2012 Ohio 4258
Ohio Ct. App.2012Background
- Fluharty, a prior rape of a child conviction, is a classified sexual predator awaiting registration obligations.
- After release in 2009, he signed a Notice of Registration Duties requiring 20 days’ notice before a residence change.
- In December 2009 he reported 1115 2nd Street, Canton, with continued obligation to notify of changes; he acknowledged needing to provide an address.
- January 29–30, 2010 he secured a new residence at 601 Brown Avenue NW, Canton, and signed a lease; moved January 30.
- Deputy and sheriff’s office records show attempts to contact the sheriff but no timely notice of the new address; he was arrested February 4, 2010 for failure to notify; the case eventually proceeded to bench trial in September 2011, resulting in a five-year sentence.
- Supreme CourtBodyke decision in 2010 prompted a superseding indictment and remand for proceedings; the appellate court ultimately affirmed the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was it possible to comply with 2950.05(A) given late housing? | Fluharty: impossible to notify 20 days in advance due to late housing. | Fluharty—No; the statute provides an affirmative defense under 2950.05(G)(1). | Overruled; affirmative defense not satisfied by evidence. |
| Is the conviction supported by sufficient weight of the evidence? | Fluharty contends insufficiency/weight issues. | State—evidence supports elements of notice violation beyond reasonable doubt. | Overruled; evidence supports conviction. |
| Was trial counsel ineffective for advising waiver of jury trial? | Ineffective assistance due to counsel pressuring waiver. | Counsel competent; waiver knowingly and voluntarily made. | Overruled; no failure to meet Strickland standard. |
Key Cases Cited
- State v. Bodyke, 126 Ohio St.3d 255 (Ohio 2010) (Adam Walsh Act unconstitutional; raised affirmative defense provision 2950.05(G)(1))
- State v. Ascoine, 2003-Ohio-4145 (Ohio 2003) (address-notification loophole prior to 2005 amendment)
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (thirteenth juror; weight of the evidence standard)
- State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (sufficiency review; standard for appellate review)
- State v. Bradley, 42 Ohio St.3d 136 (Ohio 1989) (ineffective assistance standard; Strickland reliance)
- State v. Hamblin, 37 Ohio St.3d 153 (Ohio 1988) (presumption of competence of counsel)