[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State v. Pendergrass , Slip Opinion No. 2020-Ohio-3335.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2020-O HIO -3335
T HE S TATE OF O HIO , A PPELLEE , v . P ENDERGRASS , A PPELLANT
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it

may be cited as State v. Pendergrass , Slip Opinion No. 2020-Ohio-3335.] Criminal law—Statutory interpretation—Ru le of lenity—Unlaw ful sexual conduct with a minor—Sentencing enhancement in R.C. 2907.04(B)(4) for previous qualifying conviction re quires that the defendant had the qualifying
conviction when he committed the c harged offense—Court of appeals’ judgment reversed. (No. 2018-1814—Submitted Janua ry 29, 2020—Decided June 17, 2020 .)
A PPEAL from the Court of Appeals for Montgomery County, No. 27814,
2018-Ohio-3813.

_________________ D E W INE , J. {¶ 1} The statute that criminalizes unlawful sexual conduct with a mi nor, R.C. 2907.04, says that an offender is subject to an enhanced p enalty if heS UPREME C OURT OF O HIO

2 “previously has been convicted of” certain listed sex crimes. R .C. 2907.04(B)(4). The question we have to reso lve is “previous to what?” {¶ 2} The state maintains that the enhancement applies if at the time of
indictment the offender has previously bee n convicted of a qualifying sex crime. Gerald Pendergrass, the appellant in this case, says no, the en hancement only applies if at the time of the offense the offender has previ ously been convicted of a qualifying sex crime. Looking to the text of the statute, and mindful of the rule of lenity, we conclude that Penderg rass has the better of the argu ment. As a consequence, we reverse the judgment of the court of appeals be low and reinstate the judgment of the trial court. Facts and procedural history {¶ 3} In September 2016, Pendergrass was convicted of one count of
unlawful sexual conduct with a minor, in violation of R.C. 2907 .04. 1 Then, in September 2017, Pendergrass was ag ain indicted for unlawful sex ual conduct with
a minor. The 2017 indictment alle ged that the criminal behavio r occurred sometime between May 2013 and May 2015—that is, before the September 2016 conviction. This later indictment sought to enhance the charges from fourth -degree felonies to second-degree felonies under R.C. 2907.04(B)(4). That subdivis ion elevates the penalty for violating R.C. 2907.04 i f the defendant “previously has been convicted of” certain sex crimes, includi ng unlawful sexual conduct with a minor. {¶ 4} Pendergrass moved to dismiss the indictment on the ground that the enhancement does not apply whe n the alleged criminal conduct pr edates the prior conviction. The trial court agr eed with Pendergrass and grante d his motion. The state appealed and the court of appeals reversed. The majority of the panel agreed with the state that any convic tion for a qualifying offense pri or to the indictment

1. According to the court of appeals, the 2016 indictment was for criminal behavior that occurred sometime between October 1 and December 1, 2015. 2018-Ohio-381 3, 111 N.E.3d 120, ¶ 2. Although the record does not contain that indictment, the parti es do not dispute these dates.January Term, 2020

3 was sufficient to trigger the R.C. 2907.04(B)(4) enhancement. Because Pendergrass had been convicted o f unlawful sexual conduct with a minor in September of 2016, they reasoned that the 2017 indictment could include the enhancement, even though the cha rged criminal activity predated the prior conviction. 2018-Ohio-3813, 111 N.E.3d 120, ¶ 17; id . at ¶ 26 (Froelich, J., concurring). The statutory text {¶ 5} In interpreting a statute, we begin with the statutory language

. R.C. 2907.04(B) states:

(B) Whoever violates this section is guilty of unlawful
sexual conduct with a minor. (1) Except as otherwise provided in divisions B(2), (3), and (4) of this section, unlawful sexual conduct with a minor is a felony of the fourth degree.
* * * (4) If the offender previously has been convicted of or pleaded guilty to [rape, sexual battery, or unlawful sexual con duct with a minor], unlawful sexual conduct with a minor is a felony of the second degree.

