State v. Clemons, 2011 Ohio 1177

Background

Appellant Clemons was convicted by jury in Belmont County for eight counts of unlawful sexual conduct with a minor and two counts of rape, all based on acts in 1994–1998.
Counts for unlawful sexual conduct were charged as third-degree felonies under the 1998 statute; the acts occurred in 1998.
The court sentenced Clemons to three years on each of the eight counts and 10–25 years on the rape counts, consecutive for a total of 44–74 years.
Clemons challenged the convictions, arguing the proper statute in effect at the time of the offenses was corruption of a minor (fourth-degree) and not the post-2000 third-degree provision.
The defense also argued that counts were undifferentiated and that admission of a long interview containing references to other alleged victims violated due process and double jeopardy.
The court remanded to resentence under the lower degree of felony and affirmed the remainder of the convictions after considering suppression, evidentiary, and confrontation issues.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counts were charged under the correct statute for 1998 conduct	Clemons argues the 1998 acts qualified as corruption of a minor (fourth degree) and not third-degree unlawful sexual conduct, violating ex post facto/retroactivity.	The post-2000 amendments should apply retroactively, making counts third degree.	Counts amended to corruption of a minor; remanded for resentencing.
Whether the eight undifferentiated counts violated due process or Double Jeopardy	Counts were undifferentiated and relied on estimate; trial record did not distinguish each act.	There was sufficient detail and corroboration; differentiation is not required for time; sufficient evidence supports eight acts.	Counts sustained; not plain error; convictions supported by evidence and context.
Whether the private wife-interview recording violated Fourth Amendment/electronic surveillance rules	Recording of the private conversation without awareness violated privacy expectations.	He had no reasonable expectation of privacy in the interrogation room; recording was lawful.	No suppression required; objective privacy expectation not present; interview evidence affirmed.
Whether admission of other-acts evidence in the police interview violated Confrontation and evidentiary rules	Statements about other alleged victims were hearsay and testimonial, violating Confrontation Clause and Evid.R. 404(B).	Evidence was admissible for motive/intent; statements were part of a police interview with corroboration elsewhere; no plain error.	Assignments overruled; no reversible plain error or Confrontation violation; effective assistance not shown.

Key Cases Cited

State v. Williams, 103 Ohio St.3d 112 (Ohio Supreme 2004) (retroactivity presumption; apply offense version in effect at time of offense unless clearly retroactive)
State v. Cook, 83 Ohio St.3d 404 (Ohio Supreme 1998) (statutory retroactivity default; explicit intent governs retroactive application)
State v. LaSalle, 96 Ohio St.3d 178 (Ohio Supreme 2002) (procedural vs. substantive retroactivity analysis; explicit intent required for retroactivity)
State v. Walls, 96 Ohio St.3d 437 (Ohio Supreme 2002) (ex post facto considerations for retroactive punishments)
Dobbert v. Florida, 432 U.S. 283 (U.S. Supreme 1977) (retroactive punishment concerns; conformity with ex post facto)
Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005) (undifferentiated counts; due process/double jeopardy concerns; need identifiable offenses)
Crawford v. Washington, 541 U.S. 36 (U.S. Supreme 2004) (Confrontation Clause applies to testimonial statements)
State v. Munn, 56 S.W.3d 495 (Tenn. 2001) (private conversations; privacy expectations in interrogation settings)
State v. Wynter, 2d Dist. No. 97CA36 (Ohio 1998) (police-interview recordings and privacy expectations)