[Cite as State v. Blair, 2013-Ohio-3477.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-P-0145
- vs - :
LARRY BLAIR, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2011 CR
0740.
Judgment: Reversed and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
George G. Keith, 135 Portage Trail, P.O. Box 374, Cuyahoga Falls, OH 44223 (For
Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Larry Blair, appeals his conviction for Sexual Battery
following the entry of a no contest plea. The issue before this court is whether a
defendant may be convicted of Sexual Battery against a stepchild after the dissolution
of the marriage that created the affinity by the death of the mother. For the following
reasons, we reverse and remand the decision of the court below.
{¶2} On November 29, 2011, the Portage County Grand Jury returned an
Indictment against Blair, charging him with two counts of Sexual Battery, felonies of the
third degree in violation of R.C. 2907.03(A)(5) and (B). Both counts provided:
{¶3} LARRY BLAIR on or about 25 JULY 2011 in the County of Portage
* * * did * * * engage in sexual conduct with T.J. not the spouse of
said LARRY BLAIR when said LARRY BLAIR was said T.J.’s
natural or adoptive parent or a stepparent, or guardian, or
custodian, or person in loco parentis of said T.J.
{¶4} On December 9, 2012, Blair was arraigned and entered a plea of not
guilty. The case was scheduled for trial on September 6, 2012.
{¶5} On September 6, 2012, counsel for Blair made an oral motion to dismiss
the Indictment on the grounds that Blair was not T.J.’s stepparent at the time of the
sexual conduct charged in the Indictment. Counsel argued that the stepparent
relationship between Blair and T.J. dissolved upon the death of T.J.’s mother and that,
at the time of the sexual conduct, T.J. was an adult and had completed high school.
{¶6} The trial court denied the motion to dismiss.
{¶7} Thereupon, Blair entered a plea of no contest to one count of Sexual
Battery; the State moved to dismiss the second count. The prosecutor read the
following stipulated facts into the record:
{¶8} That the victim in this case * * * was born on or about the 29th day
of December, 1992. That as an infant, she was adopted by
Rosemary Johnson, who became her mother. * * * [T]hat on or
about August 20, 22, 2002, Larry Blair and Rosemary Johnson
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became married and at that time, Larry Blair became stepfather to
T.J. * * * who * * * would have been a juvenile at the time they were
married. * * * Rosemary Johnson, the mother of T.J. and the wife
of Larry Blair, passed away from cancer on or about May 10, 2009.
* * * Rosemary Johnson had arranged for the two daughters, T.J.
and her other younger daughter, to go with another family member,
but that factually the daughters * * * continued to live with and
reside with Larry Blair, * * * the person they knew as their
stepfather. At that time, the alleged victim * * * was still a juvenile
and would have been approximately fifteen or sixteen years of age.
* * * [O]n or about December 29 of 2010 * * *, the alleged victim * *
* turned eighteen years of age and at that time she was living in
Streetsboro with Larry Blair and her younger sister. Both sides will
then stipulate, that while living in the home, on or about the 25th
day of July, 2011, * * * the Defendant, Larry Blair, engaged in
sexual conduct with T.J.
{¶9} The trial court found Blair guilty of Sexual Battery.
{¶10} On October 10, 2012, the trial court issued an Order and Journal Entry,
memorializing Blair’s sentence. The court sentenced Blair to a two-year term of
imprisonment (stayed pending appeal); imposed a fine of $300 plus costs; designated
him a Tier III Sex Offender; and advised him that he would be subject to a mandatory
five-year period of postrelease control.
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{¶11} On November 7, 2012, Blair filed a Notice of Appeal. On appeal, Blair
raises the following assignment of error:
{¶12} “[1.] The trial court erred in denying defendant’s motion to dismiss the
indictment.”
{¶13} “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,” including “[d]efenses and objections based on defects in the indictment.”
Crim.R. 12(C)(2). “A motion to dismiss an indictment tests the legal sufficiency of the
indictment, regardless of the quality or quantity of the evidence that may be introduced
by either the state or the defendant.” State ex rel. Steffen v. Judges of the Court of
Appeals for the First Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d
906, ¶ 34. “In conducting this pretrial review, courts may look to ‘evidence beyond the
face of the indictment,’” but “may not decide ‘what would be the general issue at trial.’”
State v. Palmer, 131 Ohio St.3d 278, 2012-Ohio-580, 964 N.E.2d 406, ¶ 22, quoting
State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 18.
{¶14} The sufficiency of an indictment is a legal question reviewed under a de
novo standard. State v. Thornsbury, 4th Dist. No. 12CA9, 2013-Ohio-1914, ¶ 6.
{¶15} In the present case, the language of the Indictment tracks the language of
the Sexual Battery statute, R.C. 2907.03(A)(5), and, therefore, is legally sufficient on its
face. State v. Jackson, 134 Ohio St.3d 184, 2012-Ohio-5561, 980 N.E.2d 1032, ¶ 14
(cases cited); Noble v. State, 22 Ohio St. 541 (1872), paragraph two of the syllabus
(“[a]n indictment for incest with one’s step-daughter sufficiently describes the
relationship of the parties, by alleging it to be that of step-father and step-daughter,
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without setting forth the marriage of the defendant to the mother, or the subsistence of
the marriage relation at the time of committing the crime”).
