[Cite as State v. Loftis, 2023-Ohio-1687.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY
STATE OF OHIO : : Appellee : C.A. No. 2022-CA-13 : v. : Trial Court Case No. 22-CR-00240 : LYNDON B. LOFTIS : (Criminal Appeal from Common Pleas : Court) Appellant : :
...........
OPINION
Rendered on May 19, 2023
R. KELLY ORMSBY, III and DEBORAH S. QUIGLEY, Attorneys for Appellee
ALEXANDER S. PENDL, Attorney for Appellant
.............
TUCKER, J.
{¶ 1} Defendant-appellant Lyndon B. Loftis appeals from his conviction, upon a
guilty plea, for sexual battery. Loftis contends the trial court’s imposition of a 36-month
sentence was religiously motivated and thus violated his constitutional rights. For the
reasons set forth below, we affirm. -2-
I. Facts and Procedural History
{¶ 2} In August 2022, Loftis was charged by bill of information with one count of
sexual battery in violation of R.C. 2907.03(A)(5) (adoptive parent). He later entered a
plea of guilty to the charge. The adopted child was over the age of 18 when the sexual
conduct occurred.
{¶ 3} At issue in this appeal are the following statements made by the trial court
during the sentencing hearing:
When people come in, not just you, I often don’t understand or get it,
but I often consider just as jurisprudence that the diminished influence or
role of organized churches and faith or religion in the world, that whole
diminishing concept isn’t boding well for the community. No surprise
maybe if you read Revelation, if you do Biblical prophecy, you are all going
to end up in a big dumpster fire at some point in time, so the trend is exactly
what we are seeing.
That doesn’t mean the church has to have a diminishing influence, it
just means religious and social norms and acceptable conduct is
diminishing, which takes it to people doing whatever they want to do
whenever they want to do it without regard to others, which is probably how
you got here today.
Now, I don’t endorse [defense counsel’s] statement that there was
consent because a person is over the age of 18 because consent is a lot of
different things. I just want to go on record his word might have been what -3-
he had to say, but not what I have to believe.
Under the statute, sexual battery, there can be no consent. As the
father of a daughter, it doesn’t matter whose idea it was once anybody and
everybody is over the age of 18. Clearly by law, the conduct is wrong.
What I don’t understand is why you don’t get that because there is [sic] a
thousand different reasons and none of them make any sense. Wrong is
wrong. It’s just wrong.
Should you have heard that in church on Sunday? I don’t know.
Should you have known that innately as a father? I don’t know. But it
seems to most people that that ought to be something you would know, that
we don’t prey as parents on children.
The statutes, the law, every social moray[,] every religious system at
least in terms of the New Testament years have said there is a duty to
protect children. Some societies sacrifice children, but that’s thousands of
years ago. It’s the other way around. Is that lost? Yeah, totally it’s lost.
That doesn’t mean the expectation is not there.
When you have lost that moral compass, you set yourself on a
course to be here. So no consent, it’s predatory conduct, you have a duty
to protect. In the absence of organized social morays, the influence of the
church, common understanding, it then falls on the Court to draw the line to
set the standard.
Tr. p. 14-16. -4-
{¶ 4} The trial court then proceeded to sentence Loftis to a prison term of 36
months and informed him he would be subject to post-release control for a period of five
years. Loftis was also designated a Tier III sexual offender.
{¶ 5} Loftis appeals.
II. Due Process in Sentencing
{¶ 6} Loftis asserts the following as his first assignment of error:
THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE
PROCESS BY IMPROPERLY CONSIDERING RELIGION AS A FACTOR
IN SENTENCING APPELLANT.
{¶ 7} Loftis claims the trial court violated his right to due process because the
sentencing decision was improperly based upon the judge’s religious beliefs.
{¶ 8} In State v. Arnett, 88 Ohio St.3d 208, 217, 724 N.E.2d 793 (2000), the
Supreme Court of Ohio addressed a similar issue and set forth the standard for
determining whether a trial court's use of biblical references during the sentencing hearing
violates a criminal offender's right to due process. The Court stated, “[w]e agree with the
court of appeals that consideration of religious beliefs or religious texts by a sentencing
judge may violate an offender's due process rights when such considerations constitute
the basis for the sentencing decision and thereby undermine the fundamental fairness of
the proceeding.” However, the Court went on to hold that “when a sentencing judge
acknowledges that he or she has consulted a religious text during his or her deliberations
and quotes a portion of that text on the record in the sentencing proceeding, such conduct -5-
is not per se impermissible and does not violate the offender's right to due process, when
the judge adheres to the sentencing procedures outlined in the Revised Code and when
the judge's religious references do not impair the fundamental fairness of the sentencing
proceeding.” Id. at 222. In stressing the limits of its holding, the Court emphasized that
“a sentencing judge's religious comments may violate an offender's due process rights
when they reveal an ‘explicit intrusion of personal religious principles as the basis of a
sentencing decision.’ ” Id., quoting United States v. Bakker, 925 F.2d 728, 741 (C.A.4,
1991). The court in that case ultimately upheld the sentence, concluding that the trial
judge’s reference to the Biblical text was not the basis of the sentencing decision and that
the trial judge adhered to the applicable statutory sentencing provisions. Based upon
these conclusions, the court ruled that the reference to the Biblical text did not violate
Arnett’s due process rights because the reference did not affect the fundamental fairness
of the sentencing procedure. Id.
