{¶ 34} I would overrule Thompson's sole assignment of error, and affirm the judgment of the trial court.
{¶ 35} Thompson's offense involved some sort of taking sexual advantage of a minor female resulting in her becoming pregnant. The test for determining whether a condition of probation (now community control sanction) is appropriate is whether the condition: (1) is reasonably related to rehabilitating the offender; (2) has some relationship to the crime of which the offender was convicted; and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation. State v. Jones (1990), 49 Ohio St.3d 51. In this case, one of Thompson's community control sanctions was that he "Have no contact with persons under 18 years of age unless approved by Adult Probation." Thompson violated that sanction when he married a person under the age of 18, and thereafter began living with her, all without having sought the approval of, and without even notifying, the probation authority.
{¶ 36} Had the trial court, in its community control sanctions, imposed a blanket prohibition against any contact with a minor, or even with a specifically named minor, then I would agree that the sanction would have impermissibly infringed upon Thompson's right of association, like the blanket prohibition in State v. Jahnke, 148 Ohio App.3d 77,2002-Ohio-371, against that defendant's having any contact with his fiancee. That is not the sanction imposed in this case, however. The sanction in this case merely required the prior approval of the probation authority. Had Thompson sought that approval, citing his intention to seek to marry (apparently the minor he had impregnated) and the approval of her family, and been refused, I would probably be inclined to find that an abuse of discretion had occurred. That is not what happened in this case. Thompson neither informed the probation authority of his intentions, nor sought its approval. *Page 650
{¶ 37} To be sure, even the requirement that the probation authority be consulted constitutes some interference with Thompson's right to marry. But so do reasonable restrictions upon a sanctionee's right to travel out of state, or a sanctionee's right to associate with known criminals. Yet these may certainly be upheld as reasonable restrictions under appropriate circumstances.
{¶ 38} There does not seem to be any real dispute that the first two conditions set forth in State v. Jones, supra, are satisfied by the trial court's community control sanction in this case. In my view, the third condition is satisfied as well. Thompson's contact with minors is conduct that is "reasonably related to future criminality," since his conduct resulting in the imposition of sanctions arises from his inability to avoid taking sexual advantage of minors.
{¶ 39} I agree with the trial judge, who, in rejecting Thompson's argument that the State was seeking to punish him for having married, replied: "I'm not punishing you for getting married. I'm punishing you because you didn't have enough nerve to tell Mr. Tabler that you were seeing somebody you knew you weren't supposed to see by age category, and then he has to find out in the newspaper that you got a marriage license out to somebody and the whole unraveling here is the fact that you don't want to tell people what's going on."
{¶ 40} It was the responsibility of the probation authority to ensure that Thompson did not use inappropriate contacts with minors to take sexual advantage with other minors, or, for that matter, with the minor female he took advantage of in the case resulting in his community control sanction. Had Thompson forthrightly indicated his marital purpose in seeking again to be in contact with his victim, it may well be that the probation authority charged with protecting her would have permitted the contact, perhaps under some supervision. And if that permission had been refused, perhaps it would have constituted an abuse of discretion. Thompson did not comply with that requirement, which, in my view, was reasonably related to protecting minors from a repetition of his criminal conduct. As the trial judge noted, it was for that non-compliance that Thompson is now being punished, not the fact that Thompson's purpose was to seek to marry the minor. In my view, the punishment imposed, a 45-day jail term subject to work release, is not unreasonable in relation to his misconduct in failing to comply with the community control sanction requiring him to seek approval of the probation authority before having any contacts with minors.
{¶ 41} I would affirm the judgment of the trial court. *Page 651