{¶16} The issue of whether Blair was in the position of T.J.’s stepparent was a
general issue to be determined at trial, based on the quality and/or quantity of the
evidence. Thus, that issue could not be properly addressed in a pre-trial motion to
dismiss. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, at ¶ 14-18.
{¶17} Blair’s challenge to the Indictment must also fail due to his no contest
plea.
{¶18} “The plea of no contest is not an admission of defendant’s guilt, but is an
admission of the truth of the facts alleged in the indictment, information, or complaint.”
Crim.R. 11(B)(2). “[W]here the indictment, information, or complaint contains sufficient
allegations to state a felony offense and the defendant pleads no contest, the court
must find the defendant guilty of the charged offense.” State v. Bird, 81 Ohio St.3d 582,
584, 692 N.E.2d 1013 (1998). “[B]y pleading no contest to the indictment,” a defendant
“is foreclosed from challenging the factual merits of the underlying charge.” Id. While
“the trial court * * * possesses discretion to determine whether the facts alleged in the
indictment, information, or complaint are sufficient to justify conviction of the offense
charged[,] * * * the defendant who pleads no contest waives the right to present
additional affirmative factual allegations to prove that he is not guilty of the charged
offense.” State ex rel. Stern v. Mascio, 75 Ohio St.3d 422, 423-424, 662 N.E.2d 370
(1996).
{¶19} Finally, we must consider whether the stipulation of facts presented as
part of the plea colloquy undermined the sufficiency of the Indictment.
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{¶20} Many appellate districts have recognized that the State is not required to
present a recitation of the facts underlying the indictment before a no contest plea is
accepted. State v. Kruger, 2nd Dist. No. 2005-CA-19, 2006-Ohio-2361, ¶ 2 (“the trial
court is not required, in accepting a plea of no contest to a felony, to elicit a recitation of
the circumstances of the alleged offense”); State v. Moore, 9th Dist. No. 21182, 2003-
Ohio-244, ¶ 8 (“[i]n felony cases where a defendant pleads no contest, the state is not
obligated to present evidence proving the defendant guilty beyond a reasonable doubt”);
State v. Kutz, 87 Ohio App.3d 329, 337, 622 N.E.2d 362 (6th Dist.1993) (“[t]he trial court
needs only to examine the facts alleged in the indictment to determine whether a
defendant is guilty of the crime charged”).
{¶21} It is similarly recognized, however, that, where the State presents a
statement of facts that is positively inconsistent with the existence of an essential
element of the offense charged in the indictment, a trial court errs by finding the
defendant guilty based on his no contest plea. State v. Wooldridge, 2nd Dist. No.
18086, 2000 Ohio App. LEXIS 4639, *6 (Oct. 6, 2000) (“although the omission of a
fundamental fact is permissible, the trial court may not find a defendant guilty based on
his no contest plea if the state’s statement of facts absolutely negates the existence of
an essential element of the offense”); State v. Cohen, 60 Ohio App.2d 182, 185, 396
N.E.2d 235 (1st Dist.1978) (“the trial court erred in proceeding to sentence on the
indicted charge under the no contest plea where the case against the defendant was
incontestably deficient in the absence of a material element of the offense charged”);
State v. Mullen, 191 Ohio App.3d 788, 2011-Ohio-37, 947 N.E.2d 762, ¶ 13-19 (3rd
Dist.) (cases cited).
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{¶22} Blair raises the argument that the parties’ stipulated facts are inconsistent
with the existence of a stepparent relationship with the victim: “the stepparent-stepchild
[relationship] terminated upon both the death of [Blair’s] wife and the emancipation of
the victim when she turned eighteen and graduated high school.” Reply Brief of
Appellant, at 4.
{¶23} Blair relies on the Ohio Supreme Court’s decision of State v. Lowe, 112
Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512. In Lowe, the Supreme Court
considered whether R.C. 2907.03(A)(5) was constitutional as applied to consensual
sexual conduct between a stepparent and an adult stepchild. The court held the statute
constitutional, but commented that it would not apply where the defendant “divorced his
wife and no longer was a stepparent to his wife’s daughter, [since] the stepparent-
stepchild relationship would be dissolved.” Id. at ¶ 26. Blair contends that the death of
his wife (the victim’s mother) is the equivalent of divorce and effectively ends the
stepparent-stepchild relationship.
{¶24} Blair’s argument must be sustained under the Ohio Supreme Court’s
decision of Noble v. State, 22 Ohio St. 541, which held: “The relation of step-father and
step-daughter, within the meaning of the statute against incest, does not exist after the
termination of the marriage relation between the step-father and the step-daughter’s
mother.” Id. at syllabus. “It is established law that the relation of step-father and step-
daughter, at least within the meaning of statutes against the crime of incest, terminates
with the death or divorce of the mother.” Id. at 544. We are bound by the Supreme
Court’s holding in Noble. State v. Brown, 47 Ohio St. 102, 23 N.E. 747, 749 (1890)
(“[t]he supposed hardship of the law is much mitigated by the circumstance that kinship
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by affinity of the husband and wife, respectively, with the family of the other terminates
with the dissolution of the marriage”).
{¶25} Accordingly, Blair’s sole assignment of error has merit.
{¶26} For the foregoing reasons, Blair’s conviction for Sexual Battery is reversed
and this matter is remanded for further proceedings consistent with this opinion. Costs
to be taxed against the appellee.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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