(Emphasis added.) Under dispute here is the proper interpretat ion of the phrase “previously has been convicted” in subdivision (B)(4). Our res olution of that dispute turns on determining the referent of “previously” so as to allow us to answer the question “previous to what?” Is any qualifying conviction previous to the indictment sufficient, or must the conviction have been previou s to the charged
criminal act?S UPREME C OURT OF O HIO

4 {¶ 6} On its face, the statute does not directly answer the question. There is no obvious textual referent to the word “previously.” Nonet heless, both the state and Pendergrass argue that the s tatutory language supports thei r preferred interpretation. Because our initial reading of the statute doe s not provide an obvious answer to the question in front of us, we turn to the a rguments of each party. The state’s argument lacks textual support {¶ 7} The state, in its brief, insists that the plain meaning of the statutory language unambiguously requires only that the qualifying convic tion predate the
new indictment. But t he state doesn’t engage in any actual ana lysis of the statutory text. Instead, it relies largely upon arguments about case law and public policy to support its preferred reading. {¶ 8} The state hangs its hat primarily on this court’s decisions in State v.
Smith , 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, and State v. Brantley , 1 Ohio St.2d 139, 205 N.E.2d 391 (1965). Smith dealt with a sexually-violentpredator specification that imposed a greater penalty on a person convicted of a sexually violent offense when that person was found to be a “se xually violent predator”—defined as one “ ‘who has been convicted of or pleaded guilty to committing * * * a sexually violent offense and is likely to en gage in the future in one or more sexually violent offenses.’ ” (Emphasis in Smith .) Smith at ¶ 8. At issue was whether the sexually-violent-predator enhancement cou ld be premised on the conviction for a sexually violent offense in the same in dictment or whether there had to be a prior conviction for a sexually violent offen se. This court said
that there had to be a convicti on “prior to the indictment”—lan guage upon which
the state seizes. Id. at ¶ 32. But given that the statutory language and the legal question under dispute in Smith are wholly unlike those presented here, it is hard to
see how Smith is a relevant precedent.January Term, 2020

5 {¶ 9} The same goes for Brantley. In that case, a gambling statute imposed a misdemeanor penalty “for the first offense” and a felony pena lty “for each subsequent offense.” Id

. at 140. The defendant violate d the statute in 1961 and
was convicted for that violation in March of 1962. Id . at 141. He violated the statute a second time in February 1962. Id. This court had to decide whether the defendant could be indicted for a “subsequent offense” even tho ugh the second crime had been committed prior to the first conviction. This c ourt reasoned that
since the statute referenced the first or subsequent offense and not first or subsequent conviction , it did not matter that the conviction for the first offense
occurred after the commission of the second offense—the second offense was a subsequent one. Id. For obvious reasons, Brantley is of limited use here: R.C. 2907.04(B)(4) uses totally di fferent language—“previously has been convicted of” rather than “subsequent offense.” And the tempor al order is different—the present case invol ves an enhancement for the firs t-committed crime,
whereas Brantley involved an enhancement for the second-committed crime. {¶ 10} The state and the dissenting opinion argue that had the General Assembly intended that the pre vious conviction predate the crim inal act, it could have said so explicitly. But this sort of argument makes littl e sense when confronted with two plausible competing interpretations of a st atute. 2 Sure, the General Assembly could have said that the heightened penalty ap plies only when the previous conviction predates the offense. But it just as e asily could have said that the heightened penalty app lies whenever the previous convi ction predates the
indictment. So the fact that it said neither proves nothing.

