[Cite as State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111.]
THE STATE OF OHIO, APPELLEE, v. DUNLAP, APPELLANT.
[Cite as State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111.]
Criminal law—Gross sexual imposition—Victim under 13—R.C. 2907.05(A)(4)—
Mens rea—Statute imposes strict liability on defendant in regard to
victim’s age—Mens rea for sexual-contact element of offense is purpose—
Indictment that tracks language of R.C. 2907.05(A)(4) is sufficient to give
defendant adequate notice of offense charged.
(No. 2009-0477—Submitted December 16, 2009—Decided August 23, 2011.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 91165,
2009-Ohio-134.
__________________
PFEIFER, J.
{¶ 1} In this case, we identify the mens rea requirement of R.C.
2907.05(A)(4), which sets forth the elements of gross sexual imposition involving
victims under the age of 13. We hold that the statute establishes strict liability as
to the defendant’s knowledge of the age of the victim and a mens rea of purpose
in regard to the sexual contact between the defendant and the victim. Further, in
regard to defendant-appellant’s sex-offender classification, we remand this case to
the trial court for an application of this court’s decision in State v. Williams, 129
Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108.
Factual and Procedural Background
{¶ 2} After a jury trial, defendant-appellant, Thomas Dunlap, was
convicted of two counts of gross sexual imposition involving victims under the
age of 13, in violation of R.C. 2907.05(A)(4), and one count of disseminating
obscene matter to juveniles, in violation of R.C. 2307.31(A)(1). The court
sentenced Dunlap to a total of two years in prison: two years on each count of
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gross sexual imposition and 16 months on the obscenity count, to be served
concurrently. The court also found Dunlap to be a Tier III sex offender. Dunlap
appealed the R.C. 2907.05(A)(4) convictions and his sex-offender classification.
{¶ 3} The court of appeals affirmed Dunlap’s convictions, rejecting his
arguments that R.C. 2907.05(A)(4) requires a mens rea element of recklessness
and that the application of R.C. Chapter 2950, 2007 Am.Sub.S.B. No. 10 (“S.B.
10”), to offenses committed before its effective date violates the Ex Post Facto
Clause of the federal Constitution and the Retroactivity Clause of the Ohio
Constitution.
Sex-Offender Classification
{¶ 4} Dunlap had been indicted on July 26, 2007, on the charges upon
which he eventually was convicted. He was sentenced under S.B. 10 on March 4,
2008. Dunlap argues that the application of S.B. 10 to offenders whose crimes
occurred before its effective date of January 1, 2008, violates the Ex Post Facto
Clause of the United States Constitution and the Retroactivity Clause of the Ohio
Constitution.
{¶ 5} In regard to Dunlap’s sex-offender classification, this case was
originally held for a decision in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-
2424, 933 N.E.2d 753. However, having determined that this court’s decision in
Bodyke did not resolve the classification issue in Dunlap’s case, we subsequently
held this case for a decision in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-
3374, 952 N.E.2d 1108. In our recent decision in Williams, we held that S.B. 10,
“as applied to defendants who committed sex offenses prior to its enactment,
violates Section 28, Article II of the Ohio Constitution, which prohibits the
General Assembly from passing retroactive laws.” Id. at syllabus.
{¶ 6} We therefore reverse that portion of the court of appeals’ judgment
that upheld the application of S.B. 10 to Dunlap and remand this case to the trial
court for an application of Williams.
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January Term, 2011
R.C. 2907.05 Issues
{¶ 7} R.C. 2907.05(A)(4) states:
{¶ 8} “No person shall have sexual contact with another, not the spouse of
the offender; cause another, not the spouse of the offender, to have sexual contact
with the offender; or cause two or more other persons to have sexual contact when
any of the following applies:
{¶ 9} “ * * *
{¶ 10} “(4) The other person, or one of the other persons, is less than
thirteen years of age, whether or not the offender knows the age of that person.”
{¶ 11} Dunlap claims that the indictment failed to set forth the mens rea
for the R.C. 2907.05(A)(4) charges, specifically regarding the element of sexual
contact. The indictment for the R.C. 2907.05(A)(4) violation in Count 1 stated
that the defendant “had sexual contact with Jane Doe I, not his spouse, whose age
at the time of the said sexual contact was under 13 years, whether or not the
offender know [sic, knew] the age of Jane Doe I.” The indictment used similar
language in Count 3 for the alleged sexual contact with the other victim, Jane Doe
II.
{¶ 12} In the jury instructions regarding gross sexual imposition, the trial
court instructed the jury as to the element of “sexual contact,” as defined in R.C.
2907.01(B):
{¶ 13} “Sexual contact. Sexual contact means 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.”
{¶ 14} Dunlap concedes that R.C. 2907.05(A)(4) does not require the state
to prove any mens rea with regard to the defendant’s knowledge of the age of the
victim, i.e., that a defendant is strictly liable as to that element of a violation.
However, as to the element of sexual contact, Dunlap argues that the indictment
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should have set forth the mens rea of recklessness. He contends that the
indictment’s failure to include that mens rea coupled with the trial court’s failure
to instruct the jury on the culpable mens rea of recklessness constituted structural
error requiring reversal pursuant to State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-
1624, 885 N.E.2d 917 (“Colon I”), and State v. Colon, 119 Ohio St.3d 204, 2008-
Ohio-3749, 893 N.E.2d 169 (“Colon II”).
{¶ 15} Dunlap appealed his convictions to the Eighth District Court of
Appeals, which rejected his mens rea argument, holding that gross sexual
imposition involving a child under the age of 13 “is a strict liability offense and
requires no precise culpable state of mind. All that is required is a showing of the
proscribed sexual contact.”
