State v. Noggle - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State of Ohio, Appellant, v. Noggle, Appellee.
[Cite as State v. Noggle (1993), -- Ohio St. 3d ---.]
Criminal law -- Sexual battery - High school teacher and coach
not in loco parents with respect to his student athlete for
purposes of R.C. 2907.03(A)(5) -- Combination with other
facts and circumstances may give rise to an in loco parents
relationship for purposes of R.C. 2907.03(A)(5) -- Person
is in loco parents for purposes of R.C. 2907.03(A)(5), when
-- Motion to dismiss as applied to an indictment.
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.
(No. 92-412 -- Submitted March 9, 1993 -- Decided
August 4, 1993.)
Appeal from the Court of Appeals for Ottawa County, No.
91-OT-024.
Defendant-appellee, Dale G. Noggle, a high school teacher
and coach, was charged with sexual battery as a result of
sexual conduct he allegedly engaged in with a student. He was
specifically charged with violating R.C. 2907.03(A)(5), which
provides as follows:
"No person shall engage in sexual conduct with another, not
the spouse of the offender, when any of the following apply:
"* * *
"(5) The offender is the other person's natural or adoptive
parent, or a stepparent, or guardian, custodian or person in
loco parentis."
The indictment returned against Noggle alleged that an in
loco parentis relationship existed between Noggle and the
student, but did not specify the nature or underlying basis of
that relationship. An amended bill of particulars specified in
pertinent part as follows:
"* * * the said Dale G. Noggle being a person in loco
parentis of said * * *, and the said Dale G. Noggle being such
a person in loco parentis by virtue of his position as a

teacher and school coach * * *."
The trial court granted Noggle's motion to dismiss the
indictment, holding that a teacher and coach is not, as a
matter of law, a person in loco parentis for purposes of the
sexual battery statute. The court of appeals affirmed the
dismissal.
The cause is before this court pursuant to the allowance of
a motion for leave to appeal.

Lowell S. Petersen, Ottawa County Prosecuting Attorney, and
Mark E. Mulligan, Assistant Prosecuting Attorney, for appellant.
Gordon A. Senerius, for appellee.

Pfeifer, J. What Dale Noggle is accused of doing is
wrong in the eyes of his profession and in the eyes of
society. What Dale Noggle is accused of doing, however, is not
considered a criminal wrong by the state of Ohio. Therefore,
we affirm the decision of the court of appeals.
Consensual sexual conduct between persons over sixteen
years of age, as was apparently the situation in this case, is
generally legal in Ohio. The intent of R.C. 2907.03 is to
forbid sexual conduct in a variety of situations where the
offender takes unconscionable advantage of the victim. The
complete list of situations stated in the statute is relevant
to an analysis of the claim against Noggle. The statute reads:
"(A) No person shall engage in sexual conduct with another,
not the spouse of the offender, when any of the following apply:
"(1) The offender knowingly coerces the other person to
submit by any means that would prevent resistance by a person
of ordinary resolution.
"(2) The offender knows that the other person's ability to
appraise the nature of or control his or her own conduct is
substantially impaired.
"(3) The offender knows that the other person submits
because he or she is unaware that the act is being committed.
"(4) The offender knows that the other person submits
because such person mistakenly identifies the offender as his
or her spouse.
"(5) The offender is the other person's natural or adoptive
parent, or a stepparent, or guardian, custodian, or person in
loco parentis.
"(6) The other person is in custody of law or a patient in
a hospital or other institution, and the offender has
supervisory or disciplinary authority over such other person."
The General Assembly envisioned a variety of specific
situations where an offender might take unconscionable
advantage of a victim. The teacher-student relationship is
not, however, included as one of those situations. That fact
is telling. The statute is very specific, going so far as to
forbid sexual conduct between prison workers and prisoners as
well as between hospital workers and patients. Had the General
Assembly sought to forbid sexual conduct between teachers and
students, it would have done so specifically.
The prosecutor in this case creatively attempted to include
teachers within the definition of a "person in loco parentis"
under R.C. 2907.03(A)(5). However, the intent of the
legislature was not to include teachers under that part of the

statute. The Committee Comment to H.B. No. 511 discusses how
(A)(5) fits within the rest of the statute: "Incestuous conduct
is also included, though defined in broader terms than
formerly, so as to include not only sexual conduct by a parent
with his child, but also sexual conduct by a step-parent with
his step-child, a guardian with his ward, or a custodian or
person in loco parentis with his charge."
R.C. 2907.03(A)(5) was quite obviously designed to be
Ohio's criminal incest statute. The traditional family unit
has become less and less traditional, and the legislature
wisely recognized that the parental role can be assumed by
persons other than biological parents, and that sexual conduct
by someone assuming that role can be just as damaging to a
child.
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.
Appellant argues that there may be certain scenarios where
a teacher might be considered as a person in loco parentis.
The only time a teacher could be found to be so would be if the
student lived with the teacher and relied on the teacher for
support. Being a teacher, for purposes of this statute, is no
more relevant than being a firefighter, an accountant, or a
flight attendant.
Additionally, we are instructed by R.C. 2901.04(A) to
strictly construe criminal statutes against the state and to
liberally construe them in the favor of the accused. With that
guideline in mind, it is impossible that a teacher could be
considered a person in loco parentis based solely on his role
as teacher.
Finally, ordinarily, an indictment against a defendant is
sufficient if it states the charge against the defendant in the
words of the statute. Crim. R. 7(B). However, in regard to
this particular statute, the words used are not sufficient.
The phrase "person in loco parentis" is a general phrase
demanding specificity. Indictments based upon the alleged
offender's status as a person in loco parentis should at least
state the very basic facts upon which that status is based.
In this case the amended bill of particulars served the
purpose of stating the basic facts supporting the allegation
that Noggle was a person in loco parentis. The fact that
Noggle was a teacher and coach was insufficient to support an
indictment based upon R.C. 2907.03(A)(5). The court of appeals
correctly affirmed the trial court's dismissal. Accordingly,
the judgment of the appellate court is affirmed.
Judgment affirmed.

A.W. Sweeney, Douglas, Wright, Fain and F.E. Sweeney, JJ.,
concur.
Moyer, C.J., dissents.
Mike Fain, J., of the second appeallate District, sitting
for Resnick, J.