[Cite as State v. Butler,
2012-Ohio-5022.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-11-13
v.
THOMAS L. BUTLER, OPINION
DEFENDANT-APPELLANT.
Appeal from Defiance County Common Pleas Court
Trial Court No. 10 CR 10724
Judgment Reversed and Cause Remanded
Date of Decision: October 29, 2012
APPEARANCES:
Terice A. Warncke for Appellant
Morris J. Murray and Russell R. Herman for Appellee
Case No. 4-11-13
WILLAMOWSKI, J.
{¶1} Defendant-appellant Thomas L. Butler (“Butler”) brings this appeal
from the judgment of the Court of Common Pleas of Defiance County finding him
guilty of four counts of sexual battery and sentencing him to a total of sixteen
years in prison. For the reasons set forth below, the judgment is reversed.
{¶2} ALC was born on October 15, 1981, to her biological mother CJW.
When ALC was around five years old, she was removed from the home and
placed in foster care. Eventually, CJW’s parental rights were legally terminated
and ALC was adopted by a new family. Due to abuse in the adoptive home, ALC
was returned to the custody of the State. As part of her caseplan, she was
permitted to visit with her biological mother, whose parental rights to ALC had
been previously legally terminated. CJW was then married to Butler.
{¶3} ALC had frequent scheduled visits with CJW. However, she also took
it upon herself to arrange unscheduled visits to CJW’s home, frequently when
CJW was not home and only Butler was present.1 Eventually, her relationship
with Butler became sexual. Once she turned eighteen, ALC moved into the home
with Butler and CJW. Butler provided ALC with marijuana. He also gave her
money for a tongue piercing and signed the parental consent form. CJW joined in
1
ALC’s foster parents were unaware that ALC was at CJW’s home, instead thinking she was with friends
after school.
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the sexual activities with Butler and ALC. In time, Butler and CJW separated and
ALC no longer lived with him.
{¶4} Several years later, Lieutenant Cliff Vandermark (“Vandermark”) was
investigating an unrelated claim of sexual molestation. Vandermark learned then
of the relationship between Butler and ALC back in the late 1990’s. When
questioned by Vandermark, Butler admitted to the sexual relationship.
{¶5} In January of 2010, the Defiance County Grand Jury indicted Butler
on one count of rape in violation of R.C. 2907.02(A)(2), a felony of the first
degree, and four counts of sexual battery in violation of R.C. 2907.03(A)(5),
felonies of the third degree. All of the offenses were alleged to have occurred
between November 1, 1997 and October 14, 1999. Butler entered pleas of not
guilty to all of the charges. A jury trial was held on August 23-24, 2010. At the
conclusion of the trial, the jury was unable to reach a verdict as to the rape charge,
but found Butler guilty of the remaining four sexual battery charges. On
September 7, 2010, Butler was sentenced to four years in prison on each charge
with the sentences to be served consecutively for a total prison sentence of sixteen
years. Butler appeals from this judgment and raises the following assignments of
error.
First Assignment of Error
[Butler] was denied his constitutionally guaranteed right to
effective assistance of counsel.
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Second Assignment of Error
The trial court committed reversible error by overruling
[Butler’s] motion for acquittal after the State’s case in chief
because [Butler] was not in loco parentis under State v. Noggle,
and the indictment was insufficient as a matter of law regarding
the status of in loco parentis.
Third Assignment of Error
The trial court committed reversible error by instructing the
jury that it was not necessary for the State to prove the exact
dates of the offenses but merely a date reasonably near the date
claimed and by failing to provide an adequate instruction of the
meaning of in loco parentis under Noggle.
Fourth Assignment of Error
The State failed to provide sufficient evidence to sustain the
convictions against [Butler].
Fifth Assignment of Error
The verdicts in this case were against the manifest weight of the
evidence and should be reversed.
Sixth Assignment of Error
[Butler] was sentenced contrary to law because the seriousness
factor considered by the court was already inherent in the
subsection of the statute of which he was convicted.
In the interest of clarity, the assignments of error will be addressed out of order.
{¶6} In the second assignment of error, Butler claims that the trial court
erred in denying his motion for acquittal pursuant to Criminal Rule 29 because
there was insufficient evidence to prove that he was acting in loco parentis. He
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also claims that there were issues with the language of the indictment. When
determining whether there is sufficient evidence to support a conviction, “[t]he
relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d
259, 574 (1991), ¶ 2 of the syllabus.
{¶7} The Ohio Supreme Court has previously defined in loco parentis as “a
person who has assumed the dominant parental role and is relied upon by the child
for support.” State v. Noggle, 67 Ohio St.3d 31 (1993). The court went further
and added that the person would have “assumed the same duties as a guardian or
custodian, only not through a legal proceeding.”
Id. at 33.
{¶8} This court has recently addressed what is necessary for a person to be
acting in loco parentis.
