[Cite as State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783.] 

THE STATE OF OHIO, APPELLANT, v. ROMAGE, APPELLEE. 

[Cite as State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783.] 

Ohio’s child-enticement statute, R.C. 2905.05(A), is unconstitutionally overbroad. 

(Nos. 2012-1958 and 2012-2042—Submitted October 9, 2013—Decided 

March 6, 2014.) 

APPEAL from and CERTIFIED by the Court of Appeals for Franklin County, 

No. 11AP-822, 2012-Ohio-3381. 

____________________ 

SYLLABUS OF THE COURT

Ohio’s child-enticement statute, R.C. 2905.05(A), is unconstitutionally overbroad 

because it sweeps within its prohibitions a significant amount of 

constitutionally protected activity. 

____________________ 

LANZINGER, J. 

{¶ 1} In this case, we must determine the constitutionality of R.C. 

2905.05(A), Ohio’s statute that defines the crime of child enticement. We hold 

that the statute is unconstitutional and affirm the judgment of the Tenth District 

Court of Appeals. 

I. Introduction 

{¶ 2} Appellee, Jason Romage, was charged with criminal child 

enticement, a violation of R.C. 2905.05(A). On October 18, 2010, a Columbus 

police officer filed a complaint in the Franklin County Municipal Court that 

alleged that Romage, “without privilege to do so, knowingly solicit[ed a] child 

under fourteen years of age * * * to accompany [him], * * * without the express 

or implied permission of the parent, guardian, or legal custodian of the child.” 
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The complaint specifically alleged that he had asked a child to carry some boxes 

to his apartment in exchange for money, conduct allegedly constituting a violation 

of R.C. 2905.05(A). Romage entered a not-guilty plea. 

{¶ 3} Before trial, Romage filed a motion to dismiss the complaint 

attacking the criminal child-enticement statute on grounds that it was overbroad. 

Romage cited decisions of appellate courts in Ohio that had struck down R.C. 

2905.05(A) or substantially similar city ordinances for the same reason. See State 

v. Chapple, 175 Ohio App.3d 658, 2008-Ohio-1157, 888 N.E.2d 1121, ¶ 18 (2d 

Dist.); Cleveland v. Cieslak, 8th Dist. Cuyahoga No. 92017, 2009-Ohio-4035, ¶ 7-

9, 16. The trial court agreed and dismissed the complaint. 

{¶ 4} The Tenth District Court of Appeals upheld the judgment of the 

trial court, holding that R.C. 2905.05(A) is unconstitutional because it “sweeps 

within its prohibitions a significant amount of constitutionally protected activity.” 

10th Dist. Franklin No. 11AP-822, 2012-Ohio-3381, 974 N.E.2d 120, ¶ 14. The 

court determined that the statute’s use of the term “solicit” was the problem, since 

“[t]he common meaning of that term encompasses ‘merely asking.’ ” Id. at ¶ 10. 

{¶ 5} The Tenth District certified that its judgment conflicted with the 

judgment of the First District Court of Appeals in State v. Clark, 1st Dist. 

Hamilton No. C-040329, 2005-Ohio-1324. We agreed that a conflict exists on the 

issue whether R.C. 2905.05(A) is unconstitutionally overbroad. 134 Ohio St.3d 

1465, 2013-Ohio-553, 983 N.E.2d 366. We also accepted the state’s discretionary 

appeal. 134 Ohio St.3d 1467, 2013-Ohio-553, 983 N.E.2d 367. 

II. Analysis 

{¶ 6} The state, as appellant, argues that the court of appeals erred in its 

judgment because R.C. 2905.05(A) may be interpreted as being constitutional by 

applying a narrow definition of the word “solicit” or by severing that word from 

the statute. Romage maintains that even without the word “solicit,” R.C. 

2905.05(A) sweeps within its prohibitions a significant amount of innocent 
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activity protected by the First Amendment. He argues that the statute would 

require rewriting to be made constitutional, which this court cannot do. 

Burden of proof in a facial challenge 

{¶ 7} We acknowledge at the outset that enactments of the General 

Assembly enjoy a strong presumption of constitutionality. State ex rel. Jackman 

v. Cuyahoga Cty. Court of Common Pleas, 9 Ohio St.2d 159, 161, 224 N.E.2d 

906 (1967). Thus, a statute will be upheld unless proven beyond a reasonable 

doubt to be unconstitutional. State v. Warner, 55 Ohio St.3d 31, 43, 564 N.E.2d 

18 (1990), citing State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 

N.E.2d 59 (1955), paragraph one of the syllabus. Facial challenges present a 

higher hurdle than as-applied challenges because, in general, for a statute to be 

facially unconstitutional, it must be unconstitutional in all applications. Oliver v. 

