State v. AlexanderState v. Alexander
DONOFRIO, J. (by assignment)
{¶ 1} Defendant-appellant, Lance Alexander, appeals from a Montgomery County Common Pleas Court judgment convicting him of failure to notify following a jury trial.
{¶ 2} Appellant was convicted of rape in 2004 and sentenced to a
{¶ 3} In 2008, Ohio passed the Adam Walsh Act (AWA), which repealed Megan’s Law. Appellant was subsequently reclassified by the attorney general under the AWA as a Tier III sexual offender. As a Tier III offender, appellant was required to verify his address every 90 days for life. Appellant was also required to notify the sheriff of a change in address prior to moving.
{¶ 4} On January 4, 2010, appellant registered his address with the sheriff indicating that he lived at 609 Chandler Drive in Trotwood, Ohio. An investigation ensued thereafter. Deputy Kevin Kerschner went to the Chandler Drive address to investigate. He did not find appellant there. He then went to 3538 Spanish Villa, where appellant answered the door. According to Detective Kerschner, appellant gave the Spanish Villa address as his current address. Detective Christopher Plummer interviewed appellant where appellant admitted that the Spanish Villa address was his current residence. Sometime later, possibly in April 2010, appellant registered the Chandler Drive address with Detective Kerschner who verified the information.
{¶ 5} On January 21, 2010, a Montgomery County Grand Jury indicted appellant on one count of failure to notify, a first-degree felony in violation of
{¶ 6} Appellant filed a timely notice of appeal on June 28, 2010.
{¶ 7} Appellant raises three assignments of error, the first of which states:
{¶ 8} “APPELLANT’S CONVICTION MUST BE VACATED BECAUSE THE LAW ON WHICH IT IS BASED, OHIO’S ADAM WALSH ACT, IS UNCONSTITUTIONAL AS APPLIED TO APPELLANT BECAUSE IT VIOLATES THE SEPARATION OF POWERS DOCTRINE.”
{¶ 9} Appellant argues here that he could not be convicted of failure to notify because his conviction was based on his reclassification under the AWA, which he asserts is unconstitutional for violating the separation of powers doctrine. He points out that he was originally classified under Megan’s Law, and asserts that his reclassification was unlawful and could not serve as the basis for his conviction. He relies on the Ohio Supreme Court’s decision in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424.
{¶ 10} In 2004, appellant was convicted of rape and sentenced to three years in prison. He was also classified as a sexually oriented offender under Megan’s Law. To comply with Megan’s Law, appellant was required to verify his address annually for a period of ten years.
{¶ 11} As of January 1, 2008, the General Assembly repealed Megan’s Law
{¶ 12} Under both Megan’s Law and the Adam Walsh Act, appellant was required to notify the sheriff of a change in address prior to moving.
{¶ 13} On June 3, 2010, in the middle of appellant’s trial, the Ohio Supreme Court issued Bodyke, 126 Ohio St.3d 266. Bodyke held that the AWA’s reclassification provisions,
{¶ 14} “
{¶ 15} The Ohio Supreme Court recently elaborated on what is to happen to these offenders in State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481. Gingell was convicted of rape in 1981 and was classified as a sexually oriented offender
{¶ 16} Gingell was indicted on and pleaded guilty to a charge of failure to verify his address. The trial court sentenced him to eight years in prison.
{¶ 17} Gingell appealed arguing that the court had erred in retroactively applying
{¶ 18} In the meantime, the Ohio Supreme Court decided Bodyke. Then, in reversing Gingell’s conviction, the Court stated:
{¶ 19} “[P]ursuant to Bodyke, Gingell’s original classification under Megan’s Law and the associated community-notification and registration order were reinstated. Therefore, the current version of
{¶ 20} In the present case, the issue of waiver should initially be addressed. Appellant’s trial began on June 2, 2010, and all of the evidence was presented that day. The Ohio Supreme Court decided Bodyke on June 3. The trial continued on June 4, with closing arguments and jury instructions. After these were completed, counsel and the court had the following conversation:
{¶ 21} “MR. TREHERNE (appellant’s counsel): The only other thing I would state for the record is evidently there was some sort of case that came down either yesterday or today and perhaps this charge is constitutionally or is infringing on my client’s constitutional rights. And if this ever goes up on appeal, they may hear this during the record.
{¶ 22} “THE COURT: Yeah. And, well, just it is June 4 and I believe yesterday, June 3, the Ohio Supreme Court issued a ruling on Ohio’s enactment of the Adam Walsh Act. And the Ohio Supreme Court held that portions of Ohio’s enactment of the Adam Walsh Act were unconstitutional based upon separation of powers arguments.