2. Rather, this sort of argument makes sense only when one par ty offers up an interpretation that imposes additional implied constraints on the application of a statute that aren’t based in the plain text. It’s of no use at all in the case of a bona fide ambigui ty in the statutory language. In that sort of case, it will always be equally true for both competing inte rpretations that the General Assembly could have more clearly stated its aims.S UPREME C OURT OF O HIO

6 {¶ 11} In a similar vein, the state and the dissenting opinion contend that Pendergrass’s interpretation woul d require us to insert words i nto the statute so as to limit its application to cases where the qualifying convicti on came before the charged criminal act. Again, this line of reasoning makes litt le sense when confronted with an interpretive dispute arising from a statute’ s failure to explicitly differentiate between two competing interpretations. In such a case, making either interpretation explicit will require inserting additional words . In essence, the state and the dissenting opinion seem t o share the view that because Pendergrass’s interpretation is more restrictive than the state’s, insofar as it makes the enhancement apply in fewer cases, the state’s interpretation wi ns. But when interpreting criminal statutes , close calls don’t go to the sta te, and in the face of an ambiguity, we don’t default to interpreting the statute so as t o allow the state to punish more rather than less. Indeed, the exact opposite is tr ue. See R.C. 2901.04(A). {¶ 12} Finally, the state makes a policy argument based on the fact th at children often delay in reporting instances of sex abuse, and h ence, someone like Pendergrass might avoid the heightened penalty altogether if vi ctims come forward in a certain order. But that argument illustrates one of the p roblems with hypothesizing about the General Assembly’s preferred policy out comes—one tends to hypothesize the policy outcomes that they personally endorse

. {¶ 13} Indeed, if one takes to divining statutory meaning through gues ses about the legislature’s preferred policy outcomes, it is not ha rd to come up with outcomes that cut against the sta te’s interpretation. For exam ple, on the state’s interpretation, when a defenda nt has committed multiple violati ons of R.C. 2907.04, the minimum sentence he faces would depend on the orde r in which the prosecution brings charges. If the prosecution brings charges in a staggered manner, rather than all at once, then the minimum penalty on th e later charged crimes increases. In short, the severity of the penalty is con tingent solely on howJanuary Term, 2020

7 the crime is prosecuted and not on differences in what a defend ant did. As the United States Supreme Court has commented, it is a “strange con sequence[]” for a statute to allow the prosecution to increase the punishment sol ely by altering the manner—i.e., the order—of charging the crimes. Deal v. United States , 508 U.S. 129, 134, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). {¶ 14} Further, the state’s interpreta tion allows for the harsher puni shment of a person for something that he hasn’t yet done at the time h e commits the criminal act. Remember that Pendergrass is being prosecuted for a crime that he is alleged to have committed sometime between May 2013 and May 2015. The previous
conviction that the state now tr eats as triggering the heighten ed penalty was for a crime that occurred towards the end of 2015. Thus, at the time he committed the offense at issue in this appeal, Pendergrass would have reasona bly expected that he was committing a crime that was a felony of the fourth degree, and not a felony of the second degree. {¶ 15} The point is that it is not our role, and we are ill-equipped, to divine statutory meaning based on hunches about policy outcomes we sus pect the legislature might have preferred. And here, there is no more r eason to presume that legislators would want to include a heightened penalty whenever a person is convicted of a crime a second time, than that they would want t o include a heightened penalty only when a person fails to correct his ways again after having once been punished. See Deal at 136. {¶ 16} Thus, after working through the state’s arguments, we still don ’t
have a credible answer to the question “previous to what,” and we are largely where we started. The dissenting opinion suggests that in not accept ing the state’s interpretation, this court is mak ing the mistake of “search[ing ] for ambiguity before looking at the specific languag e of the statute.” Dissenting o pinion at ¶ 33. But as we have explained, the specific language of the statute present s an interpretive puzzle that cannot be glossed over—the word “previously” needs a referent thatS UPREME C OURT OF O HIO