{¶ 16} The cause is before this court upon the acceptance of a
discretionary appeal.
Law and Analysis
{¶ 17} During the pendency of Dunlap’s appeal, this court overruled
Colon I and overruled Colon II in part, holding that “when an indictment fails to
charge a mens rea element of the crime, but tracks the language of the criminal
statute describing the offense, the indictment provides the defendant with
adequate notice of the charges against him and is, therefore, not defective.” State
v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 45. Dunlap’s
indictment tracked the language of R.C. 2907.05(A)(4), so, pursuant to Horner,
even if the indictment failed to charge a mens rea, it was not defective. However,
Horner is not dispositive here, because Dunlap further alleges that the jury
instructions in this case should have included a mens rea of recklessness. We thus
address the applicable mens rea of R.C. 2907.05(A)(4).
{¶ 18} There is no question that the victim’s age is a strict-liability
element of an R.C. 2907.05(A)(4) violation. The statute prohibits sexual contact
with a person less than 13 years of age “whether or not the offender knows the
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age of that person.” But the fact that defendants are held strictly liable for that
element of a violation does not mean that R.C. 2907.05(A)(4) lacks a mens rea
requirement as to all of its elements. The state concedes that the appellate court
erred in finding that R.C. 2907.05(A)(4) requires no culpable state of mind.
{¶ 19} The parties agree that the “sexual contact” element of R.C.
2907.05(A)(4) has a mens rea separate from the rest of the statute. “Sexual
contact” is defined in R.C. 2907.01(B):
{¶ 20} “ ‘Sexual contact’ means 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.”
{¶ 21} Dunlap argues that there is no stated mens rea for the “any
touching” language in the first phrase of R.C. 2907.01(B) and that the default
mens rea should therefore be recklessness, pursuant to R.C. 2901.21(B), which
states that “[w]hen the section [defining an offense] neither specifies culpability
nor plainly indicates a purpose to impose strict liability, recklessness is sufficient
culpability to commit the offense.” Thus, Dunlap would have this court interpret
R.C. 2907.01(B) as defining sexual contact as “any reckless touching of an
erogenous zone of another * * * for the purpose of sexually arousing or gratifying
either person.” (Emphasis added.) Dunlap argues that the phrase “for the purpose
of sexually arousing either person” refers to the motive behind the touching rather
than the mens rea behind the act of touching.
{¶ 22} The state, on the other hand, argues that R.C. 2907.01(B) does
contain an expressly stated mens rea, i.e., purpose. The state asserts that R.C.
2907.01(B) provides the mental state by defining “sexual contact” as touching
“for the purpose” of sexual arousal.
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{¶ 23} We agree with the state that the mens rea of purpose applies to the
whole of R.C. 2907.01(B), and thus to the sexual-contact element of R.C.
2907.05(A)(4). R.C. 2901.22(A) defines the mens rea of purpose:
{¶ 24} “A person acts purposely when it is his specific intention to cause a
certain result, or, when the gist of the offense is a prohibition against conduct of a
certain nature, regardless of what the offender intends to accomplish thereby, it is
his specific intention to engage in conduct of that nature.”
{¶ 25} Through the definition of sexual contact in R.C. 2907.01(B), gross
sexual imposition as described in R.C. 2907.05(A)(4) requires proof of touching
“for the purpose of sexually arousing or gratifying either person.” (Emphasis
added.) The statute requires a specific intent behind the touching – the touching
must be intended to achieve sexual arousal or gratification. Since there is a
specific intent motivating the touching, it follows that the act of touching must be
intentional.
{¶ 26} Grammatically, the phrase “for the purpose of sexually arousing or
gratifying either person” modifies “any touching of an erogenous zone of
another.” R.C. 2907.01(B) consists of one simple sentence with no subordinate
clauses. Thus, we need not apply the holding from Horner that “[w]hen the
General Assembly includes a mens rea element in one discrete clause, subsection,
or division of a statute but not in another discrete clause, subsection, or division of
that statute, courts must apply the analysis in State v. Wac (1981), 68 Ohio St.2d
84, 22 O.O.3d 299, 428 N.E.2d 428, and State v. Maxwell, 95 Ohio St.3d 254,
2002-Ohio-2121, 767 N.E.2d 242, to determine the mental state where none is
specified.” Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, at
paragraph two of the syllabus. Here, there is only one clause containing one mens
rea. We thus conclude that the applicable mens rea of sexual contact, as defined
in R.C. 2907.01(B), is purpose.
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{¶ 27} The indictment here tracked the language of the charged offenses
as set forth in R.C. 2907.05(A)(4), and the trial court properly instructed the jury
on the element of sexual contact as set forth in R.C. 2907.01(B). Thus, the trial
court did not err.
Conclusion
{¶ 28} Although the court of appeals affirmed the judgment of the trial
court, it erred in finding that R.C. 2907.05(A)(4) “requires no precise culpable
state of mind.” We hold instead that the element of sexual contact in an R.C.
2907.05(A)(4) violation requires a mens rea of purpose. However, since we
conclude that the indictment and jury instructions in this case sufficiently set forth
the required mens rea, we affirm that portion of the court of appeals’ judgment.
We reverse that part of the judgment that applied S.B. 10 to Dunlap and remand
the case to the trial court for reclassification of Dunlap’s sex-offender status in
light of our decision in Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952
N.E.2d 1108.
Judgment affirmed in part
and reversed in part,
and cause remanded.
O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,
and CUPP, JJ., concur.
MCGEE BROWN, J., not participating.
__________________
William D. Mason, Cuyahoga County Prosecuting Attorney, and T. Allan
Regas, Assistant Prosecuting Attorney, for appellee.
Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin,
Assistant Public Defender, for appellant.
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