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Victory in the Ohio Supreme Court in State v. Romage

Back in the Fall, Bridget Purdue Riddell of Riddell Law LLC argued in the Ohio Supreme Court on behalf of Appellee in the case of State v. Romage, Slip Opinion 2014-Ohio-783.  We are proud to announce that the decision was released today and the Court found in favor of our client.

The full decision can be found here.  Our firm successfully argued that the statute at issue is unconstitutional — and won at the trial court, Tenth District Court of Appeals, and now in the Ohio Supreme Court.

At issue is Ohio’s child-enticement statute, R.C. 2905.05(A).  We argued that the statute is unconstitutionally overbroad because it sweeps within its prohibitions a significant amount of innocent, constitutionally protected activity.   The Ohio Supreme Court agreed and struck the statute as unconstitutional.

Our client was charged with criminal child enticement after offering neighborhood kids a few quarters to help him move boxes into his apartment.    Before trial, we filed a motion to dismiss the complaint, challenging the statute as overbroad and unconstitutional.   The Tenth District Court of Appeals agreed, finding that R.C. 2905.05(A) “sweeps within its prohibitions a significant amount of constitutionally protected activity.”  10th Dist. Franklin No. 11AP-822, 2012-Ohio-3381, 974 N.E.2d 120, ¶ 14.    The State appealed and we proceeded to the Ohio Supreme Court on a certified conflict with a First District Court of Appeals case that had upheld the statute.

Among the many arguments raised, the State argued that the term “solicit” in R.C. 2905.05(A) should be narrowly construed.  In response, we argued that even without the word “solicit,” the statute still criminalizes innocent conduct.

The statute provides:

“No person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner, including entering into any vehicle or onto any vessel, whether or not the offender knows the age of the child, if both of the following apply:

(1) The actor does not have express or implied permission of the parent, guardian, or other legal custodian of the child in undertaking the activity.
(2) The actor is not a law enforcement officer, medic, firefighter, or other person who regularly provides emergency services, and is not an employee or agent of, or a volunteer acting under the direction of, any board of education, or the actor is any  of such persons, but, at the time the actor undertakes the activity,  the actor is not acting within the scope of the actor’s lawful duties  in that capacity.”

The statute was amended in July of 2013 to add subsection (C), which states: “No person, for any unlawful purpose other than, or in addition to, that proscribed by division (A) of this section, shall engage in any activity described in division (A) of this section.”   However, the language in R.C. 2905.05(A) — which was at issue in this case — remained unchanged.

In finding the statue unconstitutional, the Court noted the legitimate and compelling interest in protecting children from abduction.  But the Court explained that “a statute that defines criminal conduct should not include what is constitutionally protected  activity. Even though the state has a legitimate and compelling interest in  protecting children from abduction and lewd acts, a statute intended to promote legitimate goals that can be regularly and improperly applied to prohibit protected  expression and activity is unconstitutionally overbroad.”

The fatal flaw here was that the statute failed to require the intent to commit any unlawful act.  For example, “[t]here is no requirement that the offender be aggressive  toward the victim,” the Court explains.

Therefore, the statute could criminalize: (1) a primary-school coach offering to drive a team member home to retrieve a forgotten piece of practice equipment; (2) a parent at a community  facility offering to drive another’s child home so she does not have to walk;  (3) a  senior citizen offering a 13-year-old neighborhood child money to help with household chores; (4) a 14-year-old asking his 12-year-old friend to go for a bike ride. 

“Short of rewriting R.C. 2905.05(A), which is the province of the legislature rather than the court, we cannot construe the statute in such a way as to find it constitutional.”