8 can answer the question “previous to what?” And the statutory language provides no obvious answer to that question. While it is true that a co urt ought not create an ambiguity where none exists, it is equally true that a court ou ght not ignore a bona fide interpretive puzzle that must be resolved. {¶ 17} Towards the conclusion of its opinion, the dissent insists that “R.C. 2907.04(B) plainly states that a person must only have an appli cable prior conviction on his or her record at the time new charges are fil ed in order for that offender to be liable for a second-degree felony.” Dissenting opinion at ¶ 37. As should be obvious by now, the sta tute doesn’t plainly state tha t at all. If the General Assembly had said that , then there would be no question regarding the proper interpretation of the s tatute. But it didn’t, so here we are. The best textual argument suppor ts Pendergrass’s interpretation {¶ 18} Pendergrass argues that the plain reading of the text as a whol e—as well as federal and state case la w—supports his interpretation. At the very least, he says, the statute is ambi guous, and thus he should win under the rule of lenity. {¶ 19} We find some merit in his textual argument. Where we are is th at one cannot resolve the interpretive dispute by a casual glance at the face of the text, because there is no obvious referent for the word “previously” in R.C. 2907.04(B)(4) that provides a clear answer to the question “pre vious to what.” Rather, one must draw an infere nce. And while there is no slam -dunk argument for either position here, Pendergrass’s read on the statute at leas t has some textual support. {¶ 20} Looking to the broader statutory language, rather than just subdivision (B)(4) in isolation, re veals some basis for thinkin g that the referent is
the criminal act. {¶ 21} Here again is the relevant s tatutory language in R.C. 2907.04(B ):January Term, 2020

9 (B) Whoever violates this section is guilty of unlawful
sexual conduct with a minor.
* * * (4) If the offender previously has been convicted of [a qualifying offense], unlawful sexual conduct with a minor is a felony of the second degree.

(Emphasis added.) {¶ 22} Read together then, the statute provides: If “whoever violates this section” “previously has been c onvicted” of a qualifying offens e then “unlawful sexual conduct with a minor is a felony of the second degree.” Thus, in context, the passages suggest that the “previously has been convicted” l anguage refers to
“whoever violates.” The combina tion of the present tense “viol ates” with “previously has been convicted” indicates that the existence of the enhancement depends on a previous convicti on at the time of the violation. {¶ 23} To illustrate why this is the most natural reading, consider an other grammatically analogous stateme nt. Consider a house rule that provides:
“Whoever steals cookies from the cookie jar gets no dessert ton ight, and if he has previously been caught stealing from the cookie jar, he gets no dessert for a week.” The intuitive meaning here is that if you steal cookies again a fter you were caught the first time, you don’t ge t dessert for a week. {¶ 24} So, based on the broader statutor y language there is reason to think that the referent for the word “previously” in subdivision (B)( 4) is the violation, not the indictment. This suggests that in order for the enhancemen t to apply, a defendant must have a qualifying conviction when he commits the charged offense.S UPREME C OURT OF O HIO

10 At a minimum, the case should be deci ded in Pendergrass’s favor based on the rule of lenity {¶ 25} As we have explained, looking to the language of the statute, Pendergrass has the more plausib le interpretation. But even if there are remaining doubts, the statute is at least ambiguous. R.C. 2901.04(A)—Ohi o’s statutory rule of lenity—states that “sections of the Revised Code defining of fenses or penalties shall be strictly construed against the state, and liberally co nstrued in favor of the accused.” As we have explained, the function of this rule is t o prevent a court from “interpret[ing] a criminal statute so as to increase the penalt y it imposes on a defendant if the intended scope o f the statute is ambiguous.” State v. Elmore , 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 38; see also United States v.
Santos , 553 U.S. 507, 514, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) (pl urality opinion). Because no sound textua l argument resolves the facia l ambiguity in the
statute in favor of the state’s interpretation, at the very lea st, Pendergrass prevails under the rule of lenity.
Conclusion {¶ 26} We reverse the court of appeals and reinstate the trial court’s judgment. Judgment reversed.
O’C ONNOR , C.J., and K ENNEDY and D ONNELLY , JJ., concur.
S TEWART , J., concurs in judgment only.
F ISCHER , J., dissents, with an opinion joined by F RENCH , J.