{¶ 9} Likewise, in this case, despite the court’s religiously-themed statements, we
conclude that Loftis has failed to demonstrate that he was denied due process of law. A
review of the sentencing hearing transcript reveals that the trial court’s statements
regarding the “diminished influence or role of organized churches and faith or religion in
the world” were made in response to the fact that Loftis had indicated his family was a
strong support system “trying to help me to keep my mental capacity straight, make sure
I stay on the straight and narrow.” Tr. p. 10. The statements were also made in
response to defense counsel’s attempt to downplay the seriousness of Loftis’s conduct
by arguing that the sexual conduct had been consensual. Additionally, the trial judge’s -6-
comments did not suggest that he was referencing his own religious beliefs as a guideline
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[Cite as State v. Loftis, 2023-Ohio-1687.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY
STATE OF OHIO : : Appellee : C.A. No. 2022-CA-13 : v. : Trial Court Case No. 22-CR-00240 : LYNDON B. LOFTIS : (Criminal Appeal from Common Pleas : Court) Appellant : :
...........
OPINION
Rendered on May 19, 2023
R. KELLY ORMSBY, III and DEBORAH S. QUIGLEY, Attorneys for Appellee
ALEXANDER S. PENDL, Attorney for Appellant
.............
TUCKER, J.
{¶ 1} Defendant-appellant Lyndon B. Loftis appeals from his conviction, upon a
guilty plea, for sexual battery. Loftis contends the trial court’s imposition of a 36-month
sentence was religiously motivated and thus violated his constitutional rights. For the
reasons set forth below, we affirm. -2-
I. Facts and Procedural History
{¶ 2} In August 2022, Loftis was charged by bill of information with one count of
sexual battery in violation of R.C. 2907.03(A)(5) (adoptive parent). He later entered a
plea of guilty to the charge. The adopted child was over the age of 18 when the sexual
conduct occurred.
{¶ 3} At issue in this appeal are the following statements made by the trial court
during the sentencing hearing:
When people come in, not just you, I often don’t understand or get it,
but I often consider just as jurisprudence that the diminished influence or
role of organized churches and faith or religion in the world, that whole
diminishing concept isn’t boding well for the community. No surprise
maybe if you read Revelation, if you do Biblical prophecy, you are all going
to end up in a big dumpster fire at some point in time, so the trend is exactly
what we are seeing.
That doesn’t mean the church has to have a diminishing influence, it
just means religious and social norms and acceptable conduct is
diminishing, which takes it to people doing whatever they want to do
whenever they want to do it without regard to others, which is probably how
you got here today.
Now, I don’t endorse [defense counsel’s] statement that there was
consent because a person is over the age of 18 because consent is a lot of
different things. I just want to go on record his word might have been what -3-
he had to say, but not what I have to believe.
Under the statute, sexual battery, there can be no consent. As the
father of a daughter, it doesn’t matter whose idea it was once anybody and
everybody is over the age of 18. Clearly by law, the conduct is wrong.
What I don’t understand is why you don’t get that because there is [sic] a
thousand different reasons and none of them make any sense. Wrong is
wrong. It’s just wrong.
Should you have heard that in church on Sunday? I don’t know.
Should you have known that innately as a father? I don’t know. But it
seems to most people that that ought to be something you would know, that
we don’t prey as parents on children.
The statutes, the law, every social moray[,] every religious system at
least in terms of the New Testament years have said there is a duty to
protect children. Some societies sacrifice children, but that’s thousands of
years ago. It’s the other way around. Is that lost? Yeah, totally it’s lost.
That doesn’t mean the expectation is not there.
When you have lost that moral compass, you set yourself on a
course to be here. So no consent, it’s predatory conduct, you have a duty
to protect. In the absence of organized social morays, the influence of the
church, common understanding, it then falls on the Court to draw the line to
set the standard.
Tr. p. 14-16. -4-
{¶ 4} The trial court then proceeded to sentence Loftis to a prison term of 36
months and informed him he would be subject to post-release control for a period of five
years. Loftis was also designated a Tier III sexual offender.
{¶ 5} Loftis appeals.
II. Due Process in Sentencing
{¶ 6} Loftis asserts the following as his first assignment of error:
THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE
PROCESS BY IMPROPERLY CONSIDERING RELIGION AS A FACTOR
IN SENTENCING APPELLANT.
{¶ 7} Loftis claims the trial court violated his right to due process because the
sentencing decision was improperly based upon the judge’s religious beliefs.
