State v. LowryState v. Lowry
Susan R. Wollscheid, P.O. Box 176, Washington C.H., Ohio 43160, for defendant-appellant
O P I N I O N
HUTZEL, J.
{¶1} Defendant-appellant, Harvey Lowry, a Tier II sex offender, appeals his conviction in the Fayette County Court of Common Pleas for failure to register a change of address in violation of
{¶2} Appellant was convicted in 2004 of unlawful sexual conduct with a
{¶3} Both times, appellant registered his address with Deputy Sheriff Robert Russell. Deputy Russell is the deputy in charge of registering sex offenders at the sheriff‘s office. He works on Tuesdays and Thursdays from 8 a.m. to 4 p.m. Sex offenders are informed orally of Deputy Russell‘s work schedule. Registration forms given to sex offenders include Deputy Russell‘s work schedule. The forms also detail what is required of sex offenders regarding their registration duties. Both times, appellant signed and received a registration form.
{¶4} On September 10, Deputy Sheriff Jeff Holbrook went to the Knight‘s Inn to verify appellant‘s address. The deputy discovered that appellant was not registered there and that Room 233 was vacant. An investigation revealed that appellant had moved to the Country Hearth Inn in Washington Court House on September 5 with two individuals, Bret Knisley and Larry Mongold. However, appellant was no longer living there. On September 11, Sergeant David Bivens talked to appellant on the phone and inquired about his address. Appellant told Sergeant Bivens conflicting stories, to wit: (1) he had told his parole officer he was
{¶5} Appellant was arrested on September 13. He was subsequently indicted on one count of failure to register a change of address in violation of
{¶6} At a jury trial, appellant testified that he, Knisley, and Mongold were evicted from the Knight‘s Inn on September 5 (a Sunday) for failure to pay their rent. The three men moved to The Country Hearth Inn the same day. Appellant testified he subsequently tried to report his change of address to Deputy Russell on two separate occasions, once on September 7 (a Tuesday) “in the evening time,” and once on September 9 (a Thursday) “in the evening time again.” Appellant asserted he went to the sheriff‘s office both days before the 4 p.m. deadline. However, Deputy Russell was not in his office on either day. Appellant testified that on both days he talked to other deputies about his situation and was told to come back. On September 10, Mongold told appellant to leave the Country Hearth Inn.
{¶7} Deputy Russell testified that in the event he is not working or in his office when a sex offender comes in, other employees will leave him a note letting him know that a sex offender came in. The staff will also advise the sex offender to come back either later that day (if Deputy Russell works that day) or another day. To Deputy Russell‘s knowledge, appellant did not come to the sheriff‘s office the week of September 7 to advise he had a new residence. Corporal J. Phillip Brown and Lieutenant Larry Walker both have an office located behind Deputy Russell‘s desk. Both testified that in the event a sex offender comes in when Deputy Russell is not in, they leave a note to the deputy letting him know the sex offender came in. They also
{¶8} On November 23, 2010, the jury found appellant guilty as charged. He was subsequently sentenced to four years in prison. Appellant appeals, raising one assignment of error:
{¶9} “THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY WHEN IT WAS IMPOSSIBLE FOR HIM TO COMPLY WITH THE REQUIREMENTS OF OHIO REVISED CODE §2950.05.”
{¶10} Appellant was convicted of violating
{¶11}
{¶12} Appellant argues he was improperly convicted of violating a statute with which it was impossible for him to comply. Appellant asserts it was impossible for
{¶13} Although he has not couched it in the exact terms, we address appellant‘s assignment of error as a challenge to the manifest weight of the evidence.
{¶14} “In determining whether a conviction is against the manifest weight of the evidence, the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 389, 1997-Ohio-52. An appellate court will not reverse a judgment against the manifest weight of the evidence in a jury trial unless it unanimously disagrees with the jury‘s resolution of any conflicting testimony. Id.; State v. Bailey, Butler App. No. CA2002-03-057, 2003-Ohio-5280, ¶22.
{¶15} We first address appellant‘s argument he could not comply with
{¶16} The argument that homelessness is a defense to failing to notify a change of address under
{¶17} In State v. Parrish (Dec. 18, 2000), Licking App. No. 00-CA-0070, 2000 WL 1862821, the Fifth Appellate District held that the purpose of
{¶18} In addition, we note that
{¶19} A sex offender‘s homelessness, therefore, does not excuse the offender from the registration requirements under
{¶20} Appellant also argues it was impossible for him to provide a 20-day notice prior to his change of address, and thus to comply with
{¶21} In Ascione, the defendant was forced by his in-laws to leave their home where he had been staying. He did not notify the sheriff‘s office he no longer lived at that residence until two months later. The trial court found that because the defendant had been evicted by his in-laws, it was impossible for him to provide the 20-day advance notice as required under
{¶22} The Fifth Appellate District reversed the defendant‘s conviction. The appellate court found that because the defendant could not provide the 20-day advance notice due to his eviction, and thus could not be found in violation of
{¶23}
{¶24} Upon reviewing the record, we find that appellant failed to prove it was impossible for him to comply with
{¶25} Appellant testified he went to the sheriff‘s office during the week of September 7 on the days Deputy Russell was working. As stated earlier, Deputy Russell works from 8 a.m. to 4 p.m. on Tuesdays and Thursdays. On direct examination, appellant testified he went to the sheriff‘s office twice that week “in the evening.” However, on cross-examination, he asserted he went to the sheriff‘s office that week around 2:30-3:00 p.m. Appellant also asserted he talked to a deputy on both occasions about his situation and was told to come back. Two deputies who
{¶26} Although there was no written policy in place at the sheriff‘s office for when a sex offender would come in if Deputy Russell was not in his office, there was nonetheless a procedure in place. The two deputies and Deputy Russell all testified that in the event Deputy Russell is not working or in his office when a sex offender comes in, other employees will leave him a note letting him know that a sex offender came in. Deputy Russell testified that he did not see appellant in the sheriff‘s office during the week of September 7. There is no evidence he received a note from the staff telling him that appellant had come to the sheriff‘s office that week.
{¶27} According to his testimony, appellant chose to go to the sheriff‘s office on both occasions mid-afternoon rather than in the morning. There was no evidence that appellant was working on the days he came to the sheriff‘s office. Nothing prevented him from coming back several times on either day. There was also no evidence that appellant was prevented from staying at the sheriff‘s office either day and waiting for Deputy Russell‘s return to his desk.
{¶28} In light of the foregoing, we cannot say that the jury erred in finding appellant guilty of failure to register a change of address pursuant to
{¶29} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.