_________________ F ISCHER , J., dissenting. {¶ 27} Respectfully, I must dissent. {¶ 28} This case simply asks this court to interpret only the meaning of the phrase “previously has been c onvicted” in R.C. 2907.04(B)(4). And as statutory interpretation involves a questi on of law, this court must revi ew the judgment ofJanuary Term, 2020

11 the court of appeals de novo. State v. Pariag , 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9. When interpreting a statutory provision, our primary concern must be to “ascertain and give ef fect to the intention[s]” of t he legislature. State v. Vanzandt , 142 Ohio St .3d 223, 2015-Ohio- 236, 28 N .E.3d 1267, ¶ 7, citin g Henry
v. Cent. Natl. Bank , 16 Ohio St.2d 16, 242 N.E.2d 342 (1968), paragraph two of the syllabus. To determine legislative intent, we first look to th e plain language of the

statute. Id. “If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary .” (Emphasis added.) State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. , 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). And that is t he exact situation at bar. The Statute Is Unambiguous {¶ 29} R.C. 2907.04 states:

(A) No person who is eighteen years of age or older shall engage in sexual conduct with a nother, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offe nder is reckless in that regard. (B) Whoever violates this section is guilty of unlawful
sexual conduct with a minor. (1) Except as otherwise provided in divisions (B)(2), (3), and (4) of this section, unlawful sexual conduct with a minor is a felony of the fourth degree. (2) Except as otherwise provided in division (B)(4) of this section, if the offender is le ss than four years older than the other person, unlawful sexual conduct w ith a minor is a misdemeanor o f the first degree.S UPREME C OURT OF O HIO

12 (3) Except as otherwise provided in division (B)(4) of this section, if the offender is ten or more years older than the ot her person, unlawful sexual conduct with a minor is a felony of the third degree. (4) If the offender previously has been convicted of or pleaded guilty to a violation of section 2907.02 [rape], 2907.03 [sexual battery], or 2907.04 of the Revised Code or a violation of former section 2907.12 of the Revised Code, unlawful sexual
conduct with a minor is a fe lony of the second degree.

(Emphasis added.) {¶ 30} On its face, this statute is clear. The applicable words are unambiguous: “If the offender previously has been convicted of or pleaded guilty to a [a qualifying offense], unlaw ful sexual conduct with a min or is a felony of the second degree.” Id . That wording could not be clearer. The only way to make R.C. 2907.04(B)(4) ambiguous is to either add or subtract words or concepts, which this court cannot, and absolutely should not, do. See Cincinnati City School Dist. Bd. of Edn. v. State Bd. of Edn. , 122 Ohio St.3d 557, 2009-Ohio-3628, 913 N.E.2d 421, ¶ 19; In re Adoption of Holcomb , 18 Ohio St.3d 361, 366, 481 N.E.2d 613 (1985). The Plain Language of R.C. 2907.04 {¶ 31} A person commits the offense of unlawful sexual conduct with a minor when his actions satisfy t he elements of the offense set forth in division (A) of the statute. However, unlike division (A), subdivision (B)( 4) provides an element that enhances the degree of the offense when the chargi ng document provides notice that the additiona l element is alleged to exist and it is then proved beyond a reasonable doubt that the element does exist. See R.C. 2945.75(A)(1);
State v. Gwen , 134 Ohio St.3d 284, 2012-Ohio-5046, 982 N.E.2d 626, ¶ 11 (“Wh enJanuary Term, 2020

