Compelling Prostitution Charge Requires Proof That Defendant Paid or Agreed to Pay An Actual Minor
2007-2193. State v. Bartrum, Slip Opinion No. 2009-Ohio-355.
Summit App. No. 23549, 2007-Ohio-5410. Judgment affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-355.pdf 
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(Feb. 5, 2009) The Supreme Court of Ohio held today that in order to convict a defendant of violating a former version of the state law that prohibits compelling prostitution by a minor, the state must show that the defendant paid or agreed to pay an actual minor to engage in sexual activity. The Court’s 6-1 decision, which affirmed a ruling of the 9th District Court of Appeals, was authored by Justice Judith Ann Lanzinger. [NOTE: The former statute analyzed in this case is no longer in effect. See discussion of the current, amended version of the statute below].
In the case, an informant advised a Cuyahoga Falls police officer that William Bartrum of Summit County had asked the informant to arrange a paid sexual encounter between himself, an adult woman and the woman’s 11-year-old daughter. The officer subsequently recorded telephone calls in which the informant pretended to be a mother willing to prostitute her 11-year-old daughter. During one call, a female police employee pretending to be the daughter participated in the conversation, but no actual minor existed. Bartrum agreed to pay the fictitious mother and daughter $500 to engage in sexual activity with him and made arrangements to meet with them at a hotel. Although he called the informant on the night of the planned encounter and said he was in the car and 10 minutes away, Bartrum did not show up at the hotel or go through with the encounter.
Based on his recorded phone conversations with the fictional mother and daughter and other evidence, Bartrum was subsequently arrested, charged and convicted of compelling prostitution of a minor under former R.C. 2907.21(A)(3). Bartrum appealed. The 9th District Court of Appeals reversed his conviction, holding that a conviction under the charged statute required proof that a defendant had paid or agreed to pay to engage in sexual activity with an actual person who was under the age of 18, and the state had not proved that fact.
The state sought and was granted Supreme Court review of the 9th District’s ruling on the issue of whether a defendant’s payment or agreement to pay for sex with a fictitious person he believes to be a minor was sufficient to support a conviction for compelling prostitution by a minor under former R.C. 2907.21(A)(3).
In today’s decision affirming the 9th District, Justice Lanzinger wrote: “Subsection (3) of former R.C. 2970.21(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. The language of former R.C. 2907.21 is ambiguous as to whether an actual minor is necessary for a conviction.”
Citing prior state and federal court decisions, including this Court’s decisions in State v. Young (1980) and State v. Price (2008), Justice Lanzinger wrote: “We have emphasized that ‘where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.’ R.C. 2901.04(A) provides that the sections of the Revised Code that define offenses ‘shall be strictly construed against the state, and liberally construed in favor of the accused.’ Because we must resolve this ambiguity in favor of the defendant, we hold the statute requires existence of an actual minor.”
In setting forth the Court’s legal reasoning, Justice Lanzinger emphasized that the statute analyzed in today’s decision is no longer in effect. She wrote: “The current version of R.C. 2907.21(A)(3) adds subsection (b), which expands the definition of compelling prostitution to include those who ‘[p]ay or agree to pay a person the offender believes to be a minor, either directly or through the person’s agent, so that the person will engage in sexual activity, whether or not the person is a minor.’ (Emphasis added.) This new language addresses the ambiguity of the former version, making it clear that an actual minor is now not necessary for a conviction of compelling prostitution. Accordingly, our decision in this case is limited to the previous version of the statute effective at the time of Bartrum’s conviction.”
The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.
Justice Terrence O’Donnell dissented, stating that he would dismiss Bartrum’s appeal as having been improvidently accepted by the Court on the basis that the law has already been amended to impose culpability on persons who pay or agree to pay a person they believe to be a minor for sex. “Because the General Assembly has resolved the issue over which we accepted jurisdiction in this case by its amendment of R.C. 2907.21(A)(3), writing an opinion does little to clarify the law,” wrote Justice O’Donnell. “Moreover, because of this amendment, the matter is not likely to arise in the future. Accordingly, in my view this case should be dismissed as having been improvidently accepted.
Contacts
Richard S. Kasay, 330.643.2800, for the state and Summit County prosecutor’s office.
Christopher P. Muntean, 330.535.2839, for William Bartrum.