris, 8th Dist. Cuyahoga No.
108377, 2020-Ohio-1497, ¶ 23.
For the parts of the body not traditionally considered erogenous
zones and not specifically listed in the statute, this court has adopted the definition
of an erogenous zone as “‘any part of the body of another, which the mind of the
offender or victim or a reasonable person would perceive as sexually arousing or
gratifying to either the offender or the victim.’” Kleyman, supra, at ¶ 27, quoting
Ackley, supra, at ¶ 16. Moreover, “‘[w]hether the touching or contact was performed
for the purposes of sexual arousal or gratification is a question of fact to be inferred
from the type, nature, and circumstances of the contact.’” State v. Solomon, 8th
Dist. Cuyahoga No. 109535, 2021-Ohio-940, ¶ 48, quoting In re A.L., 12th Dist.
Butler No. CA2005-12-520, 2006-Ohio-4329, ¶ 20.
Applying R.C. 2907.01(B), the courts have found the enumeration of
erogenous zones in R.C. 2907.01(B) to be non-exhaustive and consistently rejected
a defendant’s claim that a body part not listed in the statute cannot be an erogenous
zone. State v. Peddicord, 3d Dist. Henry No. 7-12-24, 2013-Ohio-3398, ¶ 16. See,
e.g., State v. Ball, 4th Dist. Hocking No. 07CA2, 2008-Ohio-337, ¶ 26 (while the
mouth is not specifically listed in R.C. 2907.01, it may, under the facts of a particular
case, be considered an erogenous zone); Greenwood, 10th Dist. Franklin No. 19AP-
683, 2021-Ohio-921, at ¶ 22 (shoulder); Miesse, 2d Dist. Clark No. 99-CA-74, 2000
Ohio App. LEXIS 3719 (stomach); State v. Watkins, 10th Dist. Franklin No. 92AP-
1546, 1993 Ohio App. LEXIS 2412 (May 4, 1993) (the rubbing of the back of the
victim’s leg was sexual contact); Solomon, supra (feet and toes); and In re M. H.,
9th Dist. Wayne No. 07CA0037, 2007-Ohio-7045, ¶ 8 (mouth). In State v. Stair,
12th Dist. Warren No. CA2001-03-017, 2002-Ohio-18, the court specifically rejected
a defendant’s claim that the hip could not be an erogenous zone because it is not one
of the body parts specified in the statute.
The state is not required to include the facts or circumstances
surrounding the touching for the indictment of gross sexual imposition to be
sufficient. See State v. Smith, 8th Dist. Cuyahoga No. 83007, 2004-Ohio-3619, ¶
24, quoting State v. Childs, 88 Ohio St.3d 194, 199, 2000-Ohio-298, 724 N.E.2d 781(“‘Generally, the requirements of an indictment may be met by reciting the language
of the criminal statute’”). In filing a motion to dismiss the two counts of gross sexual
imposition involving the victim’s neck and hip, Ford essentially asked the trial court
to dismiss these charges without affording the state an opportunity to produce
evidence regarding the manner and nature of the touching to prove that these body
parts can be perceived by the offender, the victim, or a reasonable person as sexually
arousing or gratifying and they were touched for such sexual purposes. While the
neck and hip of a male body may not be inherently sexual, the state should be
allowed to produce evidence regarding the circumstances and context of the
touching to prove these are erogenous zones touched for sexual arousal or
gratification purposes. Ford’s argument in support of a dismissal based on his claim
that the hip and neck of a male body is not an erogenous zone as a matter of law is
without merit.
The Sexual Contact Statute is Not Unconstitutionally Vague
Based on the foregoing analysis, we also find no merit to Ford’s claim
that R.C. 2907.01(B)(1) is unconstitutionally vague for failing to provide fair
warning or adequate notice of what conduct is prohibited under the statute.
“A criminal statute is void for vagueness under the Due Process
Clause of the Fourteenth Amendment if it fails to contain ascertainable standards of
guilt.” State v. Glover, 17 Ohio App.3d 256, 257, 479 N.E.2d 901 (8th Dist.1984),
citing State v. Young, 62 Ohio St.2d 370, 406 N.E.2d 499 (1980). As this court
further explained:
“The root of the vagueness doctrine is a rough idea of fairness. It is
not a principle designed to convert into a constitutional dilemma the
practical difficulties in drawing criminal statutes both general enough
to take into account a variety of human conduct and sufficiently
specific to provide fair warning that certain kinds of conduct are
prohibited.”
Id. at 257-258, quoting Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.22
584 (1972).
R.C. 2907.01(B) and 2907.05(A)(4) provide a defendant adequate
notice and fair warning that the touching of an erogenous zone — which includes
but is not limited to the five enumerated body parts — for the purpose of sexual
arousal or gratification is a prohibited criminal conduct. “A criminal statute is not
void for vagueness simply because it requires a person to conform to an imprecise
but comprehensible normative standard. A statute is vague because it specifies no
standard of conduct at all.” Glover, supra, at 258. The statute at issue here is
sufficiently specific to provide fair warning for what is a prohibited criminal conduct.
For the foregoing reasons, the state’s sole assignment of error is
sustained. We emphasize, however, that the burden remains with the state to
present sufficient evidence to prove beyond a reasonable doubt that the victim’s
neck and hip were erogenous zones and the touching of them was for purposes of
sexual arousal or gratification on the particular occasions. As we have explained,
the sufficiency of the evidence is an issue distinct from the sufficiency of the
indictment. Because Counts 1 and 2 of the indictment sufficiently charged an
offense prohibited by the statute, we reverse the trial court’s judgment dismissing
these counts.
This cause is reversed and remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE
LISA B. FORBES, J., and
EMANUELLA D. GROVES, J., CONCUR