13 the existence of a prior conviction affects the degree of the o ffense * * * it must be proven beyond a reasonable doubt b efore the level of the offens e may be increased”). {¶ 32} Because a qualifying prior conviction has no bearing on whether a person commits a violation of unl awful sexual conduct with a mi nor under R.C. 2907.04(A), the violation giving rise to the subsequent prosecu tion does not serve as any type of defining event that the previous conviction must precede. On the contrary, if division (A) sets f orth the elements of the offens e that must be proved beyond a reasonable doubt for a finding of guilt, while subdivi sions (B)(1) through (4) designate at what level and degree the offense will be char ged based on the presence of an additional element or lack thereof, then it is o nly logical for the phrase “previously has been convi cted” to refer to the period o f time before charges
are filed or an indictment is secured. Had the General Assembl y intended that the prior conviction be entered befor e the alleged violation that i s the subject of the subsequent prosecution, it could have—rather simply and explici tly—stated that requirement, as it has done elsew here in the Revised Code. See, e.g. , R.C. 2950.01(F)(1)(j) (imposing a tier II sex-offender classifi cation when the offender pleads guilty to or is convicted of “[a]ny sexually or iented offense that is committed after the sex offender previously has been convicted of * * * any sexually
oriented offense or child-victim oriented offense for which the offender was classified a tier I sex offender/child-victim offender” [emphas is added]). The legislature did not do so, and t his court should not do so now. {¶ 33} We must be careful not to search for ambiguity before looking at the specific language of the statute—that is, we must avoid the ris k of creating an ambiguity where none exists by getting lost in our attempts to analyze the statute rather than simply looking to th e plain meaning of the statute’ s specific wording at
the outset. We must look to the statute first to determine whe ther its meaning is plain. State ex rel. Herman v. Klopfleisch , 72 Ohio St.3d 581, 584, 651 N.E.2d 995S UPREME C OURT OF O HIO

14 (1995); see also Iddings v. Jefferson Cty. School Dist. Bd. of Edn ., 155 Ohio St. 287, 290, 98 N.E.2d 827 (1951) (“When the meaning is plain from the language employed, an attempt to construe it only tends to make ambiguou s that which is simple and clear”). Since R.C. 2907.04(B) is clear and unambig uous on its face, no further analysis is needed. See Herman at 584; Savarese , 74 Ohio St.3d at 545,
660 N.E.2d 463. {¶ 34} I would reject Pendergrass’s argument that if R.C. 2907.04(B)(4 ) requires only that a conviction be entered prior to a subsequen t indictment, then the term “previously” is rendered meaningless in that provision. I n making this argument, Pendergrass relies upon United States v. Talley , 16 F.3d 972 (8th Cir.1994). In Talley , the 8th Circuit Court of App eals was called upon to interpret the requirements of 18 U.S.C. 924(e) , a federal sentencing-enha ncement provision that applies to “ ‘ a person who violates section 922(g) of this title and has three previous convictions * * * for a violent felony or serious drug offense.’ ” (Empha sis
in Talley .) Id. at 975, quoting 18 U.S.C. 924(e)(1 ). The court reasoned,

If previous convictions meant those convictions a defendant had accumulated prior to sentencin g, Congress coul d have omitted th e word previous because, at sentencing, a district court could never
consider convictions not yet in existence. Thus, adoption of the government’s interpretation of previous convictions effectively
would render the term previous superfluous.

(Emphasis sic.) Id. at 975-976. {¶ 35} Unlike the Eighth Circuit in Talley , in addressing the offense-levelenhancement issue before us, this court should not conclude tha t the word “previously” is rendered meaningl ess unless we interpret R.C. 2 907.04(B)(4) to require any such conviction to b e entered prior to the commissi on of an offenseJanuary Term, 2020