Cleveland Indians Baseball Co. Ltd. Partnership, 123 Ohio St.3d 278, 2009-

Ohio-5030, 915 N.E.2d 1205, ¶ 13. 

{¶ 8} An exception to the general rule of presumed constitutionality is 

recognized for laws so broadly written that they “may have such a deterrent effect 

on free expression that they should be subject to challenge even by a party whose 

own conduct may be unprotected.” Members of Los Angeles City Council v. 

Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 80 L.Ed.2d 772 

(1984). This exception is known as the overbreadth doctrine. For a statute to be 

facially invalid on overbreadth grounds, “there must be a realistic danger that the 

statute itself will significantly compromise recognized First Amendment 

protections of parties not before the Court.” Id. at 801. 

“A clear and precise enactment may * * * be ‘overbroad’ if 

in its reach it prohibits constitutionally protected conduct.” 

[Grayned v. Rockford], 408 U.S. [104,] 114, 92 S.Ct. [2294,] 33 

L.Ed.2d [222 (1972)]. In considering an overbreadth challenge, 
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the court must decide “whether the ordinance sweeps within its 

prohibitions what may not be punished under the First and 

Fourteenth Amendments.” Id., 408 U.S. at 115, 92 S.Ct. at 2302, 

33 L.Ed.2d at 231. 

Akron v. Rowland, 67 Ohio St.3d 374, 387, 618 N.E.2d 138 (1993). A statute will 

be invalidated as overbroad only when its overbreadth has been shown by the 

defendant to be substantial. New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 

3348, 73 L.Ed.2d 1113 (1982). We recognize that in construing legislative 

enactments, courts are bound to interpret them in such a way that they are 

constitutional, if it is reasonably possible to do so. State ex rel. Dickman; State ex 

rel. Jackman. 

The purpose and effect of the criminal child-enticement statute

{¶ 9} The statute at issue in this case, R.C. 2905.05(A), provides:1

No person, by any means and without privilege to do so, 

shall knowingly solicit, coax, entice, or lure any child under 

fourteen years of age to accompany the person in any manner, 

including entering into any vehicle or onto any vessel, whether or 

not the offender knows the age of the child, if both of the following 

apply: 

(1) The actor does not have express or implied permission

of the parent, guardian, or other legal custodian of the child in 

undertaking the activity. 

 

1. R.C. 2905.05 was amended effective July 11, 2013. 2013 Sub.S.B. No. 64. The amended 

statute adds subsection (C), which provides: “No person, for any unlawful purpose other than, or 

in addition to, that proscribed by division (A) of this section, shall engage in any activity described 

in division (A) of this section.” The language in R.C. 2905.05(A) remains unchanged. 
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(2) The actor is not a law enforcement officer, medic, 

firefighter, or other person who regularly provides emergency 

services, and is not an employee or agent of, or a volunteer acting 

under the direction of, any board of education, or the actor is any 

of such persons, but, at the time the actor undertakes the activity, 

the actor is not acting within the scope of the actor’s lawful duties 

in that capacity. 

(Emphasis added.) 

{¶ 10} In other words, anyone other than the legal custodian of a child, 

those listed in subsection (A)(2), or those who have the legal custodian’s express 

permission who asks a child under 14 to go with him or her risks a criminal 

charge. Undoubtedly, R.C. 2905.05(A) has an admirable purpose, which is “to 

prevent child abductions or the commission of lewd acts with children.” Chapple,

175 Ohio App.3d 658, 2008-Ohio-1157, 888 N.E.2d 1121, ¶ 17. We have held 

that “protection of members of the public from sexual predators and habitual sex 

offenders is a paramount governmental interest.” State v. Cook, 83 Ohio St.3d 

404, 406, 700 N.E.2d 570 (1998). Certainly, the safety and general welfare of 

children is even more deserving of governmental protection. But a statute that 

defines criminal conduct should not include what is constitutionally protected 

activity. Even though the state has a legitimate and compelling interest in 

protecting children from abduction and lewd acts, a statute intended to promote 

legitimate goals that can be regularly and improperly applied to prohibit protected 

expression and activity is unconstitutionally overbroad. Houston v. Hill, 482 U.S. 

451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). R.C. 2905.05(A) is such a statute. 

Although the statute uses the word “knowingly,” the word modifies “solicit.” The 

statute fails to require that the prohibited solicitation, coaxing, enticing, or luring 

occur with the intent to commit any unlawful act. 
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{¶ 11} Romage argues that this statute criminalizes many innocent acts, 

and in so arguing, he specifically points to the statute’s use of the word “solicit.” 

“The common, ordinary meaning of the word ‘solicit’ encompasses ‘merely 

asking.’ ” State v. Carle, 11th Dist. Ashtabula No. 2007-A-0008, 2007-Ohio5376, at ¶ 17, citing Black’s Law Dictionary 1427 (8th Ed.2004). R.C. 

2905.05(A) fails to require that the prohibited solicitation occur with the intent to 

commit any unlawful act, and there is no requirement that the offender be 

aggressive toward the victim. With respect to those who are not specifically 

exempted (i.e., legal custodians, those with permission from a legal custodian, and 

those listed under R.C. 2905.05(A)(2)), the statute prohibits anyone from asking 

any child to accompany the person in any manner and for any reason. The 

statute’s broad language can support criminal charges against a person in many 

innocent scenarios. 

{¶ 12} Under the statute, each of the following scenarios could result in a 

criminal charge: a primary-school coach offering to drive a team member home 

to retrieve a forgotten piece of practice equipment; a parent at a community 

facility offering to drive another’s child home so she does not have to walk; a 

senior citizen offering a 13-year-old neighborhood child money to help with 

household chores; a 14-year-old asking his 12-year-old friend to go for a bike 

ride. 

The state’s two proposals 

{¶ 13} The state argues that R.C. 2905.05(A) is not overbroad, because 

the term “solicit” should be narrowly construed since the other verbs used—

“entice,” “coax,” “lure”—all imply the use of artifice, deceit, and/or promises to 

induce compliance. The state asserts that in the context of R.C. 2905.05(A), the 

meaning of “solicit” should be narrowed by employing the canon of construction 

noscitur a sociis (a word gains meaning by the company it keeps). This canon 

counsels that a word is given a more precise meaning by the neighboring words 
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7

with which it is associated. United States v. Williams, 553 U.S. 285, 294, 128 

S.Ct. 1830, 170 L.Ed.2d 650 (2008); Ashland Chem. Co. v. Jones, 92 Ohio St.3d 

234, 236-237, 749 N.E.2d 744 (2001). The state asks us to employ one of two 

strategies to save the statute: define the term “solicit” to mean something more 

than just asking or sever the term from the statute. Neither proposed solution 

would be effective. 

{¶ 14} Even if we were to employ a more narrow definition of “solicit,” 

R.C. 2905.05(A) would still criminalize a substantial amount of activity protected 

by the First Amendment. The statute forbids anyone other than the legal 

custodian of a child, those listed in R.C. 2905.05(A)(2), or those who have the 

legal custodian’s express permission to solicit a child under the age of 14 to 

accompany the person “in any manner” for any purpose. The motivation for the 

solicitation is irrelevant.2

 There is no requirement that the offender be aggressive 

toward the victim. One need not have intent to commit a crime. Short of 

rewriting R.C. 2905.05(A), which is the province of the legislature rather than the 

court, we cannot construe the statute in such a way as to find it constitutional. 

The possibility of severance

{¶ 15} As an alternative to narrowly construing the word “solicit,” the 

state argues that the court could sever the word from the statute and thereby save 

the statute from being overbroad. The severance test was first pronounced by this 

court in Geiger v. Geiger, 117 Ohio St. 451, 466, 160 N.E. 28 (1927). Three 

questions are to be answered in determining whether severance is appropriate:

“(1) Are the constitutional and the unconstitutional parts capable of 

separation so that each may be read and may stand by itself? (2) Is 

 

2. A person indicted under R.C. 2905.05 has an affirmative defense if he or she “undertook the 

activity in response to a bona fide emergency situation” or “undertook the activity in a reasonable 

belief that it was necessary to preserve the health, safety, or welfare of the child.” R.C. 

2905.05(D). Nevertheless, one may be indicted when motivation is innocent. 
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the unconstitutional part so connected with the general scope of the 

whole as to make it impossible to give effect to the apparent 

intention of the Legislature if the clause or part is stricken out? (3) 

Is the insertion of words or terms necessary in order to separate the 

constitutional part from the unconstitutional part, and to give effect 

to the former only?” 

Id., quoting State v. Bickford, 28 N.D. 36, 147 N.W. 407 (1913), paragraph 

nineteen of the syllabus. Severance is appropriate only when the answer to the 

first question is yes and the answers to the second and third questions are no. 

After examining R.C. 2905.05(A), we determine that severance of the word 

“solicit” would not meet the Geiger test. 

{¶ 16} Even if the word “solicit” were severed, the remaining language—

that no person may “coax, entice, or lure any child * * * in any manner”—still 

encompasses a wide range of innocent and protected conduct. An elderly person 

offering a child under 14 years old money to come with her to help with chores is 

more than merely asking, and this activity would arguably constitute coaxing, 

enticing, or luring. See Chapple, 175 Ohio App.3d 658, 2008-Ohio-1157, 888 

N.E.2d 1121, ¶ 17. In other words, severance of the single word does not 

transform the statute into a constitutional one. The statute would still capture a 

substantial amount of protected conduct because without a criminal-intent 

requirement, it is still not narrowly tailored to achieve the state’s interest in 

protecting children. 

{¶ 17} The First District’s judgment that was certified as being in conflict 

with the judgment in this case held that R.C. 2905.05(A) is constitutional and not 

overbroad. State v. Clark, 2005-Ohio-1324. Clark, however, is unpersuasive and 

can be distinguished. The Clark court summarily addresses the constitutional 

issue and cites two First District cases from the 1980s that involved an older 
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version of the statute. Id. at ¶ 8, citing State v. Long, 49 Ohio App.3d 1, 2, 550 

N.E.2d 522 (1st Dist.1989); and State v. Kroner, 49 Ohio App.3d 133, 134-135, 

551 N.E.2d 212 (1st Dist.1988). At the time that Kroner and Long were decided, 

R.C. 2905.05(A) prohibited knowingly soliciting, coaxing, enticing, or luring any 

child under the age of 14 “to enter into any vehicle.” Am.Sub.S.B. No. 321, 140 

Ohio Laws, Part I, 1192, 1211. When the statute was amended in 2001, however, 

the prohibition was broadened to prohibit a person from soliciting any child under 

14 to “accompany the person in any manner, including entering into any vehicle.” 

S.B. No. 312, 148 Ohio Laws, Part V, 11668. The Clark court failed to recognize 

that R.C. 2905.05(A) was no longer limited to solicitations to enter vehicles and 

that Kroner and Long therefore provided little persuasive value in determining 

the constitutionality of the statute. In considering only cases that addressed an 

older version of the statute, the Clark court did not analyze the effect of the 

statutory amendments that encompassed innocent conduct when it held R.C. 

2905.05(A) to be constitutional. 

{¶ 18} Appellate courts other than the First District have addressed the 

constitutionality of R.C. 2905.05(A) and held that the statute criminalizes 

constitutionally protected activity. See State v. Goode, 9th Dist. Summit No. 

26320, 2013-Ohio-556, 989 N.E.2d 107, ¶ 8, 12; State v. Chapple, 175 Ohio 

App.3d 658, 2008-Ohio-1157, 888 N.E.2d 1121, ¶ 16-18; Cleveland v. Cieslak, 

8th Dist. Cuyahoga No. 92017, 2009-Ohio-4035, ¶ 14-16 (analyzing a 

comparable municipal ordinance by quoting Chapple). These courts have also 

held that by reaching a substantial amount of constitutionally protected speech 

and associations, the statute goes far beyond its intended purpose of protecting 

children. Goode at ¶ 8, 12; Chapple at ¶ 16-18. We agree. Ohio’s childenticement statute, R.C. 2905.05(A), is unconstitutionally overbroad because it 

sweeps within its prohibitions a significant amount of constitutionally protected 

activity. 
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III. Conclusion 

{¶ 19} R.C. 2905.05(A) does not survive constitutional scrutiny due to its 

overbreadth. We therefore answer yes to the certified question, and we affirm the 

judgment of the Tenth District Court of Appeals. 

Judgment affirmed. 

PFEIFER, O’DONNELL, KENNEDY, and O’NEILL, JJ., concur. 

O’CONNOR, C.J., and FRENCH, J., dissent. 

____________________ 

FRENCH, J., dissenting. 

{¶ 20} In my view, this court can, and should, avoid declaring R.C. 

2905.05(A) unconstitutionally overbroad by construing the term “solicit” 

narrowly. Reading the statute narrowly, I conclude that it is constitutional. 

Therefore, I dissent. 

{¶ 21} Under its broadest reading, R.C. 2905.05(A) applies to certain 

persons who “knowingly” seek the unauthorized “accompan[iment]” of another’s 

young child (age 13 or younger) by conduct or words that “solicit, coax, entice, or 

lure.” To be guilty of criminal child enticement, the actor must lack legal 

“privilege,” R.C. 2905.05(A), meaning “an immunity, license, or right conferred 

by law, bestowed by express or implied grant, arising out of status, position, 

office, or relationship, or growing out of necessity,” R.C. 2901.01(A)(12). The 

actor must also act without the “express or implied permission” of a parent, 

guardian or other legal custodian, R.C. 2905.05(A)(1), and must not fall within 

any of five express categories of actors excluded from liability if they are acting 

within the scope of their duties: (1) law-enforcement officers, (2) medics, (3) 

firefighters, (4) emergency-service providers, or (5) any employee, agent, or 

volunteer of any board of education. Finally, even if the actor falls outside all of 

the foregoing categories, the actor has an affirmative defense if he or she acted “in 

response to a bona fide emergency situation” or “in a reasonable belief that it was 
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necessary to preserve the health, safety, or welfare of the child.” R.C. 

2905.05(D). 

{¶ 22} To strike down R.C. 2905.05(A) as facially overbroad in violation 

of the First Amendment, the majority had to find that the statute punishes “a 

‘substantial’ amount of protected free speech, ‘judged in relation to the statute’s 

plainly legitimate sweep.’ ” Virginia v. Hicks, 539 U.S. 113, 118-119, 123 S.Ct. 

2191, 156 L.Ed.2d 148 (2003), quoting Broadrick v. Oklahoma, 413 U.S. 601, 

615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). In other words, the act of attempting 

to obtain the unauthorized accompaniment of another’s young child must fall 

under a “recognized First Amendment protection[ ].” Members of Los Angeles 

City Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 80 

L.Ed.2d 772 (1984). 

{¶ 23} The majority is silent as to why the speech subject to R.C. 

2905.05(A) qualifies as protected expression, much less how the statute punishes 

a substantial amount of protected expression. But even if I were to accept the 

majority’s premise that there is a First Amendment right to attempt to obtain the 

unauthorized accompaniment of another’s young child for “innocent” purposes, 

this court can avoid a finding of overbreadth by applying a narrower interpretation 

of “solicit.” The majority reads “solicit” out of context and uses the broadest 

definition it can find—“merely asking”—which it borrows from an appellate 

decision. By its use of a sweeping, out-of-context definition, the majority ignores 

the principle that courts should refrain from striking down a statute on First 

Amendment grounds whenever “a limiting construction has been or could be 

placed on the challenged statute.” Broadrick at 613. When reading the word 

“solicit” with its neighboring operative verbs—“coax, entice, or lure”—one can 

reasonably find a more sinister connotation. Solicit can mean to “lead astray” or 

“lure on and esp. into evil.” (Emphasis added.) Webster’s Third New 

International Dictionary 2169 (1986). Applying this narrower construction, I 
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cannot conclude that R.C. 2905.05(A) criminalizes a substantial amount of 

activity protected by the First Amendment. 

{¶ 24} In conclusion, I would answer the certified-conflict question in the 

negative and reverse the judgment of the court of appeals. Because the majority 

has concluded otherwise, I dissent. 

O’CONNOR, C.J., concurs in the foregoing opinion. 

____________________ 

Richard C. Pfeiffer Jr., Columbus City Attorney, Lara N. Baker-Moorish, 

City Prosecuting Attorney, and Melanie R. Tobias, Director of Criminal Appeals 

Unit, for appellant. 

Riddell Law, L.L.C., Douglas E. Riddell Jr., and Bridget Purdue Riddell, 

for appellee. 

 Ron O’Brien, Franklin County Prosecuting Attorney, Steven L. Taylor, 

Chief Counsel, Appellate Division, and Laura R. Swisher, Assistant Prosecuting 

Attorney, urging reversal for amici curiae Ohio Prosecuting Attorneys 

Association and Franklin County Prosecuting Attorney Ron O’Brien. 

Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant 

State Public Defender, urging affirmance for amicus curiae Office of the Ohio 

Public Defender. 

__________________________