Whether a person stands in loco parentis to a child is a question
of fact. State v. Caton, 137 Ohio App.3d 742, 750,
739 N.E.2d
1176 (1st Dist.2000). “It is well settled that an appellate court
will not reverse a trial court's finding of fact based on
insufficient evidence where the finding is supported by some
competent, credible evidence.” Id. The evidence must be viewed
“in the light most favorable to the prosecution.” Id., citing State
v. Martin, 20 Ohio App.3d 172,
485 N.E.2d 717 (1st Dist.1983).
According to the Supreme Court of Ohio, in loco parentis means
“ ‘charged, factitiously, with a parent's rights, duties, and
responsibilities.’ “ Noggle, at 33, 615 N.E.2d 1040, quoting
Black's Law Dictionary 787 (6 Ed.1990). As previously stated, a
person stands in loco parentis to a child when he “has assumed
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the dominant parental role and is relied upon by the child for
support.” Id. The term applies to a person who has “put himself
in the situation of a lawful parent assuming the obligations
incident to the parental relation, without going through the
formalities necessary to a legal adoption.” Evans v. Ohio State
Univ., 112 Ohio App.3d 724, 736,
680 N.E.2d 161 (10th
Dist.1996).
State v. Knepley, 3d Dist. No. 7-11-02, 2012-Ohio-406, ¶ 15-16. In Knepley, the
evidence showed that Knepley lived with the child’s mother, he put the child to
bed by rocking her to sleep, provided financial support, and fed the child.
Knepley had been seen to make the child bottles, change her diapers, and care for
her when she was ill. Knepley even prevented the biological father from visiting
with the child. Based upon this evidence, the trial court and this court concluded
that Knepley had provided financial support and physical care for the child and
was thus acting in loco parentis
{¶9} Here, evidence was provided that Butler on a couple of occasions
cooked food while she was there and she ate. Butler also gave ALC some money.
He also signed a permission slip for her to get her tongue pierced. However, ALC
testified that Butler provided her with marijuana and many of the things given to
her by Butler were given in an effort to persuade her to engage in sexual activities
with him. CJW testified that ALC told her Butler was bribing her to engage in
sexual intercourse with him. This type of “support” was de minimus in nature and
was less support than bribery. At that time, there was no legal relationship
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between any of the parties. ALC was in the custody of the State and it was
responsible for her support. ALC admitted that she was at Butler’s home without
the knowledge or permission of her foster parents most of the time. The visits
with CJW were limited at the beginning and after it was learned that Butler
provided ALC with marijuana, they were supervised. Unlike the defendant in
Knepley, Butler was not acting like a parent. Providing bribes of drugs and cash in
exchange for sex is not acting like a parent, but rather is the exact opposite of how
a parent should be acting. Butler was not responsible for the care or well-being of
ALC. He did not “put himself in the situation of a lawful parent assuming the
obligations incident to the parental relation, without going through the formalities
necessary to a legal adoption.” Knepley, at ¶16. ALC was not relying upon Butler
for support. Thus, the evidence does not support a finding that Butler was acting
in loco parentis at the time he engaged in sexual conduct with a minor.2 Having
found that the evidence was insufficient to support a conviction for acting in loco
parentis, this court need not address the argument concerning the language of the
indictment. The second assignment of error is sustained.
2
The dissent claims that the evidence was sufficient based upon the fact that ALC was at Butler’s home
when he was home alone and that she is the biological daughter of Butler’s wife at that time. However, the
wife’s parental rights had been terminated and ALC was adopted by another family. Thus at that time,
there was no legal relationship between ALC and the wife. They were legal strangers under the law.
Additionally, ALC may have been at the home, but the testimony was that she there without either the
permission or the knowledge of her foster parents. She had told them she was going to the home of various
friends and was sneaking over to Butler’s home.
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{¶10} The fourth assignment of error is similar to the second in that it
argues that the evidence was insufficient to prove that Butler committed the sexual
battery while acting in loco parentis.
Sufficiency of the evidence is a test of adequacy used to
“determine whether the case may go to the jury or whether the
evidence is legally sufficient to support the jury verdict as a
matter of law.” … A conviction based on insufficient evidence
constitutes a denial of due process, and the defendant may not be
recharged for the offense. … In reviewing a claim under the
sufficiency of the evidence standard, an appellate court must
determine “whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a
reasonable doubt.” …
State v. Alvarado, 3d Dist. No. 12-07-14, 2008-Ohio-4411, ¶23 (citations omitted).
For the reasons set forth above in the analysis of the second assignment of error,
the fourth assignment of error is sustained.
{¶11} Having found error prejudicial to Butler in the second and fourth
assignments of error, the remaining assignments of error are moot and need not be
addressed.
{¶12} The judgment of the Court of Common Pleas of Defiance County is
reversed and the matter is remanded for further proceedings consistent with this
opinion.
Judgment Reversed and
Cause Remanded
ROGERS, J., concurs.
/jlr
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PRESTON, J., Dissents.
{¶13} Since the majority opinion minimizes the evidence presented at trial,
I must respectfully dissent.
