State v. Hooper

386 N.E.2d 1348, 57 Ohio St. 2d 87, 11 Ohio Op. 3d 250, 1979 Ohio LEXIS 372

• Court: Ohio Supreme Court
• Decided: March 21, 1979
• Docket: No. 78-668
• Status: Published

Opinions

William B. Brown, J.

The sole issue raised by the instant cause is whether, under Ohio’s felonious sexual-penetration statute, a finger is an “object.”

R. C. 2907.12 provides, in pertinent part:

“(A) No person without privilege to do so shall insert any instrument, apparatus or other object into the vaginal or anal cavity of another, not the spouse of the offender, when any of the following apply:

“ (1) The offender purposely compels the other person to submit by force or threat of force.” (Emphasis added.)

Appellant argues that the dictionary definition of an object applies to R. 0. 2907.12(A). It then concludes that, since the dictionary defines an object as “anything [or “something”] visible or tangible,”¹ a finger is an object. "We are not persuaded by that reasoning.

“The primary purpose of the judiciary in the interpretation or construction of statutes is to * * * ascertain the legislative will.” Henry v. Central Natl. Bank (1968), 16 Ohio St. 2d 16, paragraph two of the syllabus; 2A Sutherland on Statutory Construction 15, Section 45.05, and cases cited therein. Moreover, where statutory language clearly expresses that legislative intent, that language will not be construed by the courts. Provident Bank v. Wood (1973), 36 Ohio St. 2d 101, 106; Katz v. Dept. of Liquor Control (1957), 166 Ohio St. 229, 231. Words are not absolutes, however. Because their meanings may vary according to context, custom and usage (American Oil Co. v. State Highway Board [1962], 122 Vt. 496, 177 A. 2d 358), statutory language cannot be declared clear or ambiguous until the context in which it appears or the connotations which it may carry are taken into consideration.

R. C. 2907.12 is a sex-offense statute. Of the other 19 jurisdictions which specifically prohibit penetration of an individual’s vagina or anus by something other than the male sex organ, 12 use the term “object” and clearly exclude parts of the body from that term.² While the language used by those 12 jurisdictions does not control our reading of Ohio law,³ it suggests that the broad dictionary definition of an object does not necessarily apply to R. C. 2907.-12(A) and that, therefore, this court must construe the statute in order to determine legislative intent.

R. C. 2907.12(A) prohibits the insertion of “any instrument, apparatus or other object.” The- statute lists three nouns—two specific and the third, general. The gen-' eral term is immediately preceded by the word “other”—a word which refers to the two specific nouns in the list and suggests legislative intent to limit the scope of the general noun to those objects having the characteristics of those specific nouns (Glidden Co. v. Glander [1949], 151 Ohio St. 344, 350). In addition, R. C. 2907.12 is a criminal statute which must be strictly construed against the state ( R. C. 2901.04 [A]).

Since R. C. 2907.12 lists specific terms followed by a catchall word which is linked to those specific terms by the word “other,” and since the statute must be construed strictly, it appears to be subject to the doctrine of ejusdemgeneris.4 State v. Aspell (1967), 10 Ohio St. 2d 1, paragraph two of the syllabus, describes the operation of this doctrine in the following manner:

“Under the rule of ejusdem generis, where in a statute terms are first used which are confined to a particular class of objects having well-known and definite features and characteristics, and then afterwards a term having per-. haps a broader signification is conjoined, such latter term is, as indicative of legislative intent, to be considered as embracing only things of a similar character as those comprehended by the preceding limited and confined terms.”

Once the doctrine of e jus clem generis is applied to Ohio’s sexual-penetration statute, it becomes clear that a finger is not an “object” within the purview of R. C. 2907.-12(A). In general, dictionaries define instruments and apparatuses as implements or tools, or groups of implements or tools. One characteristic common to instruments and apparatuses is that they are inanimate. (The .American Heritage Dictionary, for instance, defines an instrument as a “mechanical implement.”)⁵ Since, under the doctrine of ejusdem generis, nothing may be construed to fall within the catchall term “object” unless it shares the characteristics of instruments and apparatuses, only inanimate objects fall within the purview of R. C. 2907.12(A). A finger is not inanimate. It is part of the human body. Therefore, a finger is not an object under R. C. 2907.12(A), and Ohio’s sexual-penetration statute does not encompass digital penetration.⁶ Since the activity for which the defendant was convicted under R. C. 2907.12 was limited to digital penetration, his conviction must be reversed.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

P. Brown, Sweeney and McCormac, JJ., concur. Celebrezze, C. J., and Herbert, J., dissent. Holmes, J., not participating. McCormac, J., of the Tenth Appellate District, sitting for Locher, J.

1 See the definitions of “object” contained in Black’s Law Dictionary (4 Ed.), and Webster’s Third New International Dictionary.

2 See Ariz. Rev. Stat. Ann., Section 13-1401(3) (1978); Colo. Rev. Stat. Ann., Section 18-3-401(5) (1975) ; Me. Rev. Stat. Ann., Title 17-A, Section 251(1) (C) (1976); Neb. Reissue Rev. Stat., Section 28-408.02(5) (1975); Nev. Rev. Stat., Section 200.364(2) (1977); N. H. Rev. Stat. Ann., Section 632-A:1(V) (1975); N. Y. Consol. Laws Ann., Penal Law, Sections 130.70(1) and 130.00 (McKinney 1978); S. D. Compl. Laws Ann., Section 22-22-2 (1975); Tenn. Code Ann., Section 39-3702(8) (1978); Vt. Stats. Ann.; Title 13, Section 3251(1) (1977); Wis. Stat. Ann., Section 940.225(5) (C) (1978); and Wyo. Stat. Ann., Title 6, Section 6-4-301 (viii).

New York is the only state with a statute equivalent to R. C. 2907.-12, (See N. Y. Consol. Laws Ann., Penal Law, Section 130.70 [1] [McKinney 1978]:) Like Ohio’s sexual-penetration statute, the New York statute focuses solely on the offense of penetrating the vagina or anus. (The other states proscribing such activity do so in sexual battery or sexual imposition statutes or their equivalents.)- The memorandum supporting the New York law describes the behavior its sponsor hoped to discourage in the following manner: “It is not uncommon for sex crime defendants to force foreign objects into the vagina or anal cavities of their victims. Objects such as broom handles, gun, barrels, night sticks, closet poles and hangers have been used.”

3 2A Sutherland on Statutory Construction 337, Section 52.03. Funk v. United States (1933), 290 U. S. 371; In re Sloan (N. D. Ohio 1968), 285 F. Supp. 1.

4 Ejusdem generis • is particularly applicable to criminal statutes which must be strictly cqnstrued. Giant of Maryland, Inc., v. State’s Atty. for Prince George’s Co. (1975), 274 Md. 158, 334 A. 2d 107; State v. Kahalewai (Hawaii 1975), 541 P. 2d 1020.

5 See, also, the definitions of “instrument” and “apparatus” in Black’s Law Dictionary (4 Ed.) and the Random House Dictionary.

6 The General Assembly’s use of the word “insert” in R. C. 2907.12 also supports the conclusion that a finger is not an object under that statute. “Insert” connotes thrusting an object into something with the possibility of leaving it there. (Webster’s Third New International Dictionary defines insert as “to set (something) in * * * [to] put or thrust in * * * to put or introduce into * * * to set in and make fast * * *.”) That connotation does not apply to penetration by a part of the aggressor’s body.

Appellant also argues that ejusdem generis does not apply to the instant statute because all three nouns listed in R. C. 2907.12(A) are general, and each should be treated as if it formed a separate class. We are not persuaded by this argument. The word “object” has a broader meaning than do the words “instrument” and “apparatus.” Moreover, instruments and apparatuses fall within the same class. The main distinction between the two is that the latter is usually a group or collection of the former.