State v. Bartrum

902 N.E.2d 961, 121 Ohio St. 3d 148
CourtOhio Supreme Court
DecidedFebruary 5, 2009
DocketNo. 2007-2193
StatusPublished
Cited by9 cases

This text of 902 N.E.2d 961 (State v. Bartrum) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bartrum, 902 N.E.2d 961, 121 Ohio St. 3d 148 (Ohio 2009).

Opinions

Lanzinger, J.

{¶ 1} In this case, we accepted the state of Ohio’s sole proposition of law to determine whether an actual minor must exist in order to convict a defendant of a violation of former R.C. 2907.21(A)(3), compelling prostitution of a minor. Because the statute is ambiguous and therefore must be strictly construed against the state, we hold that under former R.C. 2907.21(A)(3) (now R.C. 2907.21(A)(3)(a)), a defendant may not be convicted of compelling prostitution unless an actual minor exists.

I. Case Background

{¶ 2} For agreeing to pay $500 in exchange for sexual activity involving a woman and her fictitious 11-year-old daughter, appellee William C. Bartrum was indicted on one count of compelling prostitution in violation of R.C. 2907.21 in 2006. On February 18, 2006, a confidential informant contacted the Cuyahoga Falls Police Department and reported that a man had contacted her to solicit a mother and 11-year-old daughter for prostitution. A detective subsequently initiated an investigation. The confidential informant exchanged a series of phone calls and text messages with Bartrum, during which she posed as a mother willing to prostitute her minor daughter. During these conversations, she arranged for herself and her fictitious 11-year-old daughter to meet Bartrum for [149]*149sexual activity in exchange for $500. During one phone call, a Cuyahoga Falls police dispatcher posed as the daughter. But no actual minor existed.

{¶ 3} Bartrum agreed to meet on the evening of February 18, 2006, at a motel on Graham Road in Cuyahoga Falls. That night, while Bartrum spoke on the phone with the confidential informant while he was driving toward Graham Road, Bartrum stated that he was within ten minutes of the motel. He never arrived at the motel, later claiming he had become scared and had decided not to go through with the agreement. Bartrum was arrested on February 24, 2006, and charged with compelling prostitution, a felony of the third degree in violation of R.C. 2907.21. A jury found Bartrum guilty.

{¶ 4} Bartrum appealed, contending among other arguments that his conviction was not supported by sufficient evidence. The Ninth District Court of Appeals reversed, holding that a defendant cannot be convicted of violating former R.C. 2907.21(A)(3) unless he pays or agrees to pay an actual minor to engage in sexual activity. State v. Bartrum, Summit App. No. 23549, 2007-Ohio-5410, 2007 WL 2935880, ¶ 31.

{¶ 5} The state of Ohio appealed, and we accepted jurisdiction. State v. Bartrum, 117 Ohio St.3d 1438, 2008-Ohio-1279, 883 N.E.2d 456. The state asks us to hold that “[i]n a prosecution under R.C. 2907.21(A)(3) it is not necessary that there is an actual minor in order to convict the defendant.”

II. Legal Analysis

{¶ 6} During the period of time relevant to this case, R.C. 2907.21 provided:

{¶ 7} “(A) No person shall knowingly do any of the following:

{¶ 8} “ * * *

{¶ 9} “(3) Pay or agree to pay a minor, either directly or through the minor’s agent, so that the minor will engage in sexual activity, whether or not the offender knows the age of the minor[.]

{¶ 10} “ * * *

{¶ 11} “(B) Whoever violates this section is guilty of compelling prostitution.” Am.Sub.S.B. No. 2,146 Ohio Laws, Part IV, 7266-7267.1

[150]*150{¶ 12} Appellant argues that Bartrum’s conviction was supported by sufficient evidence based upon the reasoning found in State v. Adrian, 168 Ohio App.3d 300, 2006-Ohio-4143, 859 N.E.2d 1007, and State v. Goldblatt, 8th Dist. Nos. 87442 and 87462, 2006-Ohio-5930, 2006 WL 3233946. Neither case, however, assists us in our analysis of the present case. In Adrian, the Second District Court of Appeals held that the state’s evidence was sufficient to support the defendant’s conviction for attempted rape. Adrian, at ¶ 24. The attempt statute at issue in Adrian clearly differs from the statute on compelling prostitution in the present case. The attempt statute provides that factual or legal impossibility is not a defense to a charge of attempt if the “offense could have been committed had the attendant circumstances been as the actor believed them to be.” R.C. 2923.02(B). Such language is absent from the compelling-prostitution statute as it was written before the 2008 amendment, and Bartrum was not charged with any attempt offense.

{¶ 13} Goldblatt, likewise, is not instructive in this case. Like Bartrum, the defendant in Goldblatt was charged with and convicted of compelling prostitution after he had agreed to pay for sexual activity with a nonexistent minor. Goldblatt, 2006-0hio-5930, 2006 WL 3233946, at ¶ 1, 43. In affirming the conviction, however, the Eighth District Court of Appeals appears to have mistakenly relied upon Adrian as authority for finding that no actual minor is necessary for a conviction for compelling prostitution. Id. at ¶ 47-49. The Eighth District did not engage in any further discussion of the statute on compelling prostitution; therefore, its analysis does not aid us in our consideration of the present case.

{¶ 14} Former R.C. 2907.21(A)(3) clearly proscribes agreeing to pay a minor to engage in sexual activity. The statute also explicitly states that an offender will be guilty of compelling prostitution regardless of whether the offender knows the age of the minor. In addition, payment may be made either directly to the minor or through the minor’s agent.

{¶ 15} The statute does not address whether payment to or an agreement to pay an actual minor is necessary for conviction. The state argues that payment to or agreement to pay an actual minor is immaterial because Bartrum did seek to pay for sexual activity with a minor and because the statute does not require any sexual activity for a conviction. Although the offense is completed as soon as the offender has agreed to pay a minor for sexual activity, and no sexual activity is required, this does not lead to a conclusion that payment to or an agreement to pay an actual minor is irrelevant. Likewise, although the statute states that an [151]*151offender will be guilty regardless of whether he knows the age of the minor, we agree with the Ninth District that the statute does not explicitly prohibit agreements “believed to be with a minor.” 2007-Ohio-5410, 2007 WL 2935880, ¶ 26.

{¶ 16} Subsection (3) of former R.C. 2907.21(A) prohibits knowingly paying or agreeing to pay “a minor, either directly or through the minor’s agent, so that the minor will engage in sexual activity, whether or not the offender knows the age of the minor.” The statute’s repeated references to “the minor” could reasonably lead one to believe that an actual minor is necessary for conviction. Similarly, the clause addressing payment to “the minor’s agent” might indicate that an actual minor is necessary. It is axiomatic that for an agent to exist, a principal must also exist. See Restatement of the Law 3d, Agency (2006), Section 1.01. In order for a minor’s agent to exist, it would follow that a minor principal must also exist. Although R.C. 2907.21(A)(3) does not explicitly state that an actual minor must exist, there is a reasonable argument that the statute requires this.

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Cite This Page — Counsel Stack

Bluebook (online)
902 N.E.2d 961, 121 Ohio St. 3d 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bartrum-ohio-2009.