{¶14} In his second and fourth assignments of error, Butler argues that the
State failed to present sufficient evidence demonstrating he was a “person in loco
parentis,” as required under R.C. 2907.03(A)(5). Viewing the evidence in a light
most favorable to the prosecution, I would conclude that the State presented
sufficient evidence on this element.
{¶15} When determining whether a person is acting in loco parentis, an
appellate court should consider the following factors:
(1) the person is charged with a parent’s rights and responsibilities;
(2) the person has assumed the same duties as a guardian or
custodian; (3) the person has assumed a dominant parental role; (4)
the child relies upon the person for support; (5) the child “goes
home” to the person; (6) the person’s relationship with the child is
close, supportive, and protective; (7) the person has the intention of
acting as a parent, which is shown by the acts, conduct, and
declaration of the person; (8) the person intentionally assumes the
obligations incidental to the parental relationship; and (9) the person
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is the primary caretaker for the child while the biological parent is
absent due to, for example, employment
State v. Abubakar, 10th Dist. No. 11AP-440, 2011-Ohio-6299, ¶ 13.
{¶18} Butler was married to and living with the victim’s biological mother.
(Aug. 23, 2010 Tr. at 153). The victim testified that she considered Butler to be
her “stepdad.” (Id. at 154). The victim was at Butler’s home three days during the
school week, often leaving directly from school to come to Butler’s home, and,
about a month or two after reconnecting with her biological mother, she slept over
at the residence on weekends while exercising visitation with her biological
mother. (Id. at 155, 168, 171). The victim testified that Butler gave her “material
possessions, money” while she was in the residence, and that Butler paid to have
her tongue pierced. (Id. at 162). Both the victim and her biological mother
indicated that Butler signed the parental consent forms for the victim to get her
tongue pierced. (Id. at 163, 207). The victim further testified that, while she was
at Butler’s home, he provided her food, gave her money, and supported her. (Id. at
170). After she was 18, the victim moved into the home with Butler and her
biological mother. (Id. at 159).
{¶19} The majority seizes upon the victim and her biological mother’s
characterization of the money given to the victim as “bribes” for having sex to
conclude that Butler was not financially supporting the victim. Majority Op. at ¶
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9. Aside from the fact that financial support is but one of many factors to consider
in determining whether a person is in loco parentis, the majority fails to recognize
that the jury could classify the money given to the victim as more than mere
bribery3 and fails to recognize the victim’s subsequent testimony that Butler was
supporting her, not to mention the fact that the victim was in Butler’s home three
days per week and on the weekends. State v. Funk, 10th Dist. No. OSAP-230,
2006-Ohio-2068, ¶ 70; Abubakar,
2011-Ohio-6299, at ¶ 10 (“… the element of
financial support implied in the Noggle syllabus is not solely determinative of a
person’s status as in loco parentis. A close, supportive, and protective in loco
parentis relationship need not include provision for the material needs of the
child.”). The jury could have also concluded that Butler was assuming the
obligations incidental to the parental relationship when he signed the parental
consent forms for the victim to get her tongue pierced. There was also testimony
that the victim was under Butler’s care/supervision while the biological mother
was working. Finally, a reasonable juror could infer that Butler was assuming
parental obligations given the significant amount of time that the victim spent with
Butler, and because the victim moved in with him after she turned 18. This is
especially true in light of the fact that Butler was married to the victim’s biological
mother, and the victim wanted to reestablish a relationship with her biological
3
In fact, it seems completely reasonable for a rational juror to conclude that the victim and the mother’s
after-the-fact classification of the money as “bribes” was their effort to diminish their own moral or
criminal culpability in the various debaucheries that occurred, as the case may be.
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mother. Common sense dictates that Butler was involved in parenting the victim,
and the victim even testified that she considered Butler as her stepdad.
{¶20} In a footnote, the majority explains that, at the time the victim was
visiting Butler, “there was no legal relationship between [the victim] and
[Butler’s] wife. They were legal strangers under the law.” Whether the victim
was a “legal stranger” to her biological mother is irrelevant; it is the relationship
between Butler and the victim that is dispositive herein. Furthermore, the
majority’s observation concerning the lack of any legal relationship between the
victim and Butler highlights the very reason that the State prosecuted this case
under an in loco parentis theory, since Butler “assumed the same duties as a
guardian or custodian, only not through a legal proceeding.” Noggle, 67 Ohio
St.3d at 33 (Emphasis added). See also Evans v. Ohio State Univ.,
112 Ohio
App.3d 724, 736 (10th Dist.1996) (“a person standing in loco parentis to a child is
one who had put himself in the situation of a lawful parent assuming the
obligations incident to the parental relation, without going through the formalities
necessary to a legal adoption.”) (Emphasis added). I also find the foster parents’
knowledge that the victim was visiting Butler or their permission to do so
irrelevant to whether Butler stood in loco parentis.
{¶21} Viewing the evidence in a light most favorable to the State, I would
find sufficient evidence that Butler was a person in loco parentis under R.C.
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2907.03(A)(5). For these reasons, I would overrule Butler’s second and fourth
assignments of error and proceed to discuss his remaining assignments of error.
Therefore, I dissent.
/jlr
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