State v. Johnson , 2023 Ohio 3185 ( 2023 )

[Cite as State v. Johnson, 2023-Ohio-3185.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2023-CA-5
:
v. : Trial Court Case No. 22 CRB01109
:
MARCUS S. JOHNSON : (Criminal Appeal from Municipal Court)
:
Appellant :
:
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OPINION
Rendered on September 8, 2023
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RICHARD L. KAPLAN, Attorney for Appellant
DANIELLE E. SOLLARS, Attorney for Appellee
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WELBAUM, P.J.
{¶ 1} Appellant, Marcus S. Johnson, appeals from his conviction for criminal child
enticement in violation of R.C. 2905.05(A) following a bench trial in the Xenia Municipal
Court. In support of his appeal, Johnson contends that his conviction should be vacated
because the Supreme Court of Ohio declared R.C. 2905.05(A) unconstitutional in 2014.
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The State agrees with Johnson and concedes error. Because R.C. 2905.05(A) was
declared unconstitutional in State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7
N.E.3d 1156, Johnson’s conviction for criminal child enticement under that statute will be
vacated.
Facts and Course of Proceedings
{¶ 2} On October 14, 2022, Johnson was charged by complaint with one count of
criminal child enticement in violation of R.C. 2905.05(A). The charge stemmed from an
allegation that on October 4, 2022, Johnson stopped his truck in an alleyway where a 13-
year-old boy was playing basketball and aggressively told the boy: “Come here, get in the
truck!” Johnson pled not guilty to the charge and the matter proceeded to a bench trial.
Following the bench trial, the trial court found Johnson guilty of the charged offense.
After reviewing a presentence investigation report, the trial court sentenced Johnson to
120 days in jail with 69 days of jail-time credit. The trial court also ordered Johnson to
pay court costs and a $1,000 fine with $500 suspended.
{¶ 3} Johnson now appeals from his conviction and raises two assignments of
error for this court’s review.
First Assignment of Error
{¶ 4} Under his first assignment of error, Johnson contends that the criminal child
enticement statute under which he was convicted, i.e., R.C. 2905.05(A), was declared
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unconstitutional by the Supreme Court of Ohio in Romage, 138 Ohio St.3d 390, 2014-
Ohio-783, 7 N.E.3d 1156. As a result, Johnson asserts that his conviction for that
offense should be vacated. The State agrees with Johnson’s argument and concedes
error.
{¶ 5} As a preliminary matter, we note that Johnson did not challenge the
constitutionality of R.C. 2905.05(A) in the trial court. “Failure to raise at the trial court
level the issue of the constitutionality of a statute or its applications, which issue is
apparent at the time of trial, constitutes a waiver of such issue and a deviation from this
state’s orderly procedure, and therefore need not be heard for the first time on appeal.”
State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. “Nonetheless,
Crim.R. 52(B) allows us to recognize ‘plain errors or defects affecting substantial rights,’
although they have not been preserved at trial, in exceptional circumstances to prevent a
miscarriage of justice.” State v. Reynolds, 148 Ohio App.3d 578, 2002-Ohio-3811, 774
N.E.2d 347, ¶ 8 (2d Dist.), quoting Crim.R. 52(B).
{¶ 6} “The test for plain error is whether the result of the trial would have clearly
been otherwise had the error not occurred.” Id. If the statute under which a person was
convicted had been deemed unconstitutional, then the outcome of trial would clearly have
been different if the issue had been raised, because no conviction could be predicated
upon a violation of the statute. Id. Therefore, under that circumstance, plain error would
be established.
{¶ 7} Upon review, we find that Johnson and the State correctly assert that the
Supreme Court of Ohio in Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156,
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declared section (A) of the criminal child enticement statute unconstitutional.
Specifically, the court in Romage held that “R.C. 2905.05(A) is unconstitutionally
overbroad because it sweeps within its prohibitions a significant amount of constitutionally
protected activity.” Id. at syllabus. Because a conviction cannot be predicated on the
violation of an unconstitutional statute, we find that Johnson has established plain error
that warrants the vacation of his conviction.
{¶ 8} Johnson’s first assignment of error is sustained.
Second Assignment of Error
{¶ 9} Under his second assignment of error, Johnson alternatively argues that if
this court finds R.C. 2905.05(A) constitutional on its face, the statute was nevertheless
unconstitutionally overbroad as applied to his statement: “Come here, get in the truck!”
Because we have already determined that R.C. 2905.05(A) is unconstitutional as
declared by Romage, we need not address Johnson’s second assignment of error.
{¶ 10} Johnson’s second assignment of error is overruled as moot.
Conclusion
{¶ 11} Having sustained Johnson’s sole assignment of error, the judgment of the
trial court convicting Johnson of criminal child enticement under R.C. 2905.05(A) is
vacated.
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LEWIS, J. and HUFFMAN, J., concur.