{¶ 23} “The Court’s not had an opportunity to review that decision. We don’t know whether it applies to Mr. Alexander’s case or not. And certainly if it would,
{¶ 24} “So, we do recognize that there’s been a change of law literally overnight that may be applicable to - -
{¶ 25} “MS. CARTER (prosecutor): During the trial?
{¶ 26} “THE COURT: During the trial that may be applicable to this case and we simply don’t know. And the rules will be as they will with regard to that circumstance.” (Tr. 287-88).
{¶ 27} Given the timing of the Bodyke decision and the fact that appellant brought it up in the trial court when no one was yet certain if it applied, he has not waived this issue on appeal.
{¶ 28} Thus, we will go on to determine what effect, Bodyke has on appellant’s conviction. This identical issue was very recently decided by this court in State v. Johnson, Montgomery App. No. 24029, 2011-Ohio-2069.
{¶ 29} In that case, Johnson pleaded no contest to a violation of
{¶ 30} On appeal, the state conceded that Johnson’s reclassification was unconstitutional per Bodyke. But it argued that because the notification requirement Johnson violated was imposed by
{¶ 31} This court quoted the former and current versions of
{¶ 32} “
{¶ 33} “* * * In its current form,
{¶ 34} This court then went on to find:
{¶ 35} “In State v. Milby, Montgomery App. No. 23798, 2010–Ohio–6344, on the same facts, we held that because the prohibited conduct in failing to give the required prior notification did not change when
{¶ 36} “We find, on the authority of Milby, that the trial court did not err when it found Defendant Johnson guilty of a violation of
{¶ 37} It is clear from a reading of Bodyke, Gingell, and Johnson that appellant’s reclassification under the AWA was unconstitutional.
{¶ 38} Appellant had a duty under both the former and current versions of
{¶ 39} Appellant’s second and third assignments of error share a common factual basis. Therefore, we will address them together. They state:
{¶ 40} “APPELLANT’S CONVICTION IS AGAINST THE SUFFICIENCY OF THE EVIDENCE.”
{¶ 41} “APPELLANT’S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 42} In these assignments of error, appellant argues that his conviction is against both the sufficiency and the weight of the evidence.
{¶ 43} As to sufficiency, appellant argues that under the AWA he would have been required to register his change of address at least 20 days prior to moving. But under Megan’s Law, he would have been required to notify the sheriff of his change in address at least seven days prior to moving. Appellant argues, that pursuant to Bodyke, his old registration requirements were reinstated. Appellant goes on to point out that the state argued that appellant failed to provide a change of address between January 4, and January 13, 2010. He seems to contend that under his reinstated notification requirements, the state did not prove that he failed to register at least seven days before moving.
{¶ 44} Additionally, appellant points to Detective Plummer’s testimony that he was investigating a possible failure to notify that occurred between June and December 2009, not in January 2010.
{¶ 45} Sufficiency of the evidence is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as
{¶ 46} The jury convicted appellant of failure to notify in violation of
{¶ 47} The evidence at trial was as follows.
{¶ 48} Sergeant Julie Stephens is in charge of sexual offenders at the Montgomery County Sheriff’s Office. As such, she keeps the records that document sex offender registration. (Tr. 104). Sgt. Stephens testified that a document regarding appellant’s unemployment compensation was kept in his file. (Tr. 114; Ex. 8). However, she was unsure of who placed it in the file. (Tr. 124). On this document, appellant’s address was listed as 3538 Spanish Villa on August 26, 2009. (Ex. 8).
{¶ 49} James Hamilton is the owner of the condominium located at 3538 Spanish Villa. He testified regarding a lease for that property. Hamilton identified a copy of the lease that was signed by appellant and his wife, McKeesha, on June 25, 2009. (Tr. 136; Ex. 3). The lease term was to run from July 2009 until July 2010. (Tr. 144-45). Hamilton stated that when he looked into appellant’s and
{¶ 50} On cross examination, Hamilton admitted that he had been facing financial problems and needed to lease the Spanish Villa condo. (Tr. 142-43). He further stated that per his agreement with the bank, he had to have someone occupy the premises. (Tr. 146). And he stated that appellant and McKeesha agreed to do some painting at the property. (Tr. 146-47). Additionally, Hamilton stated that the utilities always remained in his name. (Tr. 146).
{¶ 51} Detective Isaiah Kellar testified regarding appellant’s duty to register forms. He stated that appellant registered his current address on January 4, 2010. (Tr. 160). Pursuant to that registration form, appellant listed his current residence as 609 Chandler Drive. (Tr. 160).