15 charged subsequently. Within R.C. 2907.04(B), there are four s eparate provisions
that outline the offense levels for unlawful sexual conduct wit h a minor. Subdivision (B)(1) states that “ unlawful sexual conduct with a minor is a felony of the fourth degree.” Then, depending on the age of the offender in relation to the victim, subdivisions (B)(2) and (B)(3) either reduce or enhance the offense level or degree. Lastly, subdivision (B)(4 ) states that unlawful sexual conduct with a minor is a felony of the second degree “[i]f the offender previously has been convicted of * * * a violation of section 2907.02, 2907.03, or 2907.04 * * * .” When viewed in light of the provisions in (B)(1) through (3), the term “previo usly” in (B)(4) retains obvious and logical meaning because it clarifies that a person facing charges for
unlawful sexual conduct with a mi nor for the first time, if con victed, is guilty of a fourth-degree felony, not a second-degree felony. If the legis lature had used the phrase “has been convicted” instea d of “previously has been con victed” in subdivision (B)(4), that language could cause confusion and amb iguity as to whether a first-time offense becomes a second-degree felony, on ce a conviction is
entered on that offense. {¶ 36} The inclusion of the word “previously” in R.C. 2907.04(B)(4) al so aids courts when applying that subdivision in cases involving m ultiple counts of unlawful sexual conduct with a minor. If the word “previously” were omitted from the statute, then in a case in w hich a defendant is convicted o f multiple counts of that offense within the same case, the sentencing court could t reat one of the counts as a fourth-degree felony and the remaining counts as second-de gree felonies. This scenario is foreclosed, however, due to the wording of R.C. 290 7.04(B)(4). The inclusion of the word “previous ly” in that subdivision makes it clear that a
conviction for unlawful sexual conduct with a minor is a second -degree felony only when the offender has already been convicted of a qualifying of fense in an earlier

case.S UPREME C OURT OF O HIO

16 Plain Language {¶ 37} This case boils down to nothing more than the plain and unambiguous language of a statute. Although R.C. 2907.04(B)(4) establishes that a prior conviction is an element to be proved beyond a reasonab le doubt, the legislature did not require tha t the conviction be present prio r to the commission of the offense that is subsequently charged. In other words, the fact that a conviction
is an element of the offense tha t must be raised and proven at trial does not mean that the conviction must exist when the charged conduct occurs and not just when the offense is charged. Thus, R.C. 2907.04(B) plainly states t hat a person must only have an applicable prior c onviction on his or her record a t the time new charges
are filed in order for that offe nder to be liable for a second- degree felony. To hold otherwise would be to limit the General Assembly’s ability to e xecute its intent and to, effectively, make this court a legislative policymaker. Th at is not, and should not be, the role of this court. See Arbino v. Johnson & Johnson , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 113; see also Iddings , 155 Ohio St. at 290, 98 N.E.2d 827 (“To construe or interpret what is already p lain is not interpretation but legislation, w hich is not the function of co urts”).
Conclusion {¶ 38} I agree with the state that th e plain and unambiguous language of the phrase “previously has been convi cted” in R.C. 2907.04(B)(4) re quires only that a person have a qualifying prior conviction on his or her record at the time new charges are filed in order for that offender to be liable for a second-degree felony. Nothing, absolutely nothing, in subdivision (B)(4) of the statu te, or even R.C. 2907.04 as a whole, explicitly or impliedly indicates that the General Assembly intended that the prior conviction have preceded the conduct gi ving rise to a subsequent indictment. The plain language of R.C. 2907.04(B)(4 ) is unambiguous—it requires only that the person have been previously convicted of aJanuary Term, 2020

17 qualifying offense before the state initiates criminal proceedi ngs for a violation of
R.C. 2907.04. {¶ 39} For these reasons, I must respe ctfully dissent and would affirm the judgment of the Second Dist rict Court of Appeals.
F RENCH , J., concurs in the foregoing opinion.

_________________ Mathias H. Heck, Montgomery County Prosecuting Attorney, and He ather N. Ketter and Lisa M. Light, A ssistant Prosecuting Attorneys, f or appellee. Timothy Young, Ohio Public Defender, and Victoria A. Bader, Ass istant
State Public Defe nder, for appellant.

_________________