{¶ 8} In State v. Arnett, 88 Ohio St.3d 208, 217, 724 N.E.2d 793 (2000), the
Supreme Court of Ohio addressed a similar issue and set forth the standard for
determining whether a trial court's use of biblical references during the sentencing hearing
violates a criminal offender's right to due process. The Court stated, “[w]e agree with the
court of appeals that consideration of religious beliefs or religious texts by a sentencing
judge may violate an offender's due process rights when such considerations constitute
the basis for the sentencing decision and thereby undermine the fundamental fairness of
the proceeding.” However, the Court went on to hold that “when a sentencing judge
acknowledges that he or she has consulted a religious text during his or her deliberations
and quotes a portion of that text on the record in the sentencing proceeding, such conduct -5-
is not per se impermissible and does not violate the offender's right to due process, when
the judge adheres to the sentencing procedures outlined in the Revised Code and when
the judge's religious references do not impair the fundamental fairness of the sentencing
proceeding.” Id. at 222. In stressing the limits of its holding, the Court emphasized that
“a sentencing judge's religious comments may violate an offender's due process rights
when they reveal an ‘explicit intrusion of personal religious principles as the basis of a
sentencing decision.’ ” Id., quoting United States v. Bakker, 925 F.2d 728, 741 (C.A.4,
1991). The court in that case ultimately upheld the sentence, concluding that the trial
judge’s reference to the Biblical text was not the basis of the sentencing decision and that
the trial judge adhered to the applicable statutory sentencing provisions. Based upon
these conclusions, the court ruled that the reference to the Biblical text did not violate
Arnett’s due process rights because the reference did not affect the fundamental fairness
of the sentencing procedure. Id.
{¶ 9} Likewise, in this case, despite the court’s religiously-themed statements, we
conclude that Loftis has failed to demonstrate that he was denied due process of law. A
review of the sentencing hearing transcript reveals that the trial court’s statements
regarding the “diminished influence or role of organized churches and faith or religion in
the world” were made in response to the fact that Loftis had indicated his family was a
strong support system “trying to help me to keep my mental capacity straight, make sure
I stay on the straight and narrow.” Tr. p. 10. The statements were also made in
response to defense counsel’s attempt to downplay the seriousness of Loftis’s conduct
by arguing that the sexual conduct had been consensual. Additionally, the trial judge’s -6-
comments did not suggest that he was referencing his own religious beliefs as a guideline
for his sentencing decision. Instead, his comments were limited to espousing his belief
that the lack of a religious foundation leads to improper behavior.
{¶ 10} More importantly, we conclude that the trial court complied with the
applicable provisions of R.C. Chapter 2929. The record affirmatively demonstrates that
the trial court relied upon the proper statutory factors, including the principles and
purposes of sentencing set forth in R.C. 2929.11 and the seriousness and recidivism
factors contained in R.C. 2929.12. Further, the 36-month sentence was in the mid-range
of the possible 12- to 60-month sentences allowed by R.C. 2929.14(3)(a). The court also
differentiated between Loftis’s sentence and a maximum sentence it had previously
imposed upon a defendant who also had been convicted of a violation of R.C.
2907.05(A)(5). And the court specifically noted that it was constrained from imposing
the maximum sentence because Loftis was a first-time offender with a low likelihood of
recidivism.
{¶ 11} The record does not support the conclusion that the trial judge’s religious
beliefs were the basis for the sentencing decision. Instead, the record supports the
conclusion that the sentence was based on the R.C. 2929.11 principles and purposes of
felony sentencing and the R.C. 2929.12 felony sentencing factors. Thus, the comments
at issue did not affect the fundamental fairness of the proceedings. As such, the first
assignment of error is overruled.
III. Establishment Clause
{¶ 12} The second assignment of error states: -7-
THE TRIAL COURT VIOLATED THE ESTABLISHMENT CLAUSE
OF THE FIRST AMENDMENT BY TAKING ON THE ROLE OF AN
ENFORCER OF RELIGIOUS VALUES.
{¶ 13} Loftis asserts that the trial court’s religious references constituted State
endorsement of religion, which is prohibited by the Establishment Clause of the First
Amendment to the United States Constitution. Thus, he suggests the claimed
Establishment Clause violation should result in the reversal of his sentence.
{¶ 14} The Establishment Clause of the First Amendment to the United States
Constitution states that “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof * * *.” This clause “prohibits the
government's aiding one religion, preferring one religion over another, or aiding all
religions.” Smith v. Null, 143 Ohio App.3d 264, 267, 757 N.E.2d 1200 (4th Dist.2001).
{¶ 15} Loftis does not cite, and we cannot find, any authority to support his
assertion that the trial court’s comments during the sentencing hearing violated the
Establishment Clause. More importantly, irrespective of whether the trial court endorsed
a religious viewpoint, this viewpoint, as discussed, did not affect its sentencing decision.
{¶ 16} The second assignment of error is overruled.
IV. Conclusion
{¶ 17} The judgment of the trial court is affirmed.
LEWIS, J. and HUFFMAN, J., concur. -8-