{¶ 52} Deputy Kevin Kerschner testified that he was asked to verify appellant’s address. (Tr. 171). In an attempt to do so, Deputy Kerschner went to 609 Chandler Drive on January 6, 2010. (Tr. 173). He knocked on the door at 11:55 p.m. (Tr. 173, 175). Deputy Kerschner stated that a female answered the door. (Tr. 175). He stated that he did not find appellant at the Chandler Drive address so he next went to 3538 Spanish Villa. (Tr. 179). By this time, it was after midnight on January 7. (Tr. 179). Deputy Kerschner knocked on the door at Spanish Villa and appellant answered the door. (Tr. 179). Deputy Kerschner asked appellant what his current address was and appellant gave the Spanish Villa
{¶ 53} Finally, Detective Christopher Plummer testified he was assigned to investigate a possible failure to notify by appellant. He stated that it was in the timeframe of June 2009 to December 2010. (Tr. 188-89). Detective Plummer went to 609 Chandler on January 12, 2010, as part of his investigation. (Tr. 195-96). He did not find appellant there. (Tr. 196). He stated that a male and a female were present there. (Tr. 196). Detective Plummer next went to 3538 Spanish Villa, but no one was home. (Tr. 196). Detective Plummer next interviewed appellant on January 13, 2010. (Tr. 198). During the interview, appellant told Detective Plummer that he was currently residing at 3538 Spanish Villa. (Tr. 202). Appellant then told Detective Plummer that he had been living there for two to three weeks and he was hoping that the community there would accept him. (Tr. 203). However, when Detective Plummer pressed the issue, appellant told him that he had been living there since June 2009. (Tr. 203-204). Detective Plummer testified that appellant told him that he failed to notify the sheriff of his Spanish Villa address because he was afraid he would be evicted once the neighbors learned of his status. (Tr. 204-205). Finally, Detective Plummer stated that appellant told him that he and his wife had only stayed at the Chandler address for a few nights because his wife did not get along with her mother’s boyfriend. (Tr. 205).
{¶ 54} The evidence is sufficient to support appellant’s conviction. Whether
{¶ 55} Furthermore, while Detective Plummer did state that he was investigating a possible failure to notify between June 2009 and December 2010, this does not have any bearing on the evidence discussed above that concerned January 2010, where appellant was living at that time, and the fact that he failed to notify the sheriff prior to his move.
{¶ 56} Accordingly, appellant’s second assignment of error is without merit.
{¶ 57} As to manifest weight, appellant argues that even if his reclassification was constitutional, his conviction should be reversed based on the weight of the evidence.
{¶ 58} In determining whether a verdict is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences and determine whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of
{¶ 59} Appellant first contends that the state relied on a document in his unemployment compensation file from Job and Family Services listing his address as the Spanish Villa residence. However, he argues, none of the witnesses know how the document appeared in his file, who put it there, or when it was placed there.
{¶ 60} While a document was presented reflecting appellant’s address as Spanish Villa from his unemployment compensation file, this was not the only evidence the state presented as to appellant’s address. As noted above, both Detective Plummer and Deputy Kerschner testified that appellant admitted to living at the Spanish Villa address. Thus, the unemployment compensation document was merely cumulative to this testimony. Furthermore, Sgt. Stephens, who is the record keeper for sex offender registrations testified that the document was kept in appellant’s file.
{¶ 61} Appellant next points out that Detective Plummer testified that while appellant admitted to living at the Spanish Villa address for a few weeks, he also testified that appellant admitted to living at the Chandler address. While this is
{¶ 62} Finally, appellant asserts that Hamilton testified that appellant and his wife were fixing up the Spanish Villa residence while they were living on Chandler Drive with her parents and that all utilities remained in Hamilton’s name.
{¶ 63} This is only partially true. Hamilton did testify that appellant and his wife had been living with her parents on Chandler Drive in June 2009. And he testified that all utilities remained in his name. However, Hamilton also stated that appellant and McKeesha signed a lease that ran from July 2009 to July 2010. And as to improvements, he simply testified that appellant agreed to do some painting. Hamilton never stated that appellant and McKeesha were living with her parents while they were fixing up the Spanish Villa condo.
{¶ 64} In sum, the evidence supports the jury’s verdict. Appellant’s January 4, 2010 registration reflected that he was living at 609 Chandler Drive. Yet several witnesses testified that appellant admitted to living at 3538 Spanish Villa in the following days. There was no evidence that appellant ever notified the sheriff that he moved to Spanish Villa. Thus, we cannot conclude that the jury clearly lost its way in finding appellant guilty.
{¶ 65} Accordingly, appellant’s third assignment of error is without merit.
{¶ 66} For the reasons stated above, appellant’s sentence is hereby reversed and this matter is remanded for resentencing as a third degree felony pursuant to law and consistent with this opinion.
GRADY, P.J. and HALL, J., concur.
(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio)