IN THE COMMON PLEAS COURT OF LOGAN COUNTY, OHIO

                                    GENERAL DIVISION

 

STATE OF OHIO,  Plaintiff,

 

            vs.                                                                               Case No.  CR 06 01 0018

 

JON C STOUT,  Defendant.

 

                                    *                       *                       *                       *

 

JUDGMENT ENTRY GRANTING DEFENDANT’S MOTION TO

DISMISS COUNTS TWO, FIVE AND SIX

 

            This cause comes before the Court upon a pretrial motion filed by the Defendant to dismiss counts two, five and six of the indictment.  Count two is a R.C. 2919.22(A) first degree misdemeanor charge of Endangering Children.  Counts five and six are third degree felony charges under R.C. 2907.03(A)(5) which has been called “Ohio’s criminal incest statute”.  State v. Noggle (1993), 67 Ohio St.3d 31 at 33.  The Defendant is also charged with one count of public indecency, a forth degree misdemeanor, interference with custody, a first degree misdemeanor and contributing to the unruliness or delinquency of a child, a first degree misdemeanor.  The motion to dismiss was filed February 27, 2006.  By Judgment Entry of February 28, 2006, the State was granted leave to file a responsive pleading on or before March 20, 2006.  Plaintiff was granted leave to file a response on or before April 10, 2006.  Memorandum have been filed per that schedule.

            A motion to dismiss in criminal procedure only tests the sufficiency of the indictment, State v. O’Neal (1996) 114 Ohio App.3d 335.  Generally, there is no summary judgment procedure in criminal law.  State v. Heebsh (1992) 85 Ohio App.3d 551. 

            In the three counts sought to be dismissed the indictment alleges that the Defendant was a person in loco parentis to the victim.  The Ohio Supreme Court has defined the phrase “person in loco parentis” as it is used in the sexual battery statute under which the Defendant is indicted in counts five and six.  In State v. Noggle, supra, the Ohio Supreme Court held in its syllabus:

1.      The phrase “person in loco parentis” in R.C. 2907.03(A)(5) applies to a person who has assumed the dominant parental role and is relied upon by the child for support. 

 

2.      Indictments based upon an alleged offender’s status as a person in loco parentis should at least state the very basic facts upon which that alleged status is based.

 

The indictment in this case ignores the unique pleading requirement established by the Supreme Court in Noggle.  The prosecution does disclose the facts upon which it relies in its amended bill of particulars.  Even if this pleading method satisfies the Noggle requirement, the facts alleged in the amended bill of particulars do not show that the Defendant “assumed the dominant parental role and is relied upon by the child for support”.

The Supreme Court, in the body of the Noggle decision further defined the term:

The term “in loco parentis” means “charged, factitiously, with a parent’s rights, duties, and responsibilities.”  Black’s law Dictionary (6 Ed. 1990) 787.  A person in loco parentis has assumed the same duties as a guardian or custodian, only not through a legal proceeding.  A “person in loco parentis” was grouped with guardians and custodians in the statute because they all have similar responsibilities.

 

The phrase “person in loco parentis” in R.C. 2907.03(A)(5) applies to a person who has assumed the dominant parental role and is relied upon by the child for support.  This statutory provision was not designed for teachers, coaches, scout leaders, or any other persons who might temporarily have some disciplinary control over a child.  Simply put, the statute applies to the people the child goes home to.

 

            Since the Noggle decision the legislature has in fact expanded the list of occupations whose members are forbidden to engage in sexual conduct with children temporarily under their disciplinary control.  That list now includes teachers, coaches, and scout leaders.  However, as of this moment and at the time of this alleged offense, the legislature has not expanded the list of occupations to include law enforcement officers who come into contact with minors during an investigation.

            For the reasons stated above the Court finds the motion to dismiss well taken.  It is therefore ORDERED, DECREED and ADJUDGED that the motion to dismiss be, and hereby is granted.  It is ORDERED that counts two, five and six of the indictment be, and hereby are DISMISSED.  The counts of public indecency, interference with custody and contributing to the unruliness or delinquency of a child have been assigned for a final pretrial May 31, 2006 at 1:00 pm and a jury trial commencing June 13, 2006 at 9:00 am and those counts remain in assignment.

 

                                                                                                __________________________

                                                                                                Mark S. O’Connor, Judge

 

cc:       Prosecutor

            